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Elementul material al infracțiunii de înșelãciune existã distinct de elementul material al infracțiunii de fals în înscrisuri sub semnãturã privatã, activitatea de falsificare a înscrisurilor și folosirea lor în vederea producerii de consecințe juridice consumându-se la momentul sesizãrii instanței, activitatea ulterioarã desfãșuratã de inculpat de inducere în eroare a pãrților vãtãmate în scopul obținerii unui folos material injust realizând latura obiectivã a infracțiunii de înșelãciune, rãmasã în forma tentativei (cu notã criticã) -
Following the repeal of the legal provisions set forth in the Law. 83/1995 and then in the Law. 130/1999, which generally regulated the situations in which, instead of concluding an individual employment agreement, a civil agreement for services could be concluded, the question arises in which cases and under which conditions such civil agreements can be concluded at present, under legal circumstances. In the article below the author studies this problem and draws up finally, as well, some proposals de lege ferenda to avoid any discussions and controversies in the field.
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This study aims to analyze certain particular problems in the execution of the legal employment relationships, namely the work performed without the conclusion of an individual employment agreement and the noncompliance between the contractual clauses and the manner (in fact) of the execution of the contractual rights and obligations. These cases were grouped under the denomination of work wholly or partially dissimulated. After identifying the situations leading to the dissimulated work, the analysis of the causes that determine it and of the effects that it generates, any proposals are formulated for the purpose of increasing the penalties against those who hide the real way of the execution of the work.
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The question of the public legal aid in civil matters was settled by the Government of Romania by issuing the Government Emergency Ordinance no. 51/2008 on legal aid in civil matters. However, the regulation issued in relation to public legal aid in civil matters fails to cover all situations that may arise in legal practice, one of the unregulated issues referring to the applications made by several people together, in which case the court fees stamp are due jointly.
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This study examines the issue of dialogue between the Court of Justice of the European Union and the constitutional courts of the Member States of the European Union, with special reference to the Constitutional Court of Romania, and from this perspective, the effects of integration into the European Union and the transnational judicial dialogue they produce within the national legal systems.
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This article discusses the material and territorial jurisdiction for the settlement in the matter of land fund disputes. The material jurisdiction is examined in terms of art. 94 item 1. letter j), art. 94 items 3 and 4, Art. 95 item 1 of the Code of Civil Procedure and the special regulations contained in Law no. 18/1991, as republished, and the territorial jurisdiction of the perspective of art. 107 para. (1), art. 117 of the Code of Civil Procedure and the special law. The jurisdiction issue concerns the various actions on the land fund, arising from the enforcement of the Law no. 18/1991, as republished. The regulation of the jurisdiction of the actions settlement in the matter of the land fund, in favor of the same court, is proposed de lege ferenda.
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This article aims to present the main aspects of the legal marriage age, as governed by the new Romanian Civil Code. After a brief introductory part, the legal provisions regulating marriage at the age of majority are examined. Further, the provisions of the Civil Code regulating marriage before the age of majority are examined, and the conditions under which the minor may enter into marriage are debated: the child reaches the age of 16, there are good reasons, the existence of a medical certificate, the existence of consents required by law, respectively the parents’ consent or the consent of one of their parents or if appropriate, of the guardian and in their absence, of the person or authority which was entitled to exercise the parental rights and the guardianship court authorization. In the final part the conclusions drawn from this study are highlighted.
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ACȚIUNE CIVILÃ. ASIGURÃTOR DE RÃSPUNDERE CIVILÃ În conformitate cu dispozițiile Legii nr. 136/1995, instanța dispune obligarea asigurãtorului de rãspundere civilã, în mod direct, în limita obligației sale contractuale, la plata despãgubirilor cãtre partea civilã (Înalta Curte de Casație și Justiție, Secția penalã, decizia nr. 3405 din 23 octombrie 2012). -
Potrivit art. 2781 alin. (8) lit. c) C.pr.pen., judecãtorul pronunțã soluția: „admite plângerea, prin încheiere, desființeazã rezoluția sau ordonanța atacatã și, când probele existente la dosar sunt suficiente, reține cauza spre judecare, în complet legal constituit, dispozițiile privind judecata în primã instanțã și cãile de atac aplicându-se în mod corespunzãtor”(cu notã criticã).
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The article analyzes the specific references that an offence notice has to contain compulsorily, stating an offence of the regime of driving on public roads. Although the elements of the road traffic report shall be determined by the framework law in the contravention matter, respectively the Government Ordinance no. 2/2001, the specificity of the road traffic offenses require certain specific features of these notices, especially about the description way of the act recorded as an offence, about the legal classification of the offense and the application of additional sanctions.
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The article is based on a constant case law of the Constitutional Court of Romania where the expression of “interstitial rule” appears as a leitmotif. Under this rule, any rule of law of the European Union whose content is sufficiently clear, precise and unambiguous, and at the same time proves a certain level of constitutional relevance, will be applied within a compliance control operated by the constitutional court. Therefore, these conditions are examined in detail and also some legal proposition is designed to facilitate the situation of the direct “beneficiary” of such an enforcement – the European litigant.
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The sanction for the non-observance of the right of access to justice in the case of Iosif v. Romania, obliged the Romanian State to take the necessary measures to prevent similar breaches in the future. Undoubtedly, however, a non-unitary case law exists further in the matter of granting the public legal aid in relation to the bail. To allow the inadmissibility of the exemption or decrease of the bail amount – majority in practice – involves, in the author’s opinion, to accept the imposition of a real “obstacle” to the free access to justice. Therefore, the granting of the public legal aid regarding the stamp duty is futile as long as the possibility of granting the public legal aid in relation to the bail payment, is not recognized.
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The Competition Law no. 21/1996 and the secondary regulations issued for its enforcement advise the parties involved in a merger, assessed as having serious doubts with a normal competitive environment, to propose to the Competition Council a number of commitments aimed at removing these doubts and ultimately lead to achieving a decision authorizing the notified transaction. The purpose of this article is to analyze, on the one hand, the current legal framework of the commitments which may be undertaken by the parties in the context of certain mergers, the procedure for the proposal, the undertake and the approval of the commitments and, on the other hand, the practice of the Competition Council on this topic.
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The public order provisions supplement the law of parties. Their relevance is optional and subject to the compliance of the behaviour of the party at fault. In case of non-compliance, specific responsibility for European funds for the public procurement contracts financed from these funds is the legal means that will restore the contractual order. This specific responsibility represents a legal “lever” which allows to the state bodies to intervene in any situation and whenever it finds irregularities in the management of the European funds. The way of creating the legal liability relationship raised more controversy, whose substance will be displayed below. -
In this study, the author examines whether after 1 October 2011 (when the new Romanian Civil Code entered into force), to what extent the creditor may enforce the shares (portions of the share capital of the limited – liability – company) belonging to its debtor, corroborating art. 66 of the Law no. 31/1990 on companies by Art. 1887 of the new Civil Code. One reaches the conclusion that the enforcement of the creditor on the shares in question is more illusory than real. That is, a number of de lege ferenda proposals are made, meaning that the right of enforcement on the debtor’s shares should change from a utopia into a reality.
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The article approaches some aspects of novelty enshrined in the new Code of Civil Procedure, absent in the old regulation. Thus, we examined and analyzed the provisions of art. 244 of the new Code of Civil Procedure, which establishes, as a general rule, the obligation of the court to grant a hearing date for the submission of written observations. The relevance of the art. 244 is also examined in relation to the prosecutor, the exceptions to the general rule are analyzed, as well as the possibility that the parties have to submit addenda to the written observations, upon closure of the debates, according to art. 394 para. (2) of the Civil Procedure Code. Finally, the court proceeding is reviewed in case the party declares a different remedy than that determined by the court, namely if the court decides a wrong remedy.
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Reiterating his view [in that the commercial law is not an autonomous branch of law, but is part of the Romanian civil law, with effect from 1 October 2011, since the new Romanian Civil Code entered into force (Law no. 287/2009, as republished) Code essentially “of monistic nature”], the author criticizes the view (to the contrary) of certain theorists and practitioners, focusing on art. 2557 para. (2) of the Code, as well as the existence – undisputed – of the legal discipline called the international trade law.
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The author aims to discern the will of the legislator, expressed in the text of the art. 1856 of the new Civil Code, titled marginally “workers’ direct action”. This approach has led to some recent doctrinal views by which the direct action is recognized to subcontractors as well, including those who have the status of legal entity. The author argues that the mentioned legal text has to be interpreted as meaning to the recognition of the direct action only to certain individuals, i.e. to workers and subcontractors-individuals (the latter under certain conditions: working alone or employing workers, working with them to achieve the work / to render the services). In the study, certain practical situations are brought to light, in which the question of determining the holders of direct action is raised, in case of the subcontractor agreements. The author considers as possible, “de lege ferenda”, regulating a direct action both in favour of the subcontractors-individuals using workers and in favour of the subcontractors-legal entities, but only for the price of work/rendering of services which excludes the price of the workers’ activity.
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Prin noțiunea de preț serios, astfel cum prevãd dispozițiile art. 1303 C.civ. anterior (1864), se înțelege prețul care constituie o cauzã suficientã a obligației luate de vânzãtor de a transmite dreptul de proprietate asupra bunului ce formeazã obiectul vânzãrii. -
The paper deals with the issue of using hypnosis techniques in crime investigations. The author examines the criminal procedure implications of using such a forensic technique with reference to national legislation and the EU regulations, not avoiding to examine the controversial aspects in the legal literature and jurisprudence; however, the author concludes that the expertise would seem more appropriate to allow the use of hypnosis technique, provided that a clear distinction between hearing a person under hypnosis and the expertise of its discourse under hypnosis is achieved.
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The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with Art 325 of the Treaty on the Functioning of the European Union, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies. For this purpose, Member States shall coordinate their actions and shall organize, together with the Commission, a tight and constant cooperation between competent authorities and shall take measures to counter fraud affecting their own financial interests. Romania, by adopting Law No 78/2000 on preventing, discovering and sanctioning corruption acts, the Law No 161/2003 on regarding certain measures for ensuring transparent exercise of public dignities, positions and business transparency, by prevention and sanctioning corruption, the Law No 61/2011 on the fight against fraud department, Government Decision No 215/2012 on the National Strategy for 2012-2015 and other normative acts, has created the legal framework necessary for the protection of the European Union’s financial interests.
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This study was occasioned by the different manner in which the National Council for Solving Complaints and the courts have construed the laws under which the successful tenderer in the public procurement procedure is granted a right of access to a court, often bringing adverse procedural consequences. Although the jurisprudential solutions analyzed were delivered under the old procedural rules, we find that the latest amendments made to both the Government Emergency Ordinance no. 34/2006 and the Code of Civil Procedure were not a remedy for the deficiencies noted, as the ambiguity of the laws stating that the successful tenderer can be party to the administrative jurisdictional procedure, namely party in a complaint to the court, is a source of legal uncertainty.
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This study proposes a broader specialists’ examination of the scientific work represented by the computer program, and particularly of its usage agreement. Law no. 8/1996 regulations on copyright and related rights concerning the computer program usage agreement were investigated in relation to the rules provided for in same law and established for the patrimonial copyrights capitalization agreements and to the provisions of the Civil Code (Law no. 287/ 2009) and of the new the Civil Procedure Code (Law no. 134/2010). The paper contains the legal literature prevalent views on the computer programs usage agreement and the author’s views about some aspects of the analyzed agreement, leaving open path for research, from various perspectives, of particularly complex and evolving legal issues in the matter.
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Article 7 paragraph 1 of the Law no. 554/2004 regarding Administrative Litigation regulates the “preliminary procedure”; therefore, the establishment that, before addressing the administrative courts, the prejudiced person in his/ her own right or interest (usually by an individual administrative action) shall require the issuing authority (or the superior authority, if any) the (in whole or in part) rescission of the action, within 30 days from the notification date of the action concerned. As the “preliminary procedure” issue presents some peculiarities in the matter of the construction permit [covered by Law no. 50/1991 on the authorization of construction works (republished on 13 October 2004)], the study’s author, examines on the one hand, in detail, the issue of the “preliminary procedure”, and on the other hand, presents the peculiarities mentioned above.
