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Based on art. 6 para. 1 of the (European) Convention of human rights and fundamental freedoms and art. 21 para. (3) of the Romanian Constitution (revised and republished), the author reviews numerous texts in the new (Romanian) Code of Civil Procedure (Law no. 134/2010, published in the Official Gazette of Romania, Part I, No. 485 of July 15th, 2010, yet unenforced), which implements, specifically, the principle of the right to a fair trial within optimal and predictable delay. -
Starting from a finding of the relevant division within the European Commission (i.e., in present-day Europe, women earn on average 17.8% of men’s earnings for the same jobs), the author conducts an extensive and interesting analysis on legislation encompassing primary law (treaties) and secondary law (regulations, directives) of the European Union, as well as on the jurisprudence of the European Union Court of Justice regarding the prohibition of discrimination between men and women in terms of remuneration (salary) (income gender gap). In this context, the author reviews the Romanian legislation and the Romanian Constitutional Court’s resolutions on this issue, altogether.
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In compliance with art. 24 para. 2 of Law no. 130/1996 regarding the collective bargaining agreement (republished on May 19th, 1998), the nullity of the collective bargaining agreement clauses “is ascertained by the relevant court at the instance of the interested party.” The issue reviewed by the author of the above-mentioned research is whether the active procedural legitimation under such circumstances enjoy only parties that, lawfully, conclude collective bargaining agreements (the labor union represented, where appropriate, by the union representative or employees’ representative and management, respectively) or active procedural legitimation (i.e., any employee may be qualified as plaintiff, acting, therefore, ut singuli). The author judges that judicious interpretation of purport of art. 24 para. 2 of Law no. 130/1996 bears negational value (why ut singuli employee is deprived of such right), enjoying none but requiring the representative trade union / employees’ representatives to take legal proceedings.
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Preliminarily, the above study states the classification of interest in the Romanian Civil Law, according to the criterion of interest cause or in relation to the interest rate function. Further, the author reviews in detail - by comparing one to the other, as well - the moratory interest and the compensatory interest in the Romanian Civil Law (both the current Civil Code and the new Romanian Civil Code, published on July 24th, 2007, yet unenforced).
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The present paper makes a critical analysis of the legal norms regarding the validity of the mandates of the local elected counselors’, putting into evidence the way in which a procedure, that must be by excellence a juridical one, was changed into an instrument for the achievement of the political interests of some election competitors. The study demonstrates that the self – assessment procedure of the departmental counselors’ mandates and of the local ones, introduced by modifying the law of the local public administration authorities’ election, within several days before the general election in June 2008, is contrary to the constitutional principles and of the rules that must govern a state of law. The author does not make only simple critical remarks, but he also presents solutions for entering into legality, by settling validation competences of t6he departmental and local counselors, by the courts, according to the procedure applied to the other local elected persons.
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The author debates on the issue of ratione materiae jurisdiction in settling disputes on unemployment allowance assessment and payment regulated by Law no. 76/2002, given that the aforementioned law relates only generically to material jurisdiction of courts, i.e. cases as such are settled by “relevant” courts’ jurisdiction under the law. Undertaking a thorough analysis of purports of Law no. 76/2002, the Code of Civil Procedure, and Law no. 168/1999 on labor disputes, the author concludes that, in this particular case, the relevant jurisdiction lies with the tribunal the plaintiff’s residence / headquarters in registered with, and not the judicial court of law.
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In this study, the author reviews the issue of pilot cases before the European Court of Human Rights (ECHR praetorian jurisprudence, hardly known), insisting also on the most important pilot cases filed with the Court’s jurisdiction, focusing thereupon on the Romanian Case, related to pilot cases’ new procedure, especially on the subject of property restitution.
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This article aims to analyze weight of the assessment report in customizing punishment. The author brings forward a number of theoretical, introductory approaches, which positions the reader within the relevant framework in understanding the tackled topic, including a brief history of customizing punishment and the assessment report, but also a number of legal issues.
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The present paper aims to advance a number of shortcomings of current views on the Criminal Law’s Special Part and to argue in favor of a new concept, prescriptive and integrating, more appropriate to highlight both connections between the two parts of criminal law and between the said law and other fields of law, and the true object of study of law, namely legal judgments (or “value judgments”)
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The emergence of Decree-Law no. 24/1990 led to conflicting interpretations on the period of application, with no specific provisions in this respect. This prompted the article’s author to appeal to the general principles of criminal law in interpreting the law hereby.
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The overview hereby analyses provisions of the Supreme Court’s decision no. III/2002, which regulates interpretation and uniform application of provisions of art. 2151 in the Criminal Code regarding the crime of embezzlement committed by the landlords’ or tenants’ association manager in his capacity as employee. The author substantiates, however, that provisions of decision no. III/2002 may not be applicable to managers employed with landlords’ or tenants’ associations lacking legal entity status, whereas these associations may not enter into individual employment contract, which is why the manager is not employed and therefore, not a civil servant, and, likewise, it may not be applicable to managers employed with landlords’ or tenants’ associations on the strength of legal agreement, whereas, in default of an individual employment contract, they are not employed and therefore, not civil servants.
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As a sanction for non-compliance of obligations incumbent upon the convict during probation, revocation of the conditional suspension of penalty execution is governed by provisions of art. 83 and 84 of the Criminal Code in force. In recent years, legal practice of law courts in Romania are increasingly raising the question as to the deadline revocation of conditional suspension in case of non-compliance of civil responsibilities may be claimed; additionally, law courts embrace a different approach on the subject of procedural background in terms of admissibility of a claim as such. Taking our stand upon these premises, the review hereby aims to clarify some issues that, amid a weak legal framework, generated inconsistent case law in court activities, along with the above mentioned matters, while high interest was taken into consequences of probation period completion during the case trial. On the strength of a systematic review of relevant provisions in the field, and of a scrupulous comparative analysis of provisions set forth in the new Criminal Code and the new Criminal Procedure Code, the article highlights different cases brought to courts’ attention, the author considering that the claim’s enunciation and obtaining the revocation decision should occur before the probation period is completed and, implicitly, prior to the moment the convict’s rehabilitation de jure supervenes.
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The article’s author attempts to identify and customize various approaches on the groundlessness or illegality of the procedure to request and issue audio and video interception and recording releases, both within the criminal procedure field and within the national security field, suggesting a fortiori customized penalties or remedies - where appropriate –. The purpose of the analysis is to eliminate any mistakes or even abuses that may occur during the approval of hidden research means mentioned above, as well as to guarantee everyone’s right to respect for private and family life.
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If, from the sociological point of view, business criminal law exists, its scope varies from one author to another, failing to determine which view is correct and which one is not. Business Criminal Law merely reflects the complexity of social relations and the difficulty to clearly separate distinct human activities. We may consider that business criminal law is addressed to professionals in the economic area and appears as a right of synthesis, regrouping common law criminal offences (theft, fraud, breach of trust, etc.), indictments in the field of economic criminal law or financial or tax criminal law and, naturally, indictments in the field of commercial criminal law.
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Prin natura sa, omul reprezintă cea mai complexă și dinamică expresie a vieții. Știința și religia, încă și acum, în contemporaneitate, își dispută apartenența nașterii sau creației divine a acestuia. Credem că acum are loc cea mai mare schimbare a mentalității, prin acceptarea unei singure perspective asupra genezei noastre, ceea ce constituie revoluția în evoluția creației umanității. Justiția privită din perspectiva conceptului este abstractă, însă ceea ce îi conferă viață este judecătorul.
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Elaborarea acestui scurt studiu de reformă vine într-un moment deosebit: în luna septembrie 2014 se împlinesc 10 ani de când au intrat în vigoare legile din pachetul de reformă a justiției care au schimbat covârșitor modul de organizare și de funcționare a justiției românești. Eu sper că această schimbare este și ireversibilă.
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În prezent, de peste un deceniu, problematica organizării și exercitării profesiei de consilier juridic, precum și a statutului acestei profesii este reglementată prin trei acte normative, și anume: – Legea nr. 514/2003 privind organizarea și exercitarea profesiei de consilier juridic1; – Statutul profesiei de consilier juridic2 (în continuare, Statutul – n.n.); – Regulamentul privind recunoașterea calificării profesionale de consilier juridic a cetățenilor statelor membre ale Uniunii Europene sau aparținând Spațiului Economic European, în vederea admiterii și practicării acesteia în România3
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S-a împlinit anul acesta un deceniu de când primul articol al Legii nr. 51/1995 pentru organizarea și exercitarea profesiei de avocat1 a fost completat prin Legea nr. 255/20042 cu un alineat suplimentar – (3) –, text care, coroborat cu art. 5 alin. (4) din Statutul profesiei de avocat3, interzice constituirea și funcționarea de barouri în afara Uniunii Naționale a Barourilor din România (în continuare, U.N.B.R.), actele de constituire și de înregistrare a unor astfel de entități fiind considerate nule de drept4.
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Problema executării silite este reglementată în mod sumar în instrumentele europene adoptate în domeniul cooperării judiciare civile, astfel încât, în prezent, această materie este guvernată de principiul teritorialității procedurilor de executare. Aceasta înseamnă că procedurile de executare silită sunt reglementate în principal de legislațiile naționale, instanțele statului membru de la locul de executare dispunând de competență exclusivă pentru rezolvarea tuturor incidentelor rezultate din activitatea de punere în executare silită a titlurilor executorii.
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Procedura succesorală, procedură prin care se transpun în practică dispozițiile normative ce vizează succesiunile și transmisiunea acestora, poate fi după natura sa o procedură litigioasă sau una nelitigioasă, aceasta ținând strict de competența acordată instanțelor de judecată sau notarului public.
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Unlike the old Civil Code, in the system of the new Civil Code (NCC) the assignment of claim enjoys a superior regulation, including as regards the problems of the publicity formalities stricto sensu. In this regard, the publicity formalities towards third parties, separate from those necessary for informing the assigned debtor, provide the possibility of taking knowledge about the assignment by any person concerned (successive assignees, mortgage creditors, pursuing creditors etc.). In principle, the assignment becomes opposable against third parties only from the moment of registration in the Electronic Archive for Security Interests in Movable Property [Article 1583 (2) of NCC]. This is the general rule of common law, from which the law also provides exceptions when considering the nature or the source of the assigned claim. The main exceptions refer to the assignments of real estate incomes and to the seizure of a real estate mortgage claim, which are noted in the land register [Article 902 (2) points 6 and 15 of NCC]. From the date of registration of the assignment in the public register, the assignee’s rights, that is the claim right and all its ancillary rights, including movable property and real estate mortgages, become opposable to third parties. The sanction of non-registration is the non-opposability of the assignment against the third parties concerned.
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The regulation of the movable property mortgage in the new Romanian Civil Code (Articles 2387–2419) was a necessity and it represented an important element of reform in matters of guarantees. The importance of the movable property increases every day, so that the Romanian legislator had to adjust to the permanently changing economic and social requirements. In the opinion of the author and, partly, in disagreement with other authors, the movable property mortgage agreement has the legal nature of a constitutive, unilateral, free, solemn and public agreement, being ancillary to the claim which it guarantees. This paper examines the solemn character, the constitutive character and the free character of the movable property mortgage, because it is only about these characters that the author has some key observations.
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As compared to the former civil enactment which established a special immovable property privilege of architects, entrepreneurs, stonemen and other workers employed to build, rebuild or repair edifices, canals or other works, the new Romanian Civil Code provides a legal real estate mortgage for architects and entrepreneurs who have agreed with the owner to build, rebuild or repair a building. Beyond a slight restriction of the scope of application, the Romanian legislator has opted for a simplification of the conditions of recognition of the legal guarantee, which is praiseworthy and useful for the practice. However, the lapidary drafting of the normative texts does not provide answers to all the questions that the practitioners may ask themselves. The author has attempted in this paper to provide an image as accurate as possible of these questions, with the mention that the most important is the need for a fast answer (from the legislator or from the doctrine) to the question whether this legal mortgage guarantees only the payment of some amounts of money or also of any other type of claim which could represent the price of works contract. The issue essentially and immediately affects the scope of application of the guarantee and, consequently, a solution is required in order to ensure the predictability necessary for the economic circuit.
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This study tends to be a partly critical analysis of the provisions of Article 117 of the Civil Procedure Code, and also an approach to bring to the attention of „doctrinarians”, „judges” and, especially, of the „legislator” the existence of a legislative gap in respect of the exclusive territorial jurisdiction of the courts in the situation that „disputes referring to real rights concern two or more estates located in the territorial districts of different courts”.
