-
The article proposes a discussion about the institution of the putative deed. Considering the fact that this institution does not know an explicit legal regulation, it gave rise to heated discussions in the specialized legal literature, which had not only a theoretical importance, but also a great practical importance. In the beginning of the presentation it is shown what is the correct name of this institution of criminal law, from the author’s perspective, arguing at the same time the opinion to which he understands to rally. It is shown that the putative deed corresponds to an inverse error either of law or of fact. Given that, in a first hypothesis, the author considers that the deed committed is incriminated by a rule of criminal nature, although in reality such an activity is not incriminated or, in another hypothesis, although the author’s deed is incriminated by the criminal law, the actual manner of committing the deed does not fall within the respective legal text. Similarly, it is also presented perhaps the most heated discussion in the legal literature, namely the one in which the author executes certain acts of execution with the intention of killing a person, not knowing that he had died prior to the moment of beginning the activity. It is shown that, given the legal reality in our country, at this time, the perpetrator has to be held liable for committing a putative deed, not an attempt, whether a punishable or non-punishable attempt is discussed. At the same time, it is stated that the judicial practice has retained the commission of a putative deed, and not of an offence, in the hypothesis that it is required a qualified active subject for committing a certain offence and the person who committed the deed did not act in this capacity. In the author’s opinion, in such a hypothesis, it will not be retained the commission of any offence, but only the commission of a putative deed, only in the situation that the deed committed does not represent another offence. At the end of the article conclusions are drawn, also showing how the legislator could intervene in order to put an end to the discussions arisen in the legal literature and, at the same time, in order to enable possibly the sanctioning of the persons who commit putative deeds which pose a high social danger. -
In the situation that a person has been sanctioned by an administrative authority for committing a contravention, this person can no longer be subsequently prosecuted for the same deed contemplated in its materiality, whereas, in this situation it is applicable the ne bis in idem principle which determines, from the perspective of the criminal procedural law, the incidence of the case provided by Article 16 (1) i) of the Criminal Procedure Code, with reference to the authority of res judicata, which prevents the exercise of the criminal action against that person.
-
This study analyzes the particularities involved by the powers of the Court of Accounts to establish contraventions and to apply offences punishable in the specific activity of control/audit they achieve. Two categories of offences can be identified, namely contraventions that the Court of Accounts only finds, not having the power to apply sanctions against them, and contraventions for which the Court of Accounts is competent not only to identify them but also to apply the sanctions for them. The rules on contraventions that may be applicable to deviations discovered by the Court of Accounts can be found in the Law on the organization and functioning of the Court of Accounts No 94/1992, as well as in other special regulations that are analyzed in this article. The approach is carried out not only from a legislative and doctrinal perspective, but also from a case law perspective, being exemplified in some solutions given by the courts in cases concerning complaints against the contravention reports drawn up by the Court of Accounts. Finally, some conclusions are presented, which also include the authors’ point of view on the perspective approach, including by the legislator, of this issue.
-
One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment.
-
Foarte mulți autori moderni întrebuințează în lucrările lor expresia jus ad rem pentru a desemna dreptul de creanță, opunându-l astfel dreptului real jus in re. Această expresie a avut o influență considerabilă în evoluarea instituțiilor juridice. Scopul nostru este de a examina aici cum au fost aduși autorii să numească dreptul de creanță jus ad rem, precum și cele două mai importante consecințe ale acestui fel de a concepe natura dreptului de creanță: dispariția obligației chirographare și transformarea efectelor vânzărei. -
The attributions that confer substance to the activity of the prosecutor before the jurisdictional body are the participation in the trial of the criminal and civil cases, the exercise of the means of appeal against the judgments, the examination of the cases of non-uniform application of the law and the analysis of the cases in which the courts have delivered final judgments of acquittal, return or referral to the prosecutor. In criminal matters, the prosecutor mandatorily participates in the trial, under the sanction of absolute nullity, in the cases where the law expressly provides for his participation, and optionally, in cases other than those in which the law establishes the obligativity of participation. In civil matters, the rule is that the prosecutor takes part in the trial optionally, when he considers it necessary to defend the rule of law, the rights and interests of citizens. By way of exception, the prosecutor mandatorily participates in the trial of the civil cases when the obligativity is expressly provided. In criminal matters, the law opens for the prosecutor the path to exercise all means of appeal, ordinary (appeal, contestation) or extraordinary (recourse in cassation, contestation for annulment, revision), against various judgments. In civil matters, the prosecutor may exercise the means of appeal when he deems it is necessary to protect the rights and legitimate interests of minors, of the persons placed under interdiction and of the missing persons, or when he has participated in the trial of the case.
-
Typical as they could be for the continental legal system and bearing common landmarks recommended by the Council of Europe and European Union, France, Italy and Spain are the three examples of states best suited to illustrate the European vision on the civil liability of judges and prosecutors for the damages caused by the exercise of their legal powers in deciding upon acts and measures taken in the framework of litigation, including the final decision on the case. The analysis of these examples represents the continuation of a former study published in the same legal journal on the matter, but viewed through the lenses of the US Supreme Court of Justice and laws. Based on the Council of Europe Charter on the Statute for Judges and Recommendation on the judge’s independence, efficiency and responsibilities, guided by the case law of the EU Court of Justice and ECHR, the law and legal practices on civil liability of judges and prosecutors find their expression in slightly different manners in France, Italy and Spain, but all of them respect the paramount principle of the indirect liability which could be enacted only based on the state’s direct liability. There are some national differences but nevertheless they don’t represent deviations from the common European approach. The present study searches for all different and common views of the three states on the subject, emphasizing on the main principles that should guide the continental legal system’s states on that respect. -
The independency or autonomy of public servants in construing and applying the law is warranted by the Constitution or by law. By virtue of the independency or autonomy, public servants construe and apply the law according to the own beliefs, being entitled to reject any interference from authorities or persons. Errors of public servants in the process of construing and applying the law can result in their non-criminal legal liability, if the conditions of such legal liability are fulfilled, as the case may be, civil tort or contract, disciplinary, material, taxation or contravention liability, in no case criminal liability for the offence of abuse of office provided by Article 297 (1) of the Criminal law.
-
In essence, the expropriation procedure goes through two stages, the administrative stage and the judicial stage, the common law in the matter being represented by the Law No 33/1994, as amended and supplemented. The litigation procedure is criticizable however, in many aspects, for the lack of transparency and of access to data, from the perspective of the holder of the restricted real right. Thus, although in the preamble of this normative act it is affirmed the necessity of equalizing the right of private ownership with the public interest, the latter has priority in many of the situations that have arisen in practice.
-
One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued.
-
The issue of the correct determination of the moment when it begins to run the time limit for declaring the contestation for the prosecutor against the interlocutory judgments by which the judge orders the rejection of the proposal of preventive arrest or of house arrest, the revocation of the preventive measure or the replacement of the preventive measure with a slighter measure has a particular importance given that it will also mark the moment when this processual right of the prosecutor will cease, under the terms of Article 268 of the Criminal Procedure Code. As we will show in the arguments offered in our paper, the criminal processual provisions do not provide for a distinction as to the moment when the time limit for declaring the contestation begins to run as the prosecutor or the processual subjects were present or absent when the judgment was pronounced, but provide expressis verbis such a distinction between the prosecutor and the processual subjects in this respect, the only rigorously correct interpretation is the one showing that, always in the matter of preventive measures, the time limit for declaring the contestation begins to run from the pronouncement of the judgment in relation to the prosecutor, whether or not he was present at the time of pronouncement. -
The authors present another opinion on the subject regulated by Article 132 of the Law No 78/2000, arguing that it constitutes a special legal aggravating circumstance for the offences of abuse of office and usurpation of the function provided by Article 297 and Article 300 of the Criminal Code. In the current regulation the abuse of office provided by Article 297 of the Criminal Code by reference to Article 132 of the Law No 78/2000 is not a criminal offence assimilated to corruption offences and, consequently, may not fall within the competence of the NAD unless the damage caused exceeds the ROL equivalent of one million euros. Drawing attention to the fact that the provisions of Article 132 of the Law No 78/2000 are not precise, predictable, they bring arguments in support of the thesis of the susceptibility of unconstitutionality thereof.
