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The New Fiscal Procedure Code introduces a novelty, the penalty for non-declaring. This penalty is a specific sanction that amerces a certain behaviour of a taxpayer consisting in non-declaring or wrongfully declaring main tax obligations. The penalty has a significant practical impact in case of both administrative irregularity and criminal irregularity. The nature of this penalty, the legal conditions of occurrence and the procedure of infliction cause some interrogations including an eventual exam of constitutionality. -
The article analyzes the material jurisdiction to settle the action for liability of the mayor for the prejudice caused to the state budget in the exercise of his mandate by the deficient fulfilment of the duties devolving on him, a prejudice established by the Court of Auditors by its act of control. In the absence of a derogatory regulation concerning jurisdiction, such an action, being governed by the rules and principles of the tort civil liability regulated by Article 1349 of the Civil Code, falls under the material jurisdiction of the court or of the tribunal, depending on the value of the object of the dispute (of the quantum of the damage requested to be repaired), according to Article 95 point 1 in relation to Article 94 point 1 k) of the Civil Procedure Code. -
The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor.
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This article explores the concept of usucapion as envisioned by the new Civil Code of Romania. In the current regulation, the usucapion retains its status as both an originary mode of acquiring property and other real rights and a particularly important effect of possession. Unlike the former regulation, usucapion is now applicable not only in real estate matters, but also to moveable goods. With this new regulation, the lawmaker also had in mind the land registry system, as established by Law No 7/1996. In this regard, the provisions applicable to Transylvania, Banat and Bucovina in respect to the distinction between the two forms of real estate usucapion, namely tabular and extra-tabular, are extended for the entire country, with some changes. Therefore, our study sets forth a novel perspective on this subject and at the same time aims to present its findings in a concise, albeit exhaustive manner.
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The article presents the evidentiary standards in case of the extended confiscation, claiming the necessity to establish the difference between the legal income and the value of assets acquired, also taking into account the expenses made by the accused and their family members, mentioning the assets or sums of money subject to extended confiscation, based on an evaluation report drawn up by an expert, by the indictment. -
In this article, the author discusses the issue of limitation of the exercise of certain rights and freedoms, as debated and regulated by the Constituent Assembly in 1991. There are analyzed in detail the theses for the draft Constitution that set out the constitutional conditions for which compliance is imperative, so that the Romanian State and the Romanian Parliament be able to make the decision of limiting some rights or freedoms of the citizens. The author gives a significant consideration to presenting the philosophy of the constitutional norm that recognizes the State’s right to limit under certain circumstances the exercise of some fundamental rights and freedoms of the Romanian citizens. It is noted that constitutional limitation of the some rights or freedoms of the citizens fully complies with the European doctrine of constitutional law and of the judicial practice of ECHR. The author analyzes in detail every case which may determine the Parliament to limit the exercise of some rights and freedoms, as well as the conditions for imposing the limitation.
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In this article, the author analyzes the parliamentary procedure for the review of laws, pursuant to the request of the President of Romania, in the light of the case law of the Constitutional Court. In its judicial practice, the court of constitutional administrative disputes found that the provisions included in the parliamentary regulations of both legislative Chambers, which regulated the procedure of review of the laws on the initiative of the President of Romania, do not comply with the constitutional provisions. The author analyzes in detail the objections of unconstitutionality of the Constitutional Court and shows, in the end, that the elaboration of a clear, unambiguous parliamentary procedure is necessary in order to review the laws following the request addressed by the President of Romania, which reflects the letter and the spirit of the constitutional provisions.
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This study proposes a comparative analysis of the main economic and financial offences from their regulatory perspective, given the significant amendments of the Romanian criminal legislation occurred starting with 1 February 2014. The author makes a presentation of how the incrimination of these criminal acts has been amended, regardless of the relevant provisions, the Criminal Code or the special laws. He insists on the situations where amendments of substance occurred and it is analyzed their opportunity, as well as the effects reflected by the judicial practice. Similarly, critical notes are exposed, with the necessary arguments on some of these legislative amendments.
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The new Romanian Civil Code contains references to the goodwill, but it does not regulate the legal regime of the goodwill. In the absence of a legal regulation of the goodwill, the legal nature of the goodwill is analysed on the basis of the new conception of the Civil Code concerning the patrimony of the natural person and of the legal person. According to the Civil Code (Article 31), the unique patrimony of the natural or legal person may be subject to a division in the cases and under the conditions provided by law. Allocation patrimonies are the fiduciary patrimonies and those allocated to practicing an authorized profession. In the light of this conception, the goodwill represents an allocation patrimony, namely a distinct fraction of the patrimony of the natural or legal person, intended for conducting the trading activity. Under the terms of the new Civil Code, which admits that the patrimony of a natural or legal person may be subject to a division or an allocation, it is fully justified to qualify the goodwill as „trading patrimony”, a name repudiated in the past.
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Calea de atac a contestației poate fi exercitată, în condițiile art. 347 C.pr.pen., inclusiv atunci când niciun participant la procesul penal nu a formulat cereri sau ridicat excepții în procedura camerei preliminare. În acest scop, încheierea prin care judecătorul finalizează procedura de cameră preliminară trebuie comunicată participanților, eventuala omisiune putând fi revelată inclusiv în calea de atac a apelului, cu consecința regresării procedurii din faza judecății în faza camerei preliminare (cu notă aprobativă). -
In a traffic accident resulting in numerous injuries there have been drawn up several forensic documents, the time limit for medical care being extended to 100 days because of the emergence of some post-operative complications. After numerous postponements and after the reinstatement of the case on the list of cases twice, the court requested that the acts be approved by the Superior Forensic Commission next to the National Institute of Forensic Medicine, although there were no contradictions between them. This body has decided that there is no causal relation between the accident and the extension of the number of days of medical care, invoking medical negligence and the failure of the injured person to go through the entire recovery treatment. Based on this advisory opinion the court has ordered the acquittal, ignoring the other evidence, without giving reasons. According to the author, the solution of the court is ungrounded and unlawful.
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The absolutisation of the effects of the case law of the Court of Justice of the European Union or of the provisions of the Charter of Fundamental Rights of the European Union in areas not falling within the exclusive jurisdiction of the European Union (EU or the Union) or in areas of shared jurisdiction where EU no longer wishes to legislate on the basis of the principles of subsidiarity or proportionality can lead to mistakes in the application of the national law by the law courts of the Member States of EU. In this article the author identifies such a case in the field of access to the data stored by the suppliers of public electronic communications networks and by the suppliers of publicly available electronic communication services and brings arguments to remedy this situation.
