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Potrivit art. 598 alin. (1) lit. c) C.pr.pen., contestația împotriva executării hotărârii penale se poate face când se ivește vreo nelămurire cu privire la hotărârea care se execută sau vreo împiedicare la executare -
Electromagnetic pollution is increasingly becoming a public health and environmental problem at the same time with the introduction of 5G technology, which involves for solving the intervention of law and the exercise of public and civic democratic control. The exposure of the people and of the environment to electromagnetic waves, which has become massive, no longer pertains exclusively to labour safety, but becomes a challenge for public health. The combined application of the principles of prevention and precaution requires an adequate regulation of the activities generating electromagnetic fields, regarding the allocation of frequencies and the authorization of the related installations, as well as the establishment of the protection measures against proven and possible negative effects on people (consumers, employees, vulnerable people). The obligation to assess in advance the impact on health and environment, the democratic control, the transparency of the decision-making process and the compliance with the requirements of the rule of law are fundamental landmarks of the relevant legal regime. The intervention of the law implies, first of all, to ensure the prevalence of the public interest, the protection of the fundamental rights and freedoms of the individual, coming after the right to life, to health and the freedom of choice and the rejection of arbitrariness and immunity claimed by the operators.
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We have taken into account that there have been several discussions with regard to medical legal liability, related to such a domain of maximum sensitivity, which is why the regulation of this form of liability is fully justified. Thus, medicine, being a social activity, cannot be deprived of a legal regulation that would protect the interests and rights of both the medical staff and, especially, of the patients. The liability based on the medical error cannot be one of an objective type, because, in principle, the doctor’s obligation is one of diligence and in rare cases it is one of result; depending on this aspect, at the time when the doctor guarantees a certain result, expressly expressed by him, his mistake will have an objective foundation. There have been doctrinal controversies in order to correctly qualify the type of liability that can be engaged depending on several factors, liability that may be civil tort, contractual, civil special or professional one, as appropriate. We have considered necessary to emphasize that the foundation of liability is represented by the relations established between the patient and the doctor, between the patient and the units providing medical services, units that can be in the public medical service or circumscribed to some private forms of practising medicine.
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Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio” attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request.
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As it is well known, the insolvency procedure involves the collaboration of the insolvent company, of the syndic judge, of the creditors and, of course, of the judicial administrator. Once the state of insolvency is established by the court, one of the first steps is to assess the debts of the insolvent company, and this action can be done only by communicating the state of insolvency to the creditors, in order to allow them to record their claims to the company. At this stage, an important role is that of the judicial administrator, who must work with all those involved in the procedure in order to determine the amounts owed to the creditors. The judicial administrator is not limited to receiving the creditors’ requests. He must analyze each claim, must establish the amount claimed and ascertain whether that claim is based on a valid title
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Simplification and debureaucratization, in many cases, indeed, lead to a positive result. However, the complexity and apparent bureaucratization of some institutions and procedures, in many cases, have a well-defined, useful, even necessary role. The elimination of functional and strict requirements may drive the expected rationalization but an undesirable adverse effect: dysfunctions and legal uncertainty. These ideas can be best illustrated by the recent amendment of the Law No 31/1990 on companies, through Law No 23/2020 for the simplification and debureaucratization of the transfer of shares („social parts”) and the payment of the share capital. Unfortunately, in recent years, the limited liability company has become a subject of experimentation for different improvement attempts, without noticing that companies’ legal regime is an organic whole. Most of the time, reforms are well-intentioned but distorted by enduring normative realities. They also distort the existing law: as is currently the case with share capital and shares transfer.
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The formation of public law in the Romanian Principalities bears, on the one hand, the imprint of the political will of the states with strong influence in this part of Europe in the first half of the 19th century, and, on the other hand, it reflects the spirit of Western constitutional thought and practice, much modernized after the French Revolution of 1789. Concerned with the constitutional and administrative modernization of the two Principalities were mainly Russia, France, England and Austria, each of these great European powers pursuing, in fact, their own objectives, of political and economic nature. Instead, Turkey did not support at all the modernization of Wallachia and Moldova, being interested in maintaining the Phanariot regime. At the confluence of the contradictory interests of these powers, the Principalities did not have an active, decisive role in their own constitutional and administrative modernization. Nevertheless, the changes and transformations produced in the Principalities at the initiative and with the determination of the mentioned states, were generated by the clauses of some international documents (the Treaty of Adrianople of 1829, the Peace Treaty between Russia and Turkey of 1856 and the Paris Convention of 1858). To these it is added the Developing Statute of the Paris Convention, imposed by the will of Prince Alexandru Ioan Cuza
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This doctoral research investigates the case law development of the principle of loyalty within the framework of the invisible constitution theory. Uncodified counterpart of written constitutional rules, the invisible constitution belongs to a broader understanding of the concept, specifically the constitution in its material sense. Contemporary examples are found within the British constitutional order (e.g. constitutional conventions and case law), the French bloc de constitutionnalité (i.e. complementary unwritten rules) and the case law of the Hungarian Constitutional Court (i.e. the Sólyom model). Assuming a national invisible constitution exists, the paper aims to demonstrate that the principle of loyal cooperation belongs to such an invisible dimension of the Romanian constitutional order.
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The article addresses the problems concerning the crime of child pornography, in general, but it also includes some special emphasis on the legal implications which the conduct of the minor who makes pornographic materials with his own person, without being coerced by another person, might have. The analysis is one based on arguments from the specialized literature, but also on solutions from the judicial practice. In particular, the author proposes the recognition of existence, in the case of the crime of child pornography, in all its forms, of a special main legal object aiming at the need to respect the public order and peace, and, in particular, of a secondary object formed of the social relations referring to the protection of minors and of t he social relations whose proper development is conditioned by defending the public morality. With regard to the special issue caused by the minor’s act of producing, storing, possessing or distributing strictly in private pornographic materials of himself, the author rightfully considers that this act should not be subject to criminal liability, but rather to the psychological counselling of the minor with regard to the implications of the beginning and the development of the sexual life and, respectively, of the consequences that such deeds may have on the normal sexual development of the child.
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The study addresses the issue generated by the express regulation of the principle of loyalty in matters of evidence, especially from the perspective of the incidence of the sanction of exclusion of evidence in the cases where this principle has been violated. The author notes that, in general, legality and loyalty in the administration of evidence means the idea of honesty which the judicial bodies must show when constructing evidence, and the violation of these principles generates the solution of applying the sanction of exclusion of evidence. In addition, the article deals also with an aspect of these problems that has not yet received a unitary solution in the national doctrine and case law, respectively that of the existence of a conditionality between the incidence of the sanction of exclusion of evidence on the fault of judicial bodies in the illegal administration of evidence. With theoretical arguments and with examples from the practical activity of the courts, the author shows that the solutions are, on the one hand, in the sense of excluding evidence, and, on the other hand, in the sense of validating them, the court rulings being determined in these cases precisely by the finding of the good faith of the criminal investigation body.
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The premises for the adoption of the Decree No 195/2020 on the establishment of the state of emergency in Romania were the evolution of the epidemiological situation in Romania and the assessment of public health risk for the next period, which indicates a massive increase in the number of people infected with SARS-CoV-2 coronavirus, having regard to the fact that failure to take urgent, exceptionally social and economic measures to limit SARS-CoV-2 coronavirus infection among the population would have a particularly serious impact, mainly on the right to life, and, in the alternative, on the right to health of individuals
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Due to the pandemic shaking the world in 2020, law enforcement and military authorities also faced the serious strain of often new or substantially larger than usual volumes of assignments. The workload of border police, public security, immigration authorities and administrative bodies has increased radically, but the Armed Forces are also strongly involved in performing the tasks. During the state of emergency and the following health crisis declared in Hungary, legislative rules differing notably from the „normal” legal order were introduced, affecting our daily lives, work, relationships, and of course, the lives and services of the officers working for the authorities subject to our study. In this document, we analyse the major changes affecting the „armed” sector within the legal framework related to the pandemic, and – due to its dogmatic interest – the hospital command system developed for the increased protection of healthcare supplies is also covered
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Orice persoană poate solicita constatarea nulității absolute a unui act, dacă justifică un interes, or în cauza de față scopul urmărit de reclamant, prin constatarea nulității absolute a hotărârii comisiei județene de fond funciar, este acela de a include în sfera sa de administrare suprafața de teren menționată în actul a cărui anulare se solicită.
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In ipoteza în care s-a realizat un transfer electronic al unei sume de bani ca urmare a solicitării primite din partea beneficiarului sumei respective, atunci între părți a intervenit un contract de împrumut, restituirea sumei poate fi solicitată doar pe calea unei acțiuni personale întemeiate pe respectivul contract, iar nu pe calea unei acțiuni întemeiate pe îmbogățirea fără justă cauză. (Curtea de Apel București, Secția a III-a civilă și pentru cauze de minori și de familie, Decizia nr. 62 din 26 ianuarie 2021)1 .
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In any democratic state the activity carried out by the body of magistrates must be limited exclusively to the law and in compliance with the Constitution, because, otherwise, those judgments pronounced by ignoring these requirements, the fundamental rights and freedoms of the citizens, may lead to the commission of some judicial errors, through which the litigants suffer both from damage of material, but especially moral nature. -
Un element care trebuie avut în vedere atunci când se abordează problematica disciplinei Drept parlamentar este frecvența utilizării acestui termen în literatura de specialitate, precum și în programele studiilor de licență sau masterat ale facultăților cu profil juridic, ori ale unor facultăți de științe politice, în care disciplina Dreptul parlamentar s-a studiat și, poate, se studiază încă, ca disciplină/materie de sine stătătoare. Chiar și în limbajul comun termenul de drept parlamentar este suficient de bine încetățenit, ceea ce poate da naștere unei percepții publice eronate, asupra autonomiei sale, ca ramură individuală a sistemului de drept, față de alte ramuri ale dreptului, și, în mod deosebit, față de dreptul constituțional ...
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We are witnessing tremendous progress in the fields of biology and medicine, which consist the possibility to take human cells, tissues and organs for the purpose of their transplantation into another subject’s body, genetic engineering operations, medically assisted human procreation and many other such revolutionary techniques. All of these have proven to be two-edged weapons: on the one hand, they can be used to save lives or to help some couples who, under normal conditions, cannot procreate to give birth to the much-desired children and, on the other hand, they can turn into threats to the human genome or to the social cohesion. It has become necessary for man himself to be the object of legal protection, and, at the same time, a new category of things has emerged, namely the biological products of the human body and the elements detached therefrom, which are intended to be used for therapeutic or research purposes. Thus arose the problem of the legal qualification of these things, which also raised the issue of the existence of a relationship between the subject of law and his body. The doctrinaires are divided into two camps: one that considers that between the subject of law and his body, qualified as a thing, there is a legal relationship of property and another that claims that the human body is the person himself. The qualification of the human body as a thing, the transformation into things of some of its products and of some elements detached therefrom, as well as the possibility of capitalizing on some personality rights, such as the right to voice and the right to image, are part of a process which was called the reification of the person. It is a constantly evolving process which has already included the controversial gestation for another as well. The present study is devoted to the identification of the dangers generated by the qualification of the human body as a thing, with special regard to the gestation for another.
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Selling land outside built-up areas has a specific regulation in Romanian law, often derogatory from the general provisions applicable in the field of selling goods, as regulated by the Romanian Civil Code. This specific regulation is comprised in Law No 17/2014 concerning some regulatory measures in case of selling agricultural land located outside the built-up area and for modifying the Law No 268/2001 on privatising commercial societies which administer state owned public and private property lands, destined for agricultural needs, act which suffered a series of important modifications by the Law No 175 from 14 th August 2020. This legal modification from 2020 implements a series of important legal changes related to the holders of pre-emption rights, but also concerning the specific modalities of selling agricultural lands located outside the built-up areas, when the holder of pre-emption rights does not want to buy. Also, in each case when the court is asked to give a decision which supersedes a selling contract, the petition is admissible only if the pre-contract is legally signed, according with the Civil code provisions and all other legal requirements are fulfilled, meaning: obtaining all necessary authorisations, respecting the pre-emption right, respecting the fiscal and land registration requirements. The law also clarifies how the pre-emption procedure works and how it is controlled by the state authorities.
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In this study, the author analyzes, in the light of the Convention for the Protection of Human Rights and Fundamental Freedoms, the manner of observing the principle of impartiality of the Romanian judges within the national procedures regarding the establishment and functioning of the associations and foundations. Within the introductory section, general elements regarding the freedom of peaceful assembly and association are presented, according to Article 11 of the Convention. Subsequently, the relevant provisions of the Government Ordinance No 26/2000 on associations and foundations are emphasized. Their analysis, from the perspective of the civil side of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms,considers the minimum standard imposed on Romania by this treaty. After presenting the conventional reference provisions applicable at the level of the Member States of the Council of Europe, the author demonstrates the lack of a hermetic delimitation between the subjective impartiality and the objective impartiality of the national judge, in the analyzed hypothesis. At the same time, it is outlined the need to respect the role of neutral arbitrator of the court. Based on the rich case law of the European Court of Human Rights, the author manages to capture the shortcomings of the national regulation. This study includes both a theoretical and practical debate on the obligations and responsibility of the Romanian state, according to the Convention, and a proposal de lege ferenda, in order to respect the principle of impartiality of judges. In relation to the large number of case files registered annually by courts of first instance, regarding the establishment and functioning of associations and foundations, the study is also an alarm signal, in order to avoid the responsibility of the Romanian state, according to the Convention for the Protection of Human Rights and Fundamental Freedoms.
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Starting from the specifics of the action in deficiency in the European Union law, the author pleads for the reconsideration of this action in the Romanian administrative law, as a legal means of stimulating the public administration in exercising the attributions regarding the organization of the law enforcement, so that it can become concretely applicable. In this sense, there are presented the theoretical and practical considerations that converge towards the recognition in our law as well of the defective action in accordance with the provisions of the European Union law, as well as the proposals de lege ferenda regarding the reconfiguration of the legal regime of this action.
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The completion of the criminal justice activity requires the immediate execution of the final criminal decisions and continuity in the enforcement activity. However, there are also exceptional situations in which the report on criminal enforcement law is suspended as a result of impediments to the execution of the punishment. Such a situation is also the postponement of the execution of the prison sentence or life imprisonment. Postponing the execution of the punishment is not a removal of the punishment imposed on the convict, but only the delay from which it is to begin, being an exception to the rule of immediate enforcement of the criminal judgment. In order to avoid situations of unjustified delay in the execution of the punishment, or even to the abolition of punishment, the legislator provided expressly and limitatively the cases and conditions in which the sentenced person may obtain the postponement of the execution of the punishment. Far from being exhaustive, the present study can represent a supporting element for certain legal or practical clarifications related to the institution of postponing the execution of imprisonment or life imprisonment.
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The cases that justify a home search are still the subject of important controversies both in doctrine and especially in practice. Also, the delimitation between the situation in which the criminal investigation agents enter a person’s home in order to carry out a home search and the situations in which the police agents are obliged to enter a home to fulfil their duties is of ten extremely sensitive. It is precisely these controversies that often lead state agents to be reluctant to enter a private space in order to avoid being accused of committing a crime. We hope that this study will prove to be a useful tool in identifying those hypotheses in which it is really necessary to resort to a home search as well as the criteria for delimiting the search and other institutions of criminal procedural law.
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The article presents the interpretation established by the Court of Justice of the European Union of Article 8 (1) (c) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, according to which the notion „arrest warrant”, as set out in this provision, is to be understood as designating a national arrest warrant distinct from the European arrest warrant. From another perspective, there are analyzed the consequences of the Decision in the Case C-241/15 and the effects on the procedure for enforcing the European arrest warrant of the requested person issued by a judicial authority from a Member State of the European Union.
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Unitatea Teritorială de Analiză a Informațiilor (UTAI) Oradea nu a desfășurat activități de punere în executare a vreunui mandat de supraveghere, în speță, ci doar a transmis cererea organelor de cercetare penală și ulterior a transmis către acestea răspunsul primit de la operatorii de telefonie mobilă. Prin urmare, nu se poate aprecia că aceștia au administrat probe în dosar, ci doar au intermediat, fără a face cercetări suplimentare, transmiterea corespondenței între organul de cercetare penală și operatorii de telefonie mobilă, acesta fiind și motivul pentru care nu aveau nevoie de aviz de poliție judiciară, întrucât nu desfășurau acte de urmărire penală. (Judecătoria Oradea, Secția penală, Încheierea nr. 198 din 10 ianuarie 2020).
