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In this study, the author analyzes the possibility of granting the public judicial aid, according to the national legislation and the case law of the European Court of Human Rights, regarding the bail necessary to be paid in the cases regarding the provisional suspension of enforcement, according to Article 719 (7) of the Civil Procedure Code. Regarding the situation prior to pronouncing the decision in the Case S.C. ECO INVEST S.R.L. and Ilie Bolmadar versus Romania, special attention is paid to the way of transposing the Directive of the Council of the European Union 2003/8/EC to improve the access to justice in cross-border disputes by establishing some minimum common rules relating to the legal aid for such disputes, as well as the jurisprudential reversal of the Case Micallef versus Malta. At the same time, there are emphasized the relevant provisions of the Government Emergency Ordinance No 51/2008 on judicial public aid in civil matters. -
The present study aims to present a series of case law decisions in which the role and the activity of the central bank has proved to be insufficiently considered in depth by the Romanian courts. The application thereby, as regards the National Bank of Romania, of some legal provisions addressed to commercial banks, confusing the administrative review on the acts of the central bank with the administrative jurisdiction, overlapping restraints of the constitutional frameworks in which the National Bank has activated throughout its history, inconsistencies with the vision accepted at European level regarding the attributions and independence of the central banks are widely treated in an attempt to clarify the specific position that the central bank holds in the Romanian institutional landscape. There were presented some solutions from the judicial practice that highlight the need for doctrinal clarifications regarding the nature of the activity of the central bank, including from the European perspective. The importance of knowing them is determined by the significant effects that the correct or incorrect application of the norms and principles regarding the central bank can produce not only at the level of the administrative law, but also at criminal or economic level.
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The study analyzes how the investigation of the trial and debate of the fund has been regulated, from the publication of the new Civil Procedure Code to the adoption of the Law No 310/2018 amending and supplementing the Law No 134/2010 on the Civil Procedure Code. Initially, the investigation of the trial before the first instance was expected to be carried out as a rule, in the council chamber and, by exception, in public session. The debate of the fund could take place both in public session and in the council chamber. The entry into force of the provisions regarding the investigation of the trial and the debate of the fund in the council chamber has been postponed several times, never entering into force, so that by the Law No 310/2018 these provisions be abandoned. In this way, the intermediate situation by which the investigation of the trial and the debate of the fund were held in public session became permanent. In our opinion, it is criticizable to abandon the holding of the civil trial in the council chamber, given the predominantly private character of the rights and interests of the parties involved and the guarantee of the right to privacy.
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The statistics at national level of the disputes of administrative contentious indicate a substantial share thereof in relation to the other matters handled by the courts and reveals an increasingly „blunt” relationship of the Romanian State with its citizen. The alternative means of solving the disputes generated by the activity of the public administration, present in the Romanian legislation, prove to be insufficient to reach the purpose for which they were instituted, and the recent changes brought to the material competence of the administrative contentious courts have generated to a small extent the results pursued by the legislator. The global phenomenon that marks the public law, of progressive replacement of the unilateral character of the public action with models based on dialogue and consensus, more suitable to strengthen the democratic legitimacy and the efficiency of the relations between the administration and the citizens, requires the connection of policies in the field of judicial organization, in this case of the specialized component of administrative contentious and the doctrine of administrative law, to the global approach regarding the resolution of conflicts between the administration and the citizens, including by applying the solutions validated by the experience of other national systems.
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One of the most controversial institutions of Romanian criminal procedural law is the institution of exclusion of evidence. We considered it necessary to carry out this comparative law study so that law practitioners as well as any interested person could observe how this institution appeared and how it is applied in other countries and in the case law of the European Court of Human Rights.
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Potrivit art. 181 alin. (1) din Legea nr. 78/2000 pentru prevenirea, descoperirea și sancționarea faptelor de corupție, cu modificările și completările ulterioare, folosirea sau prezentarea cu rea-credință de documente ori declarații false, inexacte sau incomplete, dacă fapta are ca rezultat obținerea pe nedrept de fonduri din bugetul general al Uniunii Europene sau din bugetele administrate de aceasta ori în numele ei, se pedepsește cu închisoare de la 2 la 7 ani și interzicerea unor drepturi.
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Faptul că procurorul nu și-a manifestat opțiunea de a menține dispoziția de trimitere în judecată sau de a solicita restituirea cauzei într-un termen de 5 zile, în condițiile art. 345 alin. (3) C.pr.pen., nu îl decade din dreptul de a formula contestație în condițiile art. 347 alin. (1) C.pr.pen., în lipsa unor dispoziții legale exprese, și solicita începerea judecății în contextul constatării legalității sesizării instanței, a administrării probelor și a efectuării actelor de urmărire penală (cu notă aprobativă).
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100 years after their conclusion, the Paris Peace Treaties of 1919–1920 are both an important event in history and a founding moment of modern international law. Ending World War I, they have legally established the new state-political realities resulting from the application of the principle of nationalities and the exercising of the right to self-determination by the peoples oppressed by the great European empires, which have led to the emergence of new states or to the consolidation of other existing ones. The new European and international order was founded primarily on the law, the organization of peace and the maintenance of the status quo being entrusted, according to the Covenant, to the League of Nations, the first international institution with universal vocation. New principles of international law have been prefigured, the national state has become the main topic of international life, the subregional collective security organizations (Little Entante, Balkan Pact) have played an important role in the international balance. The legal inheritance of the time 1919–1920 was expressed after the World War II through the Charter that laid the foundations of contemporary international law and the U.N.O. (1945). The Treaty of Versailles with Germany (1919), as well as that of Trianon with Hungary (4 June 1920) are the treaties whose territorial clauses have historically withstood being taken over by the Peace Treaties of 1947 and enshrined by subsequent relevant international acts. The Treaty of Trianon, by its territorial effects, has become the subject of a sustained and permanent action of revisionism by Hungary and anti-revisionism, as a reaction from the other states whose borders have been established thereby.
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The Treaty of Trianon between the Allied and Associated Powers and Hungary was signed on 4 June 1920 and dramatically changed the political map of Central Europe. Although the system of treaties concluded at the Paris Peace Conference did not prove viable, the political-territorial order created at Trianon – an expression of peoples’ right to self-determination – has survived. The present text aims to examine the circumstances of the conclusion of the Treaty of Trianon, its content and its long-term effects on the central European political order. Finally, the author makes a general evaluation of the Romanian-Hungarian relations in the light of their relation to the provisions of this Treaty.
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On 4 June 2020, Romania marks the Centenary from the signing of the Peace Treaty of Trianon. An essential page of the history of the Romanian nation, which took the form of a peace treaty concluded by the Allied and Associated Powers, including Romania, with Hungary, as the successor state of the Austro-Hungarian Empire, a state defeated in the World War I. By the content of this peace treaty, the Great Powers recognized the Union of Transylvania (and of the Eastern part of Banat) with Romania, respectively the sovereign will of the Transylvanian Romanians expressed by means of plebiscite on 1 December 1918 and, respectively, the Resolution of the National Assembly from Alba Iulia. The Treaty of Trianon has enshrined the realization of the right to self-determination of the nations of the Austro-Hungarian dualist monarchy. For Romania, the mentioned Peace Treaty meant not only the international legal recognition of the Union of Transylvania with the Motherland, but also the confirmation of the political and civil rights of the Romanians who constituted the majority population in this territory.
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The study addresses good faith as a uniform, but flexible, multi-faceted concept within contractual relationships. After analyzing the ambivalent character of the concept of good faith, in antithesis to the abuse of law in the form of bad faith and contractual wrongdoing, the study leans on the functions of good faith, which materialize the principle at its institutional and formal dimensions, namely the interpretative function of contracts, the completive, moderating or limitative, and adaptive function. In approaching the contractual illicit and the bad faith, as a basis of contractual liability, the study shows that good faith is a standard in quantifying them, and the legal language of good faith is a supreme norm of the contractual law, in a means of contractual jurisdiction, meant to limit the principle of contractual freedom.
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Formalism in Roman law prevails in all its branches, starting with the court procedure and ending in the interpersonal relations. Its role was to ensure the validity of consent and the procurement of evidence. The legal act in the Roman law was practically non-existent. The Roman legal documents received the proper form after the practice, according to the existing customs. It was the custom that dictated the form which any instrument meant to produce concrete legal effects, but also future legal effects, had to have. The legal report was formed through gestures and religious formalities, which gave rise to principles that ensured the optimal functioning of the legal system related to the context of that age. The updating of the formalism was required when there was an obstacle in achieving the goals of public and private order. The need to change the private law emphasized by the subjects of a legal relation and imposed by the economic evolution of trade has transformed a formalism that had its origin in religion, into a formalism dictated by current practices. In the current law, the civil legal act is born by the express manifestation of the will of the subjects of law, a will that must take a certain form. The observance of the form is ensured by the procedural formalism imposed by the legal norms in force. The present study analyzes the formalism of the Roman law and its imprint in the formation of the legal act from the positive law
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The author notes that the right to retirement implies two prerogatives of a different nature: belonging to a professional status, part of the individual’s personality (professional or social) and the power to request and receive a monthly money allowance, a patrimonial component. In relation to the theoretical premise stated, it was set the moment of the birth and efficiency of the law, as well as the legal regime of the magistrates’ service pension; we are dealing with a right affected by a double modality: a suspensive condition consisting of three cumulative elements (age, seniority in the judiciary and deontological conduct) and a suspensive term. The applied model, deduced from the concept of civil obligation, then indicates the limits in which the new law may affect the magistrates’ pension, as a result of governmental contribution or gratuity; the theoretical approach offered solutions to indicate the limits within which magistrates’ pension rights can be limited, abolished or taxed.
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In this study, by an inductive method, we will try to address the problem, the solution and the arguments that could be found in certain situations where there is a disagreement between the category of use of a land classified as forest and its actual legal situation, disagreement which unreasonably generates limitations of the right to build on the land in question. In case a land has mentioned in the title of property the category of use „Forest” (Pd), but this land does not actually meet the legal conditions provided by Articles 1, 2, 19 (1) and Article 20 (2) of the Law No 46/2008 on the Forest Code in order to be considered forest, in order to be part of the national forest fund and in order to be mandatorily subject to the regime of a forest arrangement, then this land must be considered only a land with forest vegetation outside the national forest fund or a simple land not subject in any way to the provisions of the Law No 46/2008 on the Forest Code, for which it is possible to request the change of the category of use according to Article 24 (1) and (2) of the Law No 46/2008 on the Forest Code.
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In this article, we analyze the stages of adoption and repeal of the Law No 169/2017, in relation to the dynamics of the level of employment of the penitentiaries and the ECHR jurisprudence. We identify the main undesirable effects of the application of the compensatory appeal, determined by the abrupt redefinition of the paradigm for the execution of the sentence of deprivation of liberty, with implications including on the (re)integration of the post-detention.
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The topic covered in this study is related to one of the few polemics that took place in the pages of the Romanian Law Magazine in the ’80s. In Issue 1/1987 of the magazine, Octavian Cojocaru criticized in the study „Judicial rehabilitation. Application made by the spouse or close relatives, after the death of the convicted person, before the execution of the sentence” a correct sentence of the Suceava County Tribunal, pronounced in 1985, in disagreement with the provisions of the Criminal Code in force at that time and against a decision of the Supreme Tribunal, according to which the convicted person who had died before the execution of the sentence could no longer be rehabilitated. Later, in 1988, Valeriu Ciucă, a judge at the same Suceava County Tribunal, published in the same magazine a critical article related to the case law note signed by Octavian Cojocaru, which shows, with solid arguments, that the decision pronounced by Suceava County Tribunal was correct from a juridical point of view.
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Cauza Roman Zakharov contra Rusiei, Cererea n° 47143/06, Hotărârea Marii Camere din 4 decembrie 20151
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Conflictul negativ de competență este reglementat de art. 133 pct. 2 din Codul de procedură civilă, ce stabilește că există conflict de competență când două sau mai multe instanțe și-au declinat reciproc competența de a judeca același proces sau, în cazul declinărilor succesive, dacă ultima instanță învestită își declină la rândul său competența în favoarea uneia dintre instanțele care anterior s-au declarat necompetente.
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Având în vedere că reclamanții au solicitat desființarea unor acte de reconstituire a dreptului de proprietate privată pe calea acțiunii prevăzute de art. III din Legea nr. 169/1997, Curtea a constatat că, în lipsa unor norme de stabilire a instanței competente în cuprinsul acestei legi speciale, se va aplica Codul de procedură civilă. Dat fiind obiectul cererii (constatarea nulității absolute parțiale a unui titlu de proprietate emis în temeiul Legii fondului funciar nr. 18/1991), Curtea a constatat că, sub aspectul determinării instanței competente, se aplică criteriul valoric, astfel că prezentul conflict urmează a fi soluționat în raport de pragul legal de 200.000 lei, prevăzut la art. 94 pct. 1 lit. k) C.pr.civ. Determinarea instanței competente material în cazul cererilor imobiliare se face doar prin raportare la dispozițiile art. 104 C.pr.civ., nu și la prevederile art. 31 alin. (2) din Ordonanța de urgență a Guvernului nr. 80/2013, întrucât acestea din urmă nu instituie reguli speciale de competență, ci cuprind norme de stabilire a cuantumului taxei judiciare de timbru.
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Potrivit art. 404 alin. (4) C.pr.pen., dispozitivul trebuie să mai cuprindă, după caz, cele hotărâte de instanță cu privire la: ... g) restabilirea situației anterioare; i) rezolvarea oricărei alte probleme privind justa soluționare a cauzei. Conform art. 25 alin. (3) C.pr.pen., instanța, chiar dacă nu există constituire de parte civilă, se pronunță cu privire la desființarea totală sau parțială a unui înscris sau la restabilirea situației anterioare săvârșirii infracțiunii (cu notă parțial aprobativă).
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Protecția drepturilor omului1 , în esența sa, a fost la început o afacere internă a statelor și era asigurată într-un cadru național. Treptat, ea și-a făcut loc și în dreptul internațional, care a început să se intereseze de drepturile persoanelor în prima jumătate a veacului trecut, urmare a unor evenimente, cum ar fi revoluția rusă, genocidul asupra poporului armean, ascensiunea la putere a partidului nazist în Germania, ce au determinat mișcări forțate de populație. Era în firescul lucrurilor ca primele instrumente internaționale de protecție a persoanelor să se refere cu precădere la drepturile refugiaților și la drepturile minorităților. În legătură cu drepturile refugiaților, cu titlu de exemplu, relevăm: Aranjamentul privind eliberarea de certificate de identitate refugiaților ruși și armeni din 12 mai 1926; Aranjamentul relativ la statutul juridic al refugiaților ruși și armeni din 30 iunie 1928; Convenția asupra statutului internațional al refugiaților din 28 octombrie 1933; Convenția privind statutul refugiaților provenind din Germania. Cu referire la drepturile minorităților, amintim: tratatele speciale – (de)numite despre minorități – care au fost încheiate în urma Primului Război Mondial cu Polonia, Cehoslovacia, Statul Sârbo-Croato-Sloven, România și Grecia. Pe de altă parte, dispoziții în favoarea minorităților au fost inserate și în tratatele de pace încheiate cu Austria, Bulgaria, Ungaria și Turcia.
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The sale-purchase contract is undoubtedly, in the 21st century and in the landscape of the Romanian law, the most frequent contract used in practice, having an essential and decisive role in the organization and development of social and economic life. The complexity, variations and particularities of this contract, starting from its conclusion and until the exhaustion of all its effects, contribute to shaping the overwhelming importance of the sale, of the „standard contract” which is the most used legal instrument for transferring goods. In this context, the effectiveness, usefulness and practical applicability of a sale-purchase contract depend essentially on its structural, „anatomical” elements, namely the essential, intrinsic and extrinsic conditions of validity which directly determine the effects of the sale. Depending on these structural elements there are researched and assessed the validity of any contract, in whose absence its legal effects cannot operate, and, if they operate, they will be abolished with all the consequences which they entail. Thus, the valid formation of the sale contract implies more than a simple analysis of the mechanism of realization of the will agreement; it necessarily involves a detailed examination of the structural elements of the contract which are referred in the law as being „the essential conditions for the validity of the contract”. Any dispute which may arise, having as object a sale-purchase contract, will be based primarily on the analysis of the legal fulfilment of the very conditions of validity of this contract, which will unequivocally determine the subsistence of the contract, as well as the extent and applicability of its effects
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The study aims to analyze good and bad faith, which are in a relationship of complementarity, but each with its own individuality, in the phases of negotiation, conclusion and performance of the contract. In the analysis of the forms of manifestation of bad faith in the pre-contractual stage made in the light of the regulation of the Civil Code, there is a tendency to mark the delimitation between contractual freedom, the right to interrupt negotiations, in case of their failure, and bad faith in interrupting negotiations. The study also addresses the complex issues related to the obligation of the parties to information, self-information, dolus through reluctance, to violence, arising from the economic inequality of the parties and harmful conduct and the repercussions, in terms of free and conscious consent, with the corresponding legal sanctions. The problem of repairing the damage caused by the interruption in bad faith or without justification of the negotiations is analyzed in its material and moral dimension, but also in terms of the damage caused by the loss of a chance.
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Formalism is often a topic of discussion approached by reference to the form of the juridical act, more precisely to the consent externalized and recorded in a solemn act. This act is frequently outlined in the form of a notarial act, composed of two parts: the externalization of the manifestation of will of the parties and the findings of the notary public (recorded in the conclusion of authentication). The formalities presuppose any legal procedure which gives rise to a certain form and that adds safety, effectiveness and opposability to the manifestation of will. The notarial succession procedure is characterized by three procedural stages and ends with a conclusion of the notary public: the first part of this decision records the persons participating in the succession debate and the statements of those present, and the second part contains the findings of the notary public with regard to the statements of heirs in the first part of the conclusion. This conclusion issued within the succession procedure has the probative force of an authentic document, on the basis of which the certificate of heir is issued. In this study we intend to make a brief presentation of the procedural formalism, of the formalities prior to and subsequent to the conclusion of the civil juridical act. The notarial deed is the result of a concurrence between the manifestation of will of the party (or parties) and the obligations of the notary public which have a single result: the elaboration of a juridical act in accordance with the legal norms and good morals. The analysis is relevant to allow a comparative look between the formalities necessary for the elaboration of a notarial act and the formalities of the notarial succession procedure, which is completed by the certificate of heir, an act of a special legal nature.
