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The analysis of the offenses against safety on public roads refers hereinafter to four other offenses (leaving the scene of an accident or changing or erasing evidence of the accident; preventing or hindering traffic on public roads; failure to comply with the tasks regarding the technical inspection or the performance of repairs and the performance of unauthorized works in the public road area), continuing our approach to present to the reader our personal option regarding this set of offenses, presently provided for in an emergency ordinance. Key words: vehicle, car, leaving the scene of an accident, changing the scene of an accident, erasing evidence of the accident, carrying out unauthorized works on the public road, preventing traffic, hindering traffic, poor performance of the technical inspection for vehicles and cars. -
The institution of conditional release under judicial control regulated in Title IV, Chapter I, Section V of the Criminal Procedure Code, has been analyzed succinctly in the Romanian specialized legal literature. The problems arising in the context of erroneous interpretations given in practice to the legal texts regulating this institution by the courts of law derive, according to the author’s opinion, from the insufficient approach at doctrinal level of the way in which the conditions under which this measure can be ordered should be interpreted. Of course, the situation should also be analyzed in the light of the particular situation of each case. Thus, the article written by the author intends to analyze the conditions under which conditional release can be ordered after addressing an actual situation submitted to judgment by the courts.
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The existence of a state, situation or particular circumstance in which the offence is committed may ingrain it a character of legitimacy and in such circumstances it is lacking one of the essential features of the crime, the unjustified nature of the act committed. In the category of supporting causes which result in the removal of the essential trait of crime consisting in the anti-juridical character is also included the consent of the aggrieved party in respect with the commission of the crime set forth in the criminal law. In order to be ascertained as supporting cause, the aggrieved party’s consent must belong to the holder of the protected social value or to his legal or conventional representative, to be freely expressed, to be abreast with the time and to target a specific social value or values endangered by committing deliberate crimes. Consent of the aggrieved party does not preclude the unjustified character of the offence in case of criminal offenses against a person’s life, in the event of offenses whose justified effect is excluded by law, as well as in the event of criminal offences whose main passive entity is the state, and the aggrieved party acts as a secondary passive entity. -
The study aims to analyze how the doctrine and jurisprudence, as well, have interpreted the provisions of Art. 32 of Law 18/1991, in over 20 years of applicability of the law’s wording mentioned. As it shall be ascertained, the law’s wording, improperly designed, can not be logically interpreted so as to produce the effects aimed at by the legislator, unless the restraint term of 10 years starts (has already started) its applicability since the issue date of the title deed.
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In Romania, the Civil Procedure Code in force shall be repealed and replaced by the new Civil Procedure Code, which was published on July 15, 2010, but has not come into force yet (the time when it comes into force has not been legally established yet). Until such time, Law No. 202/2010 regarding certain measures to accelerate disputes resolution (The “Small Reform” Law) was enacted and came into force in October 2010. In this study, the author makes a comparative examination of the following issues: the exception of the lack of competence, competence conflicts and the transposition to the current Civil Procedure Code, by taking into consideration Law No. 202/2010 and, respectively, the new Civil Procedure Code. The author reaches the conclusion that, sometimes, in law, the regulations of the current Code are better than the regulations of Law No. 202/2010 or of the new Civil Procedure Code; also, there are contradictions between the new laws (Law No. 202/2010 and the new Civil Procedure Code). Given these facts, certain de lege ferenda proposals are laid down. -
The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding. -
The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability.
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In this study - which covers a number of proper approaches on the phenomenon of „political migration” within the Romanian Parliament – the author examines beforehand the role of political groups in establishing the political configuration of parliament, after which she analyzes at large the political migration phenomenon, including regulatory matters (constitutional and statutory), as well as the case law of the Constitutional Court in the matter. Finally, in the conclusions, the author sets forth some of her own views on the phenomenon of „political migration” within the Romanian Parliament, in the context of current political and legal scene of the Romanian State. -
Acþiunea în daune-interese care vizeazã antrenarea rãspunderii civile delictuale a AVAS în temeiul art. 998-999 C.civ. nu atrage aplicarea dispoziþiilor legii speciale cu privire la competenþa curþii de apel în primã instanþã, ci a celor ale art. 1 pct. (1) lit. a) C.pr.civ., fiind vorba despre un litigiu patrimonial (Înalta Curte de Casaþie ºi Justiþie, Secþia comercialã, decizia nr. 1896 din 21 mai 2010).
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Availability and predictability of law – essential attributes of quality thereof – are and will certainly be some of the most common grounds for the conventional and constitutional control, not only because these legal requirements stand for fundamental premises of regulating and self-regulating social behaviour in a democratic society, but also because, inevitably, legal regulation always maintains a paradox, apparently insoluble: “the generality of the law” and its “accuracy”. Case law of the European court and the Romanian constitutional litigation court on the availability and predictability of the law is already sufficiently relevant to justify at least a synthetic outline in this area. This is what we attempt to do hereinafter. -
In the study hereby the author approaches a controversial topic among experts, namely whether granting loans / lending between companies (other than credit institutions – banks, etc.) is legally permissible or not. Analyzing both affirmative and negative statements, the author finally argues that the granting of loans / credits between companies (other than credit institutions) is legally possible, provided such activity occurs transiently.
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In this study the author develops and substantiates the thesis according to which under reign of King Carol I (1866-1914), despite the clear purports of the Romanian Constitution of 1866 (inspired by the Belgian Constitution of 1831), in reality, illa tempore, there was no real democracy in Romania, a real representative government, but political and constitutional life was dominated, de facto, by moderate monarchical authoritarianism of King Carol I, King who was concerned to impose a personal direction in domestic and foreign policy of the country, with the view to render functional mechanisms of the young Romanian state, and that even at the expense of sacrificing real democracy and the parliamentary regime, proclaimed by the Romanian Constitution of 1866.
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The study presented hereafter stands for a supplementation to the doctrine’s existing analysis in relation to the legal provisions regarding the publishing agreement comprised in the Law no. 8/1996 on intellectual property and its correlative rights. Summarizing the article’s content, the author has performed a thorough analysis of the Romanian, and European case law with a special interest for the French jurisprudence. As a starting point for the study, the author considered the high frequency use of the publishing agreement aimed at capitalizing the patrimonial rights related to intellectual property. The author has identified, and examined several relevant aspects related to the publishing agreement’s field of application, marking the limits in relation to other civil agreements, substantiating comprehensively the legal characteristics of this type of agreement by analyzing its scope, its content, its effects, its means of cessation from the point of view of the new civil code (Law no. 287/2009). -
In this study, the authors emphasize some aspects of administrative practice on marriage before attaining the legal minimum marriage age provided by law. These comments relate in particular: lack of consistency in preparing related applications relating to request age waiver; superficiality shown on preparing, presentation, or acceptance of reasons for the foundation of this marriage; the proceeding and the method when this marriage is accepted by the parents, tutor or other person or authority/ institution empowered to exercise parental rights. These critical remarks are correlated and reasoned with the legal provisions, offering their views on the administrative practice.
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The failure to fulfill the periodical financial or fiscal obligation consisting in source withdrawal taxes or contributions was qualified in time by certain authors, as a continued crime, and by others, as a successive continuous crime. Choosing the last version, the author of this study identified several criteria for making a distinction between the two forms of crime.
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The authors look at the equipollence principle – related to the moment when the period for the enforcement of a mechanism of redress starts to run – mostly in terms of the case law. Starting from the publication, a short time ago, of the decision issued in a case by the Criminal Section of the High Court of Cassation and Justice, note is taken of the fact that the case law of the supreme judicial authority in criminal matters has varied in this respect in time, starting by the acceptance and enforcement of this principle, followed by the denial of its applicability, and then by its re-enforcement. As regards the same principle, the judicial practice of the High Court of Cassation and Justice in the civil trial-related matter is unitary and constant, meaning that the equipollence theory strictly applies to the cases expressly regulated by law, and no cases when equipollence is also applied for other assumptions as well are identified. The conclusion is that the inconsistencies between the criminal and civil trial-related matters in terms of legislative, doctrine-related and case law approach of this principle, underlined throughout the analysis, should be eliminated both by legislative amendments and by judicial practice unification mechanisms.
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The excessive activity of the criminal trial-related law in the case of transient situations can ensure the predictable nature of law and the elimination of the cases when the parties are harmed by the limitation of the mechanisms of redress. The reporting of the implementation of the criminal trial-related law regarding hearings and mechanisms of redress upon the court’s notification provides to the parties sufficient prediction as regards the knowledge of such hearings and mechanisms of redress since the initial moment of the judgment phase. The author appreciates that such an approach in the law implementing the new Criminal Procedure Code would ensure an efficient transition from the old criminal trial-related law to the new criminal trial-related law.
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In this study, the author examines the two special banking procedures (the special supervision and the special administration), which can be ordered by the National Bank of Romania with respect to the Romanian credit institutions, based on the Romanian legislation in the field (Art. 237 – Art. 24022 of the Government Emergency Ordinance no. 99/2006 on the credit institutions and the capital adequacy, successively modified and amended through four laws and three emergency ordinances between 2007–2011). -
The execution of the warrant represents an essential element in the activity of the police bodies, which must make all efforts so as to arrest the convict. Throughout the article, the author describes the main controversies in the legal practice in relation to this area of activity, also making a critical examination of the legal provisions included in the current Penal Procedure Code, as well as in the new Penal Procedure Code.
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The issue of territorial planning and urbanism became especially important after the entry of Romanian in the European Union, due to the complexity and multitude of problems imposed by the dynamics and evolution of society. The ambience of constitutional provisions, conventional and community rules, the issue of the administrative court institution regarding urbanism and territorial planning and, notably regarding cancellation of building permits, acquires great importance and is intended to guarantee the fundamental rights and freedom of citizens in this complex field, less explored in literature. Based on these challenges, this study analyzes several issues that rise interest in attacking building permits in administrative court. -
The new Criminal Code, which brings numerous innovations to the scope of accusation under the Romanian criminal law, stipulates, in the text of art. 239, the sanctioning of a debtor’s action of alienating, hiding, deteriorating or destroying, in whole or in part, values or goods in its assets or of invoking false acts or debts for the purpose of defrauding creditors or the action of a person who, knowing that it will not be able to pay, purchases goods or services thus causing damage to the creditor. -
The above study examines the issue of the articles of association and the nullity of the legal entity in the new Romanian Civil Code (adopted by the Parliament, published in the “Official Journal of Romania”, but not yet effective). In dealing with the above-mentioned issue, the author examines the nullity of a company’s articles of association (in Law no. 31/1990 on companies and in the new Civil Code), the effects of a company’s nullity, the legal entity’s nullity – in the current law and in the new Civil Code –, the effects of the legal entity’s nullity, as well as the European source of the legal entity regulation in the new Civil Code (Directive 2009/101/EC, a directive abrogating and replacing the Directive 68/151/EEC).
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Examining the issue of the parents’ right to agree to their child’s journey in the country (in Romania) or abroad, after reviewing the legal regulations in this matter, the author reaches the conclusion that art. 18, paragraph 2 of Law no. 272/2004 (“Any journey made by children in the country and abroad shall be made subject to notification and consent of both parents; any disagreements between the parents in relation to expressing such consent shall be solved by the court of law”) provides for situations in which the parents exercise their parental rights together, while art. 30, paragraph 1, letter c of Law no. 248/2005 refers to the situation in which parental protection is divided pursuant to a court order (following divorce etc.). At the end, the author proves that the provisions of the new Romanian Civil Code (adopted y the Parliament and published in the Official Journal of Romania, but not yet effective) do not influence the above-mentioned legal regulations.
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In the above study, the author criticizes severely a judgment of the Romanian High Court of Cassation and Justice (the Administrative and Tax Litigations Section), passed on 26 October 2009, explicitly and unequivocally stating that the mentioned court was entitled not to enforce a provision contained in a law in force (namely, art. III of Law no. 262/2009), explaining that the given provision was unconstitutional since it “infringes the right to a fair trial”, although the Constitutional Court of Romania, quite the opposite, had stated the contrary, finding the constitutionality of that legal provision. The author’s criticism focuses on the idea that, according to the Constitution of Romania, only the Constitutional Court is legally competent to give a ruling on the constitutionality/non-constitutionality of a law or a Government ordinance in force (or of any provision included therein), and that the courts (including the High Court of Cassation and Justice) have no such legal jurisdiction in the matter.
