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The very short term usucapion can be considered a specific simplified usucapion, regulated by the provisions of the Law No 7/1996, as amended and supplemented, which represents a special way of acquiring the property right with regard to the real estates, in principle, not registered in the land book and for which there are no property deeds, through the possession noted in the land book uninterrupted for a period of 3 years. The specific usucapion analyzed applies only for the acquisition of the property right, in case of sporadic registration operation, regarding real estate lands, with or without constructions, which may form the object of private property, not registered in the land book or registered in the land book opened under the Decree-law No 115/1938, in accordance with the law. -
For the Romanian legal system, the case law does not have the quality of a formal source of law. However, the legal reality, viewed also from a historical perspective, has demonstrated the essential role of judicial practice in the interpretation and application of the law, in building argumentative practices, in clarifying the will of the legislator and discovering the less obvious meanings of legal norms and, last but not least, in the unification of legal thinking and practice. That is why case law, along with doctrine, is an important component of the Romanian legal system. Starting from these considerations, in this study we aim to emphasize some aspects of the role of the constitutional case law in shaping and even in the development of some principle s of law. We emphasize in particular its contribution to the emergence and development of the constitutional review of laws, as well as to the edification of principles of law. We mainly analyze the role of judicial practice in the construction of the principle of proportionality in constitutional law, of the principle of equality and the interference between the principle of proportionality and the principle of equality. In this sense, we support the role of the case law not only in the correct interpretation and application of constitutional norms, but also in their construction, in discovering the existing normative meanings most often only implicitly in the formal expression of the legal norm of the above-mentioned constitutional principles. Thus, the case law in constitutional matters is not limited to the interpretation by classical methods of the norms of the Fundamental Law, but has an important contribution to the clarification and construction of some principles of law, to the constitutionalization of the entire legislative system and of judicial practice of all courts of law
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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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The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery.
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În România, dreptul de proprietate privată este unul esențial, fiind prevăzut în Constituție1 în cadrul capitolului II referitor la drepturile și libertățile fundamentale. Acest act normativ reglementează dreptul de proprietate privată în mod detaliat, în cele nouă alineate ale art. 44. Pentru a reglementa acest drept, legiuitorul constituant a avut la dispoziție un vast material documentar, format în primul rând din dispozițiile vechiului Cod civil referitoare la proprietate și la regimul ei juridic, bogata doctrină acumulată între timp, precum și practica judiciară a instanțelor, toate acestea fiind adaptate la dinamica continuă a vieții sociale și a circuitului civil din societatea românească, la care se adaugă dreptul comparat în materie
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Potrivit art. 457 alin. (1) C.pr.civ., hotărârea judecătorească este supusă numai căilor de atac prevăzute de lege, în condițiile și termenele stabilite de aceasta, indiferent de mențiunile din dispozitivul ei. De asemenea, conform prevederilor art. 460 alin. (3) C.pr.civ., în cazul în care prin aceeași hotărâre au fost soluționate mai multe cereri principale sau incidentale, dintre care unele sunt supuse apelului, iar altele recursului, hotărârea în întregul ei este supusă apelului.
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Potrivit art. 349 alin. (1) C.pen., neluarea vreuneia dintre măsurile legale de securitate și sănătate în muncă de către persoana care avea îndatorirea de a lua aceste măsuri, dacă se creează un pericol iminent de producere a unui accident de muncă sau de îmbolnăvire profesională, se pedepsește cu închisoare de la 6 luni la 3 ani sau cu amendă.
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According to the relevant legal literature, public property and private property are the two typical – indeed, the only – manifestations of the same subjective right. For this reason, public property rights are stereotypically defined, in a manner analogous to how we define the right to private property, as the interfusion of the three classical elements (powers) of property – usus, fructus, and abusus – which are understood to be exclusive, absolute and perpetual. Moreover, it is claimed that the private appropriation of goods does not boil down to individual property, and that the collective appropriation of goods is mediated by the State, which is the legal expression of the community’s collective will. These ideas are not free from criticism. The three powers of property coalesce to define an act of exclusion, and one which necessarily presupposes an individualistic slant to the legal construction of property. By giving account of itself in such a way, this species of subjective right cannot, while also remaining true to itself, be private in certain cases, and public in others. The exclusive right to property, precisely because it is conceived to be exclusive, presupposes and individual owner. In doing so, it precludes any form of collective ownership. Therefore the legal framework within which public property is currently defined reveals a powerful internal contradiction, which is not without practical consequence. For these reasons, the right of public ownership, being what it now is, cannot truly be a means to the collective appropriation of goods by the community. And this is because any form of collective ownership cannot be compatible with „all” the exclusionary and discretionary powers afforded to the individual proprietor by the private right of ownership.
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Are separate opinions necessary? Writing them involves both time and resources, and the result does not influence the causes in which they were formulated. In this context, the logical question is why some national and international judges choose to formulate such opinions. We appreciate that the main reason is the potential of these opinions to contribute to the development of the future judicial practice. The aim of this study is to emphasize the importance and benefits of regulating the separate opinions in national legislation and to encourage their use. In this study we aim to analyze the purpose of the separate opinions along with the arguments for and against their regulation in national legislations. We will also analyze the difference between separate and concurring opinions, but also the different result that these opinions may have. We will also address the issue of the style in which these opinions are written and the impact it may have on future case law. A distinct part of this paper will be devoted to the analysis of separate opinions in national courts. At the same time, we will follow if there are differences between the constitutional court and the common law courts, regarding the use of these opinions. At the end of the study, we will make some proposals de lege ferenda on the need for legislative development of the field of separate and concurring opinions, development which would encourage their use and, at the same time, would limit the purpose of using these opinions to the development of the case law.
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The present paper aims to analyze extensively the institution of commitment of the responsibility of the Government before the Parliament, trying to identify possibilities to improve the current constitutional regulation in Romania. For this purpose, in a first part of the paper, in order to better understand the resources of the institution, the comparative method is used. Thus, similar regulations from other states are widely presented, such as the vote of confidence in a number of parliamentary regimes (United Kingdom of Great Britain and Northern Ireland, the Federal Republic of Germany, the Fourth French Republic), as well as the regulation of the commitment of the responsibility of the Government in the current French semi-presidential regime. Subsequently, the paper focuses on the regulation of the institution of commitment of the responsibility in Romania, being studied the manner of application thereof by the Government in the last 30 years. Several perspectives are used for this purpose: that of doctrine, an occasion that allows the presentation of arguments for and against the current regulation of the institution; that of constitutional practice, which allows the understanding of some disfunctionalities of the current regulation; and, finally, that of the constitutional case law developed in the last three decades, on which occasion it can be deduced a complex theory developed by the constitutional court regarding the limits of the use of the institution. At the end of the paper, a series of proposed amendments are analyzed on the occasion of various attempts to revise the Romanian Constitution and an extensive set of proposals on improving the current regulation is presented. As a consequence, the present paper provides a starting point for the future use of the institution of commitment of the responsibility of the Government, but especially for the improvement of the current constitutional regulation.
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The state of emergency is one of the two exceptional measures regulated by the Romanian Constitution and by the Government Emergency Ordinance No 1/1999. It is a set of exceptional measures of a political, economic nature and of the nature of public order instituted when there is a serious danger for the national security and the functioning of constitutional democracy. Another legal reason to declare a state of emergency is to avoid a calamity or to exhaust the effects of a disaster. Inevitably, the measures adopted during the state of emergency lead to the restriction of the exercise of certain rights and freedoms, which is why constitutional and legal guarantees must be ensured in order for this restriction not to be abusive. The state of emergency is established for a period of maximum 30 days by decree of the President of Romania. The measures ordered by decree must be approved by the Parliament within a period of maximum 5 days. Contradictory opinions have been expressed in the doctrine regarding the legal nature of the decree of the President of Romania and of the acts issued pursuant to this decree (military ordinances and orders). Recently, the constitutional contentious court and the administrative contentious courts have ruled on the legal nature of administrative acts issued under the state of emergency. The next step in the evolution of this problem should be the reform of the normative framework regarding the exceptional states in accordance with the current provisions of the Basic Law, with the constant case law of the constitutional contentious court and, last but not least, with the approaches of some similar European regulations.
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This study analyzes the consequences of the intervention of a more favourable retroactive contraventional law (in a broad sense) both in terms of substantive law and in terms of the procedural instruments which establish the intervention of this norm. Analyzing the incidental legislation in the light of the provisions of the criminal law, which constitutes the „general law” in the interpretation of the rules of the material contraventional law, according to the provisions of Article 47 of the Government Ordinance No 2/2001, we came to the conclusion that both the decontraventionalisation law and the more favourable contraventional law operate by law, the bodies with attributions in contraventional matters “noting”, and not “pronouncing” the effects generated by the intervention of the more favourable law in a broad sense. This conclusion transposed at procedural level required a concrete analysis of the procedural institutions by which the effects of the retroactive law are taken into account depending on the procedural moment in which it intervenes.
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The national system of public administration is subject to the impact of the medical-sanitary crisis in various forms, on all levels of organization, being additionally responsible and obliged to identify solutions of a normative and administrative nature. One of the important negative effects generated by the current medical-sanitary crisis is the impossibility of the administration to ensure the continuity of activities whose realization is conditioned by administrative authorization, by extension/renewal of authorizations, approvals, agreements, etc., making use of some acts during the validity period, in the sense of giving them the effects provided by law, or the exercise of some personal rights, on the basis of some documents (such as identity documents) when they are in the period of validity. The lack of an infralegal normative framework, of secondary regulation, establishing the scope of the documents the validity of which is extended during and beyond the cessation of special states of emergency and of alert and the conditions in which the prorogation of validity operates, leads to a non-unitary application of the normative act of primary regulation, which includes a general formulation, and inevitably at an additional pressure on the specialized administrative contentious courts, which will be notified either by their holders/beneficiaries, or by third parties whose rights and legitimate interests are harmed.
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The new Criminal Code has substantially modified the modalities of judicial individualization of punishments applied to defendants, also bringing novelty elements regarding the calculation of the fine, the possibility of its cumulative application with the sentence of imprisonment, when the offence committed was intended to obtain a patrimonial benefit, or the possibility of replacing it with community service work. By this study, I intend, through a careful analysis of both the case law of the European Court of Human Rights and the doctrine, regarding Article 7 of the Convention, as well as of the principle of legality in general, to argue the impossibility of the judge to order the revocation of the suspension under supervision of the sentence in case that a penalty with the fine, applied to the same person, was replaced by the sentence of imprisonment.
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According to the legal provisions in force, public institutions and authorities (ministries and other specialized bodies of the central public administration) are obliged by the law to ensure their effective security and protection. Also, the security of the objectives of special importance for the defence of the country and for the activity of the state is provided by gendarmes, which have military status. Although the presence of military personnel in public institutions and public authorities is a requirement imposed by the law in order to protect the premises of the institutions, the measures taken by the authorities for managing the SARS-CoV-2 coronavirus pandemic determined, inter alia, a substantial involvement, superior to the one existing in normal conditions, of the military personnel. More specifically, they were part in the actions of the public order bodies of vigilance regarding the observance of the restrictions of movement imposed on the occasion of the establishment of the state of emergency and subsequently the state of alert, as well as in the protection of the public authorities. This aspect translates into a significant increase of the numerical presence of military personnel in everyday life. Without being exhaustive, this study aims to analyze the jurisprudence of military courts on how the provisions on the offence of violation of guard and security duty were interpreted and applied, an analysis which revealed some problematic issues in terms of predictability and accessibility of legal provisions.
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The article presents some reflections on the positive procedural obligation of criminal prosecution bodies to identify the successors of the victim of the offence or the injured persons who have suffered damage by ricochet (indirect victims), in order for them to exercise civil action, in the light of the new Criminal Procedure Code.
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Completul pentru dezlegarea unor chestiuni de drept în materie civilă al Înaltei Curți de Casație și Justiție s-a pronunțat pe 17 februarie 2020 cu privire la reținerea contribuției de asigurări sociale de sănătate asupra indemnizațiilor plătite în baza Legii nr. 341/2004
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În practica judiciară nonpenală din România, cel mai invocat drept prevăzut de Convenția (europeană) pentru apărarea drepturilor omului și a libertăților fundamentale a fost, este și, cel mai probabil, va rămâne dreptul la un proces echitabil, prevăzut de art. 6. Acest lucru se datorează faptului că instanțele judecătorești trebuie să soluționeze un număr impresionant de litigii (în condițiile unor scheme de personal subdimensionate), mult peste media sistemelor judiciare din vestul Europei.
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Termenul de prescripție a dreptului la acțiune în rezoluțiunea promisiunii de vânzare-cumpărare începe a curge doar de la momentul în care partea interesată a dobândit certitudinea că pârâtul se află în imposibilitate de a-și executa principala obligație asumată.
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Durata de suspendare a exercitării dreptului de a conduce autovehicule în situația nepredării permisului de conducere începe să curgă de la expirarea perioadei de 15/30 zile și nu de la data rămânerii definitive a hotărârii civile sau de la data înștiințării efectuate de organele de poliție către inculpat în legătură cu această perioadă.
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Potrivit art. 244 C.pen., inducerea în eroare a unei persoane prin prezentarea ca adevărată a unei fapte mincinoase sau ca mincinoasă a unei fapte adevărate, în scopul de a obține pentru sine sau pentru altul un folos patrimonial injust și dacă s-a pricinuit o pagubă, se pedepsește cu închisoarea de la 6 luni la 3 ani, iar înșelăciunea săvârșită prin folosirea de nume sau calități mincinoase ori de alte mijloace frauduloase se pedepsește cu închisoarea de la unu la 5 ani. Dacă mijlocul fraudulos constituie prin el însuși o infracțiune, se aplică regulile privind concursul de infracțiuni (cu notă aprobativă).
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European democratic societies have shown, in recent years, an increased interest in reforming justice, the aim being to make more efficient the process of administration thereof. Likewise the efficiency of justice is a complex and continuous process which involves, among other things, guaranteeing the quality of the judicial decision and resolving the cases within a reasonable time. Within the present approach the author made a radiography of the most important reforms initiated and partially carried out in France, Italy and Spain. The investigation carried out has led to the conclusion of the existence of some common regulatory trends, but also to the existence of some different solutions. Common trends have been identified in terms of judicial organization, distinguishing itself a process of concentration of jurisdictions and of specialization thereof. The most significant example from this point of view is that of France, a country where a recent reform has led to the merger of the courts with the high courts. The courts resulting from this concentration are called judicial courts. In Spain, the justice reforms were initiated in 2001 following the conclusion of a „State Agreement” between the Government, the People’s Party and the Socialist Party. In Italy in recent years it was undertaken a reform which led to the increase in the competence of justices of the peace. In all the mentioned states there was also a marked tendency towards making more efficient the alternative ways of resolving the conflicts. Different procedural and judicial options were found regarding the composition of the superior councils of the magistracy, the organization of judicial inspections and the organization of the Public Ministry. Such options take into account the particularities of each judicial system, which excludes a total uniformity and are part of the democratic processes aimed at consolidating the state of law.
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By reference to the real guarantees, which, theoretically, ensure a greater security of the execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of flexibility. Through the fidejussion mechanism, the creditor will have as common guarantee at least two patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it can also be satisfied from the patrimony of the fidejussor or fidejussors. No one can become a fidejussor-guarantor against his will. Regardless of its nature, the fidejussion has a contractual nature, being able to arise only through the agreement between the creditor and the fidejussor. The law or the judgment only requires to bring a personal guarantee. When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still remains legal or conventional, as the case may be. The judge only orders the execution of the legal provision or of the convention. Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a party undertakes to another party to grant a loan to a third party, in which case the creditor (the person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay the loan received by the third party.
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The additional acts do not enjoy a legal definition in the labour legislation, although some legal texts make reference thereto or the necessity of their conclusion results from the interpretation of the legal provisions. At the same time, the conclusion of the additional act to the individual labour contract is frequently used in practice. Among the measures to make the labour relations more flexible is the temporary change of the workplace at the domicile of the employee, in which situation there must be concluded an additional act to the individual labour contract. It is necessary de lege ferenda to enshrine a legal definition of the additional act in the Labour Code.
