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Where other civil parties call for broadening the effect of declared appeal on the criminal side of the case and on other civil parties, and as far as conditions applying the extensive effect of the appeal are fulfilled, the judicial review court is bound to give effect to the provisions of Art. 373 in the C. Cr. Pr., obviously complying with the principle of non reformatio in pejus. The author argues that a contrary approach would be vulnerable and devoid of legal grounds, intended to set off the extensive effect of appeal from its purposes, which basically leads to the functional requirement of a court of appeal, consisting in examination of the case by extension, to be circumscribed to appeal statements. Thus, argues the author, it would add unacceptably to the law by way of interpretation, contrary to the principle of ubi lex non distinguit nec nos distinguere debemus. -
În legislaþia românã, oportunitatea manifestãrii procurorului în procedura insolvenþei aparþine în exclusivitate acestuia ºi se înscrie în liniile directoare oferite de art. 45 alin. (3) C.pr.civ. Legea nr. 85/2006 nu prevede obligativitatea comunicãrii Ministerului Public a hotãrârii de deschidere a procedurii, iar procurorul nu este titular al acþiunii în acoperirea pasivului. Autorul considerã cã instituirea obligaþiei procurorului de a participa ºi pune concluzii în procedurã ar asigura o apãrare eficientã a ordinii publice, oferind premisele înfãptuirii unei justiþii plenare, în care atât interesele de ordin privat, cât ºi cele generale ar fi ocrotite. „De lege ferenda”, se propune participarea obligatorie a procurorului la acþiunea în acoperirea pasivului.
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In the study with the above title, the author makes a comparison between the regime of pleadings’ invalidity settled under the (Romanian) Code of Civil Procedure in force (since 1865), yet successively amended and supplemented by a series of laws (including Law no. 202/2010 regarding some measures to accelerate the settlement process) and the new Romanian Code of Civil Procedure (Law no. 134/2010, published on July 15th, 2010, but still unenforced), underlining – in a positive manner – modern and flexible legislation, superior to the latter, pointing out, though – critically – the sketchiness and occasional ambiguity of the new Code. -
Under Law no. 286/2009 on the Criminal Code there were established two new legal institutions in the Romanian criminal law: the waiver of penalty and penalty delayed. The author carefully examines the contents and terms of implementation of these criminal legal institutions, terms of cancellation and revocation thereof, with reference to comparative law and brief criminological approaches.
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The author, undertaking an analysis of legal EU regulations in relation to occupational pensions, concludes that the statements under Ruling no. 873/2010 of the Constitutional Court of Romania (only in terms of constitutionality of Law no. 119/2010 with reference to the conversion of public military pensions in “common law” pensions, within the meaning of Law no. 19/2000) are erroneous; consequently, the aforementioned conversion itself, set forth under Law no. 119/ 2010, is unconstitutional, in breaching relevant European law.
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In the study with the above title, the author reviews a recent amendment (under Law no. 202/2010) to Article 153 par. (1) of the current (Romanian) Code of Civil Procedure, which by its wording gives rise among practitioners to a controversy, namely: whether or not the legal entity is presumed to have been or not notified on the term (with the consequence of failure of its summoning on subsequent terms) where the summons was not personally received by the summoned person or a representative (legal or conventional) thereof, but by an employee thereof failing to act in the capacity as its representative. The author judges that non-receipt of summons personally by the summoned person or by his representative, but by another employee of the legal entity shall not denote to have been notified for all subsequent terms.
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Article hereby deals with the legal effects of Decision No. 573/2011 of the Constitutional Court on the plea of unconstitutionality of the provisions of Article 74¹ of the Criminal Code, focusing on its consequences in terms of reinforcing provisions of Article 10 of Law No. 241/2005 on preventing and combating tax evasion, as subsequently amended and supplemented.
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The article analyzes the regulation of trial when admitting guilt and the practical consequences resulting from this procedure. Admission of guilt can be made either by statement of the defendant in court, or under writ, in which case the proceedings may take place without the presence of the defendant. In terms of object of admission, out of the marginal terms of wording under Article 3201 Code of Criminal Procedure Code, it appears that it refers to “guilt”, but from the reading of paragraph (1) of the said wording it appears that admission refers to “committing acts written down in the document instituting the proceedings”. Should we relate this regulatory text to the provisions of Article 263 par. (1) Code of Criminal Procedure, regulating the indictment contents, it is clear that admission is limited to committing the crime exclusively, failing to refer to the legal classification granted under the document instituting the proceedings or any other person to which it relates. Article 3201 in the Code of Criminal Procedure is, as evidenced by the mere reading of its wording, of its marginal name and the topography of the Code of Criminal Procedure, undeniably, a procedural rule designed to accelerate the settlement process and not a rule of substantive criminal law. Bearing this legal nature, the authors argue that Article 3201 Code of Criminal Procedure can not be considered a more favourable criminal law (mitior lex), its provisions falling outside Articles 13-15 Criminal Code.
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The mitigation case provided by Article 3201 Code of Criminal Procedure may coexist with the mitigating circumstance under Article 74 par. (1) point c) Criminal Code, whereas the two mitigating circumstances are different in content (especially in terms of intensity of the readiness of the defendant to cooperate with legal authorities) and different functions (under Article 3201 Code of Criminal Procedure it is rewarded the defendant’s readiness to accept a short and summary procedure resulting in reducing the trial’s duration, whereas under Article 74 par. (1) point c) Criminal Code honesty is rewarded). Therefore, there can not be the case of taking advantage twice of the same mitigating circumstance. If there should be agreed upon the idea that the retention of Article 3201 Code of Criminal Procedure prevents retention of Article 74 par. (1) point c) Criminal Code, then the defendant may prefer not to invoke Article 3201 Code of Criminal Procedure in order to capitalize on the more generous mitigating effects of Article 74 par. (1) point c) Criminal Code.
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In this study, the author comments on a Resolution passed in 2010 by the High Court of Cassation and Justice (Joint Sections), issued following an appeal promoted in the interest of the law and argues that, in contravention law, the principle of nulla poena sine lege is fully justified, both in general, and when the alternative sentencing for the main penalty of fine is performing community service.
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The principle of equality of arms is a jurisprudential principle of the European Court of Human Rights and is an integral part of the right to a fair trial enshrined in the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. Within this article, the author set herself to undertake an analysis of the evolution of this principle, both in terms of jurisprudence and legal point of view.
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Au fost analizate mai multe situaþii în care pedepsele aplicate inculpaþilor trebuiau sã fie descontopite în individualitatea lor pentru fapte concurente ºi apoi aplicarea procedeului judiciar de contopire din nou a acestora cu pedeapsa ce se aplicã în cauza dedusã judecãþii, potrivit dispoziþiilor art. 36 alin. (1) C.pen. Contopirea din nou a pedepselor se referã atât la pedepse integrale aplicate, cât ºi la fracþiunile acestora rãmase neexecutate, ceea ce poate conduce la revocarea ºi contopirea unor resturi de pedeapsã care au mai fost revocate ºi contopite în noua pedeapsã (cu notã criticã).
