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One of the major problems with direct implications in the effective implementation of judicial cooperation in criminal matters within the European Union is related to the need for coherent legal norms regarding the establishment of the territorial jurisdiction in the event of positive or negative conflicts of jurisdiction between the competent legal bodies of two or more Member States. In the study, the author examined the provisions of the European regulatory document framework which set out a series of legal norms on preventing and settling conflicts of jurisdiction between the Member States, making some critical remarks designed to help the improvement of the legal system. This paper is aimed at all those interested in this field and can be useful to academics and to practitioners as well. The innovations consist of the general examination of the European regulatory document provisions, of the Romanian special law, with some critical comments, and of proposals for rewording legal rules, aiming at improving the complex system of judicial cooperation in criminal matters between the Member States. -
The article analyzes the changes brought in the matter of approval of the application for enforcement. In the Civil Procedure Code of 1865, the enforcement court had jurisdiction over the approval of the application for enforcement. By the Law No 459/2006, this jurisdiction has been changed and the power to approve the application for enforcement has been recognized to the court executor. By the Decision of the Constitutional Court No 458/2009, this change was declared unconstitutional and it was restored the approval of the application for enforcement by the enforcement court. By the Law No 134/2010, that is the new Civil Procedure Code, it has been preserved the approval of the enforcement by the enforcement court, however, by the Law No 138/2014, it was restored the form declared unconstitutional. Therefore, we have considered as being predictable the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code, by the Decision of the Constitutional Court No 895/2015. Following the Decision of the Constitutional Court No 895/2015, it has been adopted the Government Emergency Ordinance No 1/2016, which reinstated to the jurisdiction of the enforcement court the approval of the enforcement applications. In our opinion, the legal and correct solution is the approval of the enforcement by the enforcement court. -
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Presumptions have been playing an important role in the civil trial, their necessity and utility being recognized both in the doctrine and in the judicial practice. Recently, in order to remove any doubt about the quality of means of evidence of the presumptions, the legislator of the Civil Procedure Code enumerates them among the means of evidence and, at the same time, establishes their legal regime, and the legislator of the Civil Code has extended the scope of the legal presumptions. The reason behind these regulations is based precisely on the necessity to find out the truth also in the cases in which the judge does not have available direct evidence. Certainly, as we have stated on another occasion, the presumptions are indirect means of evidence, as the conclusions drawn imply eo ipso the prior proof of a fact that is neighbouring and related to the unknown fact. As we shall further show, the Romanian legislator has understood to classify the presumptions into legal (established by law) and judicial or simple (left to the enlightments and wisdom of the judge), with the mention that, in this study, we shall refer in particular to the legal presumptions. -
In this paper the author has proceeded to a brief examination of the European normative act adopted in March 2016, which regulates the presumption of innocence and the right to be present at the trial within the criminal procedures, both rights being circumscribed to the right to a fair trial provided in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The study also makes a comparative examination which has in view how these rights of the suspect or of the accused are protected in the Romanian law, also expressing some critical opinions as concerns the European normative act. The elements of novelty consist in the examination made, as well as in the comparative analysis and the critical opinions expressed. -
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According to the decision of the supreme court, further to the judge admitting the complaint against the resolution not to initiate criminal investigations and sending the case to the prosecutor, the latter cannot be obliged to initiate the criminal investigation; in his turn, the judge cannot hold the case for settlement, the consequences being very serious in what regards free access to justice. -
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It has become recently effective Law no. 40/2011 amending and supplementing Law no. 53/2003 (the current Romanian Labour Code), wideranging regulation bringing the Labor Code of 2003 more than 100 amendments, supplements and repeals forward. Within the two studies’ pack - published independently, though under the same title - the two authors review but 16 of these amendments/supplements/ repeals which require, necessarily, a legal review in order to clarify the meaning and effect of the incidence of some purports, so as to avoid controversy and debate in case law and doctrine, likely to cause difficulties and confusion in the practical implementation of relevant purports. Finally, the authors advance a more general conclusion in terms of Law no. 40/2011. -
The tax administrative disputes, as a branch of the administrative disputes, a fundamental institution of the state of law, meant to protect and guarantee the fundamental rights and freedoms of citizens, becomes particularly important after the accession of Romania to the European Union. In this context, by the adoption of the new Fiscal Procedure Code, harmonized with the European acts in the matter, the fiscal processual rules which regulate the matter of the tax administrative disputes enjoy a greater clarity, quality and predictability. Starting from these desiderata, this study aims at analyzing the main amendments and supplements brought by the new Fiscal Procedure Code, in the matter of the tax administrative disputes, in relation to the provisions of the Fiscal Procedure Code in force. -
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The purpose of this article is to approach the common features of medicine and law – the principles which have to govern the medical behaviour and medical liability. Medical principles were often ignored by legal literature (which is so hard to find), but there are a few notes in medical ethics. Medical principles rule the manner in which the provider of medical services, devices, pharmaceuticals, the doctor and the National Health Insurance House are acting in regard to the patient. Meanwhile, ignoring this principles will lead to engaging the liability of doctors, providers of medical services, the devices and pharmaceuticals or, even worse, may result in the agreement’s invalidity. These principles constitute the foundation of a new era, under construction – medical law and they need to become the primary rule for those who are involved in both medicine and law. Our research revealed that medical law is at its beginnings. The purpose of this study is to offer an in-depth analysis and understanding of medical law, by studying its bases (medical principles). -
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The time elapsed since the entry into force of the new codes, although short, brought to the current legal exercise of the practitioners problems of great complexity, if only through the novelty of the institutional innovations or through the difficulties of interpretation and of uniform application. Perceiving the evolutions of the regulations, but also their drawbacks, demonstrated by the very attempts of legislative reconfiguration or by the sanctions of the constitutional judge, this study focused on the extent of their reception and their enrichment with the spirit of the fundamental principles of law, an objective expressly assumed by the legislator. From the vastness of the regulations, the author has chosen a few, which it deemed significant for the applications on the merits of the criminal trial: the more favourable criminal law, the prescription, the criminal prosecution, the plea bargaining agreement, the preliminary chamber. He also considered that some decisions of the Constitutional Court require a sequential analysis if only for the desire to open a field of discussion about a beneficial uniformity and an equal application of a genuine set of rules thus attached to the codes. -
The former regulation – the Law No 85/2006 – did not define the principles underlying the application of the insolvency procedures, these being identified, explained and developed by the legal doctrine. The 13 principles provided by the Law No 85/2014 are applicable both to the procedures for preventing insolvency and to the insolvency procedures. The principles are applied by the bodies involved in the procedure, in the absence of some express provisions, which regulate some specific situation, or are used for the interpretation of an unclear text. Defining the principles is extremely important, the practice following to prove their usefulness, where the regulation is lacking or is unclear. This study aims to analyze comparatively the principles stated by the legal doctrine in the ambiance of the provisions of the Law No 85/2006, as well as the principles provided by Article 4 of Law No 85/2014, with special regard to the principle of maximizing the degree of realisation of assets and of recovery of claims. -
This article makes a brief presentation of the new basic principles of Romanian criminal proceedings, which represent general rules contained in the legislation of the Member States of the European Union, considered to be the basis of modern criminal proceedings. The validity and efficiency of these rules have been tested by the judicial practice in France, Italy, Belgium and others and by the case-law of the European Court of Human Rights. -
Law No 85/2006 on the procedure of insolvency was initially repealed and replaced by the Government Emergency Ordinance No 91/2013 on the procedures for preventing insolvency and of insolvency, which was in force only a few days, being declared unconstitutional, in its entirety, by the Constitutional Court of Romania. For this reason, it was necessary to adopt a new law on this matter (No 85/2014) which entered into force at the end of June 2014. In this study, the authors examine more extensively the principles of the procedure of insolvency, as well as the rights and the obligations of the participants, as currently regulated by Law No 85/2014, in comparison, when appropriate, with the previous law (Law No 85/2006). -
In this study, the author aims to highlight a number of manifestations of the principle of availability in civil proceedings that have been sanctioned for the abuse of procedural law. From the analysis of the judicial practice, we identify a multitude of situations in which the person’s right to file a lawsuit is exercised for purposes other than the one for which he was recognized by law, which was sanctioned by the application of a judicial fine. The right to sue and the right to appeal must be exercised in good faith, in accordance with the purpose enacted by the legal provisions, and not to pursue the production of a detrimental result to the adverse party. -
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.
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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. -
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. -
As subject of public international law, the European Union is committed not only to observe, but also to develop the public international law and, within this framework, it is established the principle of equality between the Member States, within the limits of the treaties of the Union. The institutional structure of this intergovernmental international organization and the procedure of adoption of the legal acts reflect a nuanced equality between the Member States, which however emphasizes the specificity of the Union. „United in diversity”, a motto to which, according to the Declaration No 52 to the Treaty of Lisbon, not all Member States have subscribed, the European Union promotes an enhanced integration and a political cooperation in which the States act in accordance with the Treaties and, in certain cases, for the purpose of supporting the national interest. The transfer of competences from the States to the Union was achieved gradually, with the economic and political evolution at national and international level, pursuant to the state sovereignty. Equality between states within the European Union is a principle whose application in the current European and international context might reflect a new approach of the European integration and positioning of the Member States within the Union. -
The promotion and protection of the rights of the child has always been one of the main objectives of the European Union, but it is also a result of international commitments. All Member States of the European Union have ratified the UN Convention on the Rights of the Child, and the rules and principles of this Convention guide the policies and the actions of the Union that impact on the rights of the child. The Lisbon Treaty has conferred greater importance to the objectives of the European Union, and by Article 3 (3) of the UN Convention on the Rights of the Child it was explicitly established the imperative obligation to promote the protection of the rights of the child. In addition, the rights of the children are enshrined in the Charter of Fundamental Rights of the European Union, which by Article 24 recognizes children as independent and autonomous holders of rights, also considering the best interest of the child as paramount in relations with the public authorities and the private institutions. The transposition of the European and international objectives, as well as of the fundamental principles referring to the protection of the rights of the child took place naturally through the adoption of new national regulations reflecting the acquiescence of Romania to the European objectives and its constant concern for the protection of the rights of the child. However, in many cases there are encountered in practice situations where, although there are both the legal basis and the mechanisms necessary for its implementation, the rights of the children are not respected and/or are not given due importance. This paper aims to draw attention once again to the essential rights of children and to emphasize the fundamental principles referring to the promotion and protection of rights of the children, with particular regard to the principle of the best interest of the child, as regulated at European level.
