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In the ambience of the legislative framework instituted by the new Civil Procedure Code, this study intends to make an analysis of several aspects referring to the determination of the jurisdiction of law courts which settle disputes in matters of administrative disputes, regulated by the Law on administrative disputes No 554/2004, in comparison with the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses the compatibility of the procedural rules of common law included in the new Civil Procedure Code referring to the determination of the jurisdiction of the law courts in relation to the provisions of the Law No 554/2004 regulating the jurisdiction of the law courts in matters of administrative disputes. -
In the ambience of the legal framework established by the new Civil Procedure Code, this study proposes an analysis of some aspects referring to the determination of the jurisdiction of courts which settle civil disputes in matters of performance of civil contracts, in relation to the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses both the problems of determining the jurisdictions of the courts which settle disputes derived from the performance of civil contracts depending on the value of the object of the civil contract and the problems of determining the jurisdictions of the courts which settle the requests concerning the obligations to do or not to do, non-assessable in cash, having a contractual source. There are also analyzed the modalities for determining the jurisdictions of the courts which settle disputes derived from the tenancy contract, with its varieties, and, respectively, the leasing contract. -
The new normative framework in the matter of insolvency regulated by the Law No 85/2014 on the procedures for preventing insolvency and for insolvency brings some significant mutations in this matter, regulating the mentioned legal institution, of a great importance to the economic environment, by more clear, concise and predictable rules. In the ambience of the new regulation in the matter of insolvency, as well as of some special regulations in this matter, this study intends to make an analysis of a few general aspects regulated by the new normative framework in the matter of insolvency and by the special regulations in the field, pointing out, through a comparative analysis to the provisions of the former law, the elements of novelty brought in the matter of insolvency. -
The institution of administrative disputes in the matter of the ordinances or of the provisions of ordinances established as unconstitutional, as well as of the constitutional and legal regime thereof is less analyzed in the specialized literature and debated in the judicial practice from Romania. In this context, this study intends to make an analysis of the most controversial aspects related to the applicability of the institution of administrative disputes in this matter, as well as of some aspects referring to the particularities of exercising the action for administrative disputes against the ordinances or against the provisions of ordinances established as unconstitutional by the Ombudsman. -
In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law. -
As a sanction for non-compliance of obligations incumbent upon the convict during probation, revocation of the conditional suspension of penalty execution is governed by provisions of art. 83 and 84 of the Criminal Code in force. In recent years, legal practice of law courts in Romania are increasingly raising the question as to the deadline revocation of conditional suspension in case of non-compliance of civil responsibilities may be claimed; additionally, law courts embrace a different approach on the subject of procedural background in terms of admissibility of a claim as such. Taking our stand upon these premises, the review hereby aims to clarify some issues that, amid a weak legal framework, generated inconsistent case law in court activities, along with the above mentioned matters, while high interest was taken into consequences of probation period completion during the case trial. On the strength of a systematic review of relevant provisions in the field, and of a scrupulous comparative analysis of provisions set forth in the new Criminal Code and the new Criminal Procedure Code, the article highlights different cases brought to courts’ attention, the author considering that the claim’s enunciation and obtaining the revocation decision should occur before the probation period is completed and, implicitly, prior to the moment the convict’s rehabilitation de jure supervenes.
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Due to the prevailing technical nature and to the insufficient discussion on this subject in the doctrine and the specialised literature, the search of computers gives rise to controversies. The author presents, step by step, every phase of this probative procedure, emphasizing the criminal processual particularities in the light of the regulation in force (Article 168 of the new Criminal Procedure Code) and of the previous one [Article 56 (4) of the Law No 161/2003 corroborated with Article 100 and following of the Criminal Procedure Code of 1968], as well as the technical – computer particularities.
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A new decision of the European Court of Human Rights (the Judgment of 19 June 2018 pronounced in the Case Bursa Barosu Bașkanligi et al. against Turkey) strengthens the case law according to which the useful effect of the right to a fair trial presupposes also the right to execute the justice decisions (inaugurated in 1997), including those that protect the environment (initiated by the Judgment of 12 July 2005 in the Case Okyay against Turkey) and opens new perspectives in this matter. Limited to procedural issues, the decision contributes, however, to the nuancing of the problems, encourages the progress of the effectiveness of environmental law by judicial means and, through the suggestions offered, underlines the need to particularize the legal reaction to the specific of the ecological realities. The deception is mainly resulted from the limitation to the data of the judicial precedent and the failure to fully use the capacities related to the involvement of the civil society in promoting the environmental judicial progress.
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Starting from Code of Canon Law we discuss some religious and legal aspects of the Catholic „natural marriage” which cannot be disconnected by t he contemporary cultural and social changes. Here we take into account the power of love which makes people see and wish not only the traditional appearance of marriage, but its real sense. From this point of view, we explain other sides of the nowadays marriage like irregular unions (civil marriages and partnerships) and invalidity of the canonical marriage. We consider that there should be avoided judges that do not consider the complexity of different situations in which people live or suffer. The Church works in the spirit of fraternity and charity and that is why those people who live in some exceptions of the „natural marriage” should be integrated in different ways within the Christian communities. -
The new regulatory framework, established in the matter of accelerating the process of restitution of real estate properties and of the compensatory measures by the Law No 165/2013 on measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania, also includes some regulations concerning the cases and the modalities of cancellation of the titles of property issued by the county commissions of land resources. In the ambience of the new regulatory framework, this study analyzes the regulations established by the Law No 165/2013 in the matter of cancellation or change of titles of property issued by the county commissions of land resources, as well as in the matter of cancellation or of changing the decisions issued by these commissions, which stood as basis for the issuance of the title of property. The analysis of these issues has been made by reference of the provisions of the Law No 165/2013 to other provisions established by the Law No 18/1991, the Regulation for application of this law, as well as by reference to the special normative acts of reparatory nature. -
The overview hereby analyses provisions of the Supreme Court’s decision no. III/2002, which regulates interpretation and uniform application of provisions of art. 2151 in the Criminal Code regarding the crime of embezzlement committed by the landlords’ or tenants’ association manager in his capacity as employee. The author substantiates, however, that provisions of decision no. III/2002 may not be applicable to managers employed with landlords’ or tenants’ associations lacking legal entity status, whereas these associations may not enter into individual employment contract, which is why the manager is not employed and therefore, not a civil servant, and, likewise, it may not be applicable to managers employed with landlords’ or tenants’ associations on the strength of legal agreement, whereas, in default of an individual employment contract, they are not employed and therefore, not civil servants.
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The article aims to analyze the main aspects that characterize the procedure of concluding the plea agreements, concluded between the prosecutor and the defendant, within the proceedings before international criminal courts. The fact that these courts have taken features from both legal systems, inquisitorial and accusatorial, as well as the fact that this procedure has been implemented in a stage subsequent to the adoption of the statutes of these courts, for reasons of practical necessity, makes their experience of over 12 years in implementing this procedure particularly useful to the European continental legal systems which, in their large majority, have recently adopted the Plea Agreement procedure. These also include Romania, once the „Plea Agreement” institution has been regulated within the provisions of Articles 478–488 of the new Criminal Procedure Code, which makes the study of the case-law of the international criminal courts also useful in the Romanian judicial practice. -
The authors examine criminal matters regarding prohibited practices in the area of competition from a comparative perspective. The study refers to the competition law in the European Union, in some of its Member States, in the United States of America, as well as in Romania. -
The author, without claiming to exhaust the subject, drew up this study in the attempt to start a theoretical discussion, but with practical implications as well, regarding the real concurrence of offences between the aggravated thefts committed under the circumstances provided by art. 209, parag. 1, letter i) of the Criminal Code, namely by breaking, escalade or use without right of a real or false key and the trespassing provided by art. 192 of the Criminal Code. -
This article proposes to examine certain aspects related to the incompatibility of the criminal investigation bodies and of the prosecutor within the criminal lawsuit. The authors take into consideration mainly the incidence of incompatibility cases in the stage of preliminary acts, emphasizing the case of incompatibility set forth in art.48 paragraph (1) letter d) of the Criminal Procedure Code. Through their scientific undertaking, the authors try to demonstrate that incompatibility concerns, to the same extent, both the stage of criminal prosecution, and the stage of preliminary acts. Likewise, the scope of the above mentioned incompatibility case and the decision related to its prosecution are examined from the perspective of the provisions of the (European) Convention for the protection of human rights and fundamental freedoms and of the case law of the European Court of Human Rights, as well as in the light of the provisions of the new Criminal Procedure Code. -
The article offers an analysis of the regulation of the institution of unworthiness to inherit as regulated by the Civil Code which entered into force on 1 October 2011. First the author had in view both the influences of the foreign regulations which served as a model for drafting the normative act and the conclusions of the Romanian doctrine and of the case law relevant in the matter, which the Romanian legislator has taken into account. Starting from the nature of civil sanction of the unworthiness to inherit, there are analyzed the modalities which can remove the effects thereof, formulating, at the same time, relevant de lege ferenda proposals in order to create a unitary system as comprehensive as possible relative to the related procedure. -
Law no. 85/2006 on the insolvency procedure, under Article 138, ties to rules the cases and the conditions under which managerial or supervisory staff of the debtor (legal entity), facing insolvency, is to answer patrimonially for having caused the state of insolvency of the relevant debtor (legal entity). In practice, in relation to this wording, it was raised in case law the question whether those by right can make such a request (on grounds of Article 138), subsequent to the occurrence of closure of the insolvency proceedings (under Articles 131-137 of the same Law). The author argues – bringing arguments to that effect, that it is required a positive response. -
In the regulations of the new Criminal Code, the legislator has not opted for a limited criminal liability of the legal entity, but for a general liability which may result because of the commitment of any criminal offence. Except the state, the public authorities and the public institutions which carry on any activities not representing the subject matter of the private field, the other legal entities may hold the capacity of active subject, no matter the nature and the seriousness of the committed criminal offence. The criminal liability shall be laid upon the legal entity only when the respective entity having a position of management, provision, decision etc. commits the deed set forth by the criminal law in carrying out the business line or in the interest or on behalf of the legal entity. In case of committing a deed set forth by the criminal law, both the criminal liability of the legal entity and of the natural person who contributed to its commitment or only of one of these two categories of persons. -
Leave of absence is a motivated missing (absence) from the workplace, being a period when the employee does not work. As the leave of absence from the workplace is not legally regulated by the normative acts in force, in practice, when the employee requests leave of absence in order to solve some personal matters, discussions arise as to whether or not he receives salary during the leave of absence. This study raises for discussion some considerations and proposals referring to the legal status of the leave of absence from the workplace, both for the employees from the budgetary sector and for the employees from the private sector. -
This study analyzes the particularities involved by the powers of the Court of Accounts to establish contraventions and to apply offences punishable in the specific activity of control/audit they achieve. Two categories of offences can be identified, namely contraventions that the Court of Accounts only finds, not having the power to apply sanctions against them, and contraventions for which the Court of Accounts is competent not only to identify them but also to apply the sanctions for them. The rules on contraventions that may be applicable to deviations discovered by the Court of Accounts can be found in the Law on the organization and functioning of the Court of Accounts No 94/1992, as well as in other special regulations that are analyzed in this article. The approach is carried out not only from a legislative and doctrinal perspective, but also from a case law perspective, being exemplified in some solutions given by the courts in cases concerning complaints against the contravention reports drawn up by the Court of Accounts. Finally, some conclusions are presented, which also include the authors’ point of view on the perspective approach, including by the legislator, of this issue. -
The institution of appeal in the interest of law has the role of unitarily ensuring the interpretation and implementation of law by courts of law. The legal nature of this procedure is not determined only by the criminal and civil normative provisions governing it. This study argues that this institution is constitutional in nature because, under the Constitution, the High Court of Cassation and Justice has the power to ensure the unitary interpretation of law by the courts of law. There are analyzed the consequences of the constitutional nature of this institution, the limits of obligativity of the settlements of matters of law given by the High Court of Cassation and Justice by means of the decisions ruled in these proceedings, as well as the ratio between the decisions of the Constitutional Court and the decisions of the High Court of Cassation and Justice respectively, ruled for a solution on the appeals in the interest of law. Recent case-law of the Constitutional Court reveals new aspects regarding the possibility of verifying the constitutionality of decisions ruled on this matter. -
The present study examines in detail the conditions for contracting authority’s cancellation of the award procedure for the public procurement contract, taking into account that the legislative act (Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services) underwent the last 2-3 years - in the terms considered - radical changes likely to run on the current legal regime. -
The institution of the penal clause, regulated in Articles 1538–1543 of the new Civil Code, still encounters different interpretations, even contradictory sometimes, in the judicial practice and in the solutions of the courts. In particular, the interest of the practitioners and of the specialized doctrine is based on the possibility conferred to the court of law to reduce the penal clause in the two cases provided by the legislator, namely when the main obligation has been executed by the debtor to the benefit of the creditor and when the penalty is clearly excessive in relation to the prejudice which might have been foreseen by the parties on the conclusion of the contract. This study aims to analyse thoroughly the two hypostases in which the judge is allowed to defeat the principle of binding force of the contract and to intervene in the decrease of the quantum of penalties, an analysis materialized both from a theoretical point of view and especially from a practical point of view, offering relevant solutions from the recent judicial practice.
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Given the many amendments to the Government Emergency Ordinance no. 34/2006 and the entry into force of the new Code of Civil Procedure and the law implementing thereof, the author conducts an extensive review of the regulations relating to the appeal and recourse remedies at law, the competent courts of law and the possibility to join the appeals filed against the same public procurement procedure. In this context, the author carries out an analysis of a relatively recent and relevant judgment pronounced on a public procurement procedure by the Contentious Administrative and Fiscal Matters Section of the High Court of Cassation and Justice.
