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This study examined in a comparative manner the provisions of the Council Framework Decision 2008/675/JHA of 24 July 2008 compared to the Romanian internal provisions related to taking into consideration the criminal convictions decided in another European Union Member State, in the circumstances in which in another Member State a new criminal lawsuit is being initiated against the same individual, but for different facts. The investigation is important since the above mentioned European normative act is classified in the broad range of measures taken for the purpose of the harmonization of laws in the field of judicial cooperation in the criminal matter within the Member States, and the Romanian laws have not been adjusted yet to the European legislative system. Based upon the investigation carried out by the authoress, it results that both the examined European normative act and the internal laws in the matter have certain lacks and for this reason their amendment and supplement is required. The essential contribution of the study shall consist in the examination of certain judicial rules and the identification of certain situations which have to be regulated either by supplementing the European normative act, or by the adoption of another instrument, the same situation being valid as regards the Romanian laws, as well. -
Puțini sunt termenii din vocabularul științelor politice care să fi primit atât de multe definiții și caracterizări, de-a lungul timpului, cum este democrația. Fragmentul din Declarația Universală a Democrației pe care vi-l propun reflecției surprinde două aspecte ale termenului de democrație: unul instituțional, raportat la constituirea prin proceduri electorale democratice a instituțiilor reprezentative ale unui stat, la nivel național și local, și altul funcțional, raportat la puterea reală a poporului și mijloacele eficiente de care acesta poate dispune pentru a contribui, desigur, prin reprezentare, la activitatea legislativă și de control asupra acțiunilor Guvernului. Dacă primul aspect este relativ ușor de realizat, deși cunoașteți dovedite fraude electorale la nivel central și local, cel de-al doilea merită o atenție mai specială, întrucât nu cred că există un cetățean-alegător, grupuri de cetățeni-alegători, care să fie pe deplin convinși că sunt reprezentați, în mod real, în activitatea legislativă și, mai ales, în exercitarea funcției Parlamentului de control parlamentar. -
In this study the authors examine the issue regarding the ways to determine lineage and the recognition of the child (art. 408 and art. 415 and the following of the new Romanian Civil Code - Law No. 287/2009, republished on July 15, 2011 and entered into force on October 1st, 2011) noting the differences in relation to the previous regulation (the Family Code in force from February 1st, 1954 until September 30, 2011); in this context, on the one hand, the positive aspect of the new regulations is highlighted, and on the other hand, a series of lex ferenda proposals are also being carried out. -
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In order to achieve the objective of free circulation of civil and commercial judgments, as part of the process of judicial cooperation in civil matters, it was adopted the Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which shall apply only to actions brought, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. In spite of the fact that the Council Regulation (EC) No 44/2001 of 22 December 2000 which regulated the same matters, has significantly contributed to the development of an area of the free circulation of judgments, certain differences between national rules governing jurisdiction and recognition of judgments have been constantly hindering the effectiveness of the access to justice of the Union’s members. In regard to such difficulties, the Regulation (EC) No 44/2001 shall be superseded by Regulation (EU) No 1215/2012 whose provisions are aimed at unifying the rules of conflicts of jurisdiction in civil and commercial matters and at ensuring rapid and simple recognition and enforcement of judgments given in a Member State. For that purpose, the new Regulation (EU) No 1215/2012 has brought, in the matters of recognition and enforcement, not only necessary clarifications but also substantial changes, such as the exclusion of the requirement of a declaration of enforceability. Moreover, a short analysis of its provisions is required regarding several aspects, such as the refusal of recognition and enforcement, the applicable procedure, the transitional provisions and the circumstances in which Regulation (EC) No 44/2001 shall continue to apply even after 10 January 2015. -
The procedure of payment order has been regulated as a synthesis, but also as a reformation of the two previous procedures materialized in the Government Ordinance No 5/2001 on the procedure of the payment summons and the Government Emergency Ordinance No 119/2007 on the measures for combating the delay of the performance of the payment obligations resulting from the contracts between professionals. In its legislative work, by the new Civil Procedure Code, the legislator has not only achieved a fusion between the two normative acts, but it has also inserted novelty legislative solutions, bringing numerous amendments to the procedure and following its adjustment to the current legal, social and economic realities, in the attempt to harmonize the Romanian legislation with the European one. This study makes a detailed analysis of the nature of the procedure of payment order, of the characters and of the way it was conducted within the current normative framework, as well as of the vast judicial practice, by identifying the novelty elements of the procedure regulated by the new Civil Procedure Code, which – beyond the guaranteed additional accessibility and efficiency – require clarifications and specifications. -
Cititorii Dreptului au luat cunoștință de proiectul de lege relativ la noua modificare a legii Curții de Casație, în scopul reînființării recursului direct în materie de contencios administrativ, în expunerea de motive a d-lui M. Cantacuzino, ministrul justiției, ce am distribuit în supliment. Publicăm aici și raportul d-lui Petre Missir, care este un document luminos asupra legii propuse, aflată în discuția Senatului. -
The article analyzes the cassation recourse, which is an extraordinary judicial remedy in the criminal trial, a reformative and devolutive judicial remedy, in principle a non-suspensive of enforcement and extensive judicial remedy. The purpose of the cassation recourse is to ensure a uniform practice at the level of the entire country. In order to achieve this purpose, the legislator has expressly provided the reasons for which a cassation recourse may be promoted, the jurisdiction for settlement, the subjects for which the possibility to exercise the judicial remedy is recognized and the solutions which the court can pronounce. The usefulness of the cassation recourse is fully emphasized, given the fact that the recourse would no longer exist within the Romanian criminal procedure system subsequently to the entry into force of the new Criminal Procedure Code. -
This study deals with aspects related to the procedure of recourse in cassation, which involves two stages: the admissibility in principle, which plays the role of a filter of recourses in cassation, and the examination of the recourse in cassation after the admission in principle. There are presented the effects of the recourse and the solutions that can be given for its settlement, underlining their lack of correlation with the cases of recourse in cassation, where appropriate, in the light of the decisions of the High Court of Cassation and Justice. Likewise, the decisions of the Constitutional Court and the legislative amendments operated so far concerning the trial procedure of the recourse in cassation will be considered. -
The new legislative context was a strong argument, mainly, for reconfiguring the recourse, which is not a new legal remedy for our system of law, the cassation recourse being actually built on the structure of the recourse of the previous Criminal Procedure Code, with no fundamental differences in this regard. Article 433 of the Criminal Procedure Code expressly provides the purpose of the cassation recourse, which seeks to subject to the High Court of Cassation and Justice the examination, under the terms of the law, of the conformity of the challenged judgment with the applicable rules of law. However, the cassation recourse aims at ensuring a uniform practice at the level of the entire country. There are expressly provided the judgments which can be challenged by means of the cassation recourse, as well as those that are not subject to this extraordinary legal remedy. In relation to the specificity of this extraordinary legal remedy, the code imposes strict conditions on the contents of the application for cassation recourse, the holders and the time limit for bringing this action, aspects presented within the paper, being followed up all the legislative amendments that have occurred so far. -
This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
The Romanian Civil Procedure Code currently in force regulates, among others, the cross-appeal and the caused appeal, but these remedies are not regulated in the hypothesis of the (extraordinary) second appeal. The new Romanian Civil Procedure Code (published on 15 June 2010, but not yet in force) enacts both the caused cross-appeal and the caused cross-second appeal. After presenting the new regulation, the authors consider that, while the cross-/caused appeal is justified (since the appeal is a devolutionary remedy), the cross-/caused second appeal is not justified, since it is not compatible with the specific nature of the extraordinary second appeal. -
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The paper deals with the correct interpretation of statutory provisions governing the written reproduction of audio or video conversations and communications intercepted and recorded, including those conducted in other language than Romanian. The author argues that it is imperative that legal practice accounts for matters dealt with in order to avoid abuses in this area, resulting in deprivation of effects of material drafted in breach of the law. There are also highlighted the main changes operated in this area by the new Code of Criminal Procedure. -
Reopening the criminal trial in case of the judgment in the absence of the convicted person – an extraordinary means of appeal whose admissibility is subsumed to a set of conditions and requirements the fulfilment of which is meant to offer to the defendant the guarantee of a fair trial. -
The study contains an analysis of the theoretical and practical aspects concerning the extraordinary judicial remedy of reopening criminal proceedings in case of trial in absence of the convicted person in the light of the new Criminal Procedure Code. First, the author presents the reasons for imposing the establishing of an effective remedy in the positive law through which the person on trial in absentia can obtain a retrial in his presence. Further on, after a review of the evolution of national legislation in the field of safeguards for retrial of the person on trial in contumacy, the author of the study emphasizes the meaning conferred by the Romanian legislator to the notion of „trial in absence”. Similarly, there are treated the conditions and the procedure of reopening the criminal proceedings, the particularities of retrial and, finally, the concurrence between the procedural mechanism of reopening criminal proceedings and other judicial remedies – the appeal and the contestation for annulment. Likewise, the author also makes some proposals de lege ferenda for the purpose of improving the regulation of the analyzed institution and of avoiding the appearance of some non-unitary practices during its application. -
Pursuant to Article 1541 (1) b) of the new Romanian Civil Code, which entered into force on 1 October 2011, the court may reduce the amount of the penal clause if „the penalty is clearly excessive as compared to the prejudice which could have been provided by the parties upon the conclusion of the contract”. The author considers that the text is incomplete, in the sense that it does not specify whether the reduction of the penalties may be ordered by the court only on the debtor’s request (the system referred to in BGB – the German Civil Code) or also ex officio (a system presently regulated by the French Civil Code). The author believes that the reduction of the amount of penalties in question can not occur ex officio because fundamental principles of civil proceedings (especially the principle of availability) are violated. Finally, the author proposes an amendment of Article 1541 (1) b) of the Civil Code in order to be expressly stated whether the reduction of penalties occurs only on request or also ex officio. -
Under Article 1541 (1) b) of the new Romanian Civil Code, among the conditions in which the court may reduce the quantum of the penalty is also the condition that the penalty should be clearly excessive in relation to the damage that could be provided by the parties upon the conclusion of the contract. This text of the new Romanian Civil Code, which entered into force on 1 October 2011, has generated a controversy, in the sense that, once the „clearly excessive” character of the penalty has been retained, the court shall be required to proceed to the reduction thereof or, on the contrary, it has only a faculty (possibility) to proceed as such. In the opinion of the author of the study, the second interpretation is the judicial one. -
Currently, the law governing the criminal clause institution are laid down in Articles 1538 to 1543 of the new Civil Code. What holds the special interest of the legal literature, and, in particular, that of practitioners, is the court’s possibility to reduce the criminal clause where the principal obligation has been executed by the debtor (creditor’s advantage) and where the penalty is clearly excessive in relation to the damage that could have been set out by the parties upon the contract conclusion. This study presents the legal, doctrinal and jurisprudential evolution of criminal clause reducibility. -
The concept of complex offence is not defined by law, excepting a few European legal systems, such as, for instance, the Romanian and Italian legislation. In the majority of legislations, the term complex offence is approached only by the specialty literature, like the cases of German, Spanish or French law. Non-regulation of the institution of complex offence through a legal provision has however resulted in an uncertainty with respect to its content, as the authors have different opinions regarding this matter. -
Almost 8 years after 1 February 2014, the day when the current Criminal Code entered into force, it seems to be a useful step to analyze how the principles of Romanian criminal law are reflected in this Code. Following the examination, we will find that some of the principles enjoy express consecration, such as the legality of incrimination or the legality of the criminal law sanctions, and others have different applications in the body of the Criminal Code or are deduced from the economy of the criminal provisions. In the present paper we will review the doctrinal conceptions regarding the principles of the criminal law and the way in which they are reflected in the current Criminal Code.
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Although the science and the practice of law have always enjoyed the consideration and the appreciation of society, their academic recognition remained, mostly, a desideratum. As a complex phenomenon: art, technics and science at the same time, the law represents complexity and difficulty in perceiving and affirming its status of scientific and cultural science. That is why, although the faculties of law were among the founding faculties of universities, the lawyers and their discipline came relatively late in the dome of academies. In Romania, the Romanian Academy, created in 1866, was initially concerned with the study of the national language and history, hardly opening its doors for sciences, in general, and social sciences, in particular. Facing this „conservatorism” the representatives of different sciences have opted to create some specialized academies, such as the Academy of Sciences (1936) or the Academy (Institute) of Moral and Political Sciences (1938). It was only in 1948, by creating the Division of legal and economic sciences, when the law received express recognition among the concerns of the high academic forum, but the lawyers are still under-represented within it. The increasing role of law in post-modern society and asserting its status as social complex science impose the revaluation of its academic status as well. -
The codification is not only the expression of the political will of the legislator, but mainly a complex judicial technique of selecting and adjusting the normative content needed and adequate for a certain social, political, economic or institutional reality. As the constitution is a law, but it is rather differentiated from a law, the question to be raised shall consist in deciding what kind of legal rules it comprises. The settlement of this problem has to take into consideration the specificity of the fundamental law, but also the requirements of the codification theory. The establishment of the normative content of the constitution with all scientific rigor shall be indispensable, both for the removal of the inaccuracy as regards the determination of the differences from the law, for the stability and predictability of the basic law and last but not least for the reality and effectiveness of its supremacy. This study carries out an analysis of the techniques and requirements of selecting and adjusting the constitutional rules depending on the comparative criteria, referring to their specificity, to the practice of other states and within the historical background. -
In the research hereby, the author considers that in determining the amount of pension for retired judges between July 3rd, 2010 and December 31st, 2010, one should consider compensation in the amount admitted for the magistrate (judge or prosecutor) by Framework Law no. 330/2009, and not the one diminished by 25% (according to Law no. 118/2010 on certain measures requisite to restore budgetary balance), as the latter had temporary character (July 3rd to December 31st, 2010) and by the aforementioned Law there was no readmission of the magistrate (as accomplished since January 1st, 2010, under the Framework Law no. 330/2009).
