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According to art. 1088, paragraph 1 of the Romanian Civil Code (in force, “For obligations having as object any amount, damages for performance shall comprise only the legal interest, except for the special rules regarding trade, guarantees and companies”. The author criticizes this regulation that actually leads, in numerous situations, to damaging the creditor, if the maximum interest limit is lower than the amount of the damage caused by failure to perform or late performance of the obligation to pay an amount, showing that the above-mentioned legal solution, taken from the French Civil Code, is not presently provided in the Italian, German, Swiss and English systems. Moreover, the new Romanian Civil Code, published in July 2009, but not yet effective, stipulates (in art. 1535, paragraph 3) that, if the interest due (for failure to perform the pecuniary obligation in due time) does not cover the entire damage incurred, the creditor shall be entitled, in addition, to damages for any additional damage incurred due to debtor’s failure to perform the obligation. In the end, the author considers that the regulation of the possibility for reduction of damages by the court would not be opportune – at present – in Romania. -
Lately, the National Council for the Settlement of Challenges faced numerous challenges against acts of various commercial companies, without having the capacity of contracting authorities, but who benefit from public funds for the performance of certain public interest projects, companies which, according to the financing agreements concluded with the financing bodies, should have made any acquisitions necessary for the performance of the projects based on the Government’s Emergency Ordinance no. 34/2006 on the award of public procurement contracts, of contracts for the concession of public works and of contracts for the concession of services. The study represents the second part of an article with the same title, published in issue no. 7/2010 of this magazine and is intended to present a comparison of diverging solutions to such challenges and the grounds they are based on, as encountered in the recent practice of the Council and of control bodies. -
Recently, the National Council for Solving Complaints has dealt with numerous complaints against the acts adopted by various companies, which do not have the capacity of contracting authorities, but are beneficiaries of public funds for carrying out certain projects of public interest, companies that, under the financing contracts concluded with the financing bodies, are required to perform the purchases necessary for carrying out the projects according to the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts. This article presents, in a comparative manner, the solutions provided for various complaints and the arguments they are based on, from the recent practice of the Council and the control courts, some of the given solutions and arguments exceeding the limit established by legal norms, in the opinion of the author commenting on them. -
Dreptul european al achizițiilor publice reprezintă una dintre materiile cele mai armonizate din dreptul Uniunii1, atât din perspectiva normelor substanțiale, cât și a celor procedurale (căile de atac împotriva deciziilor autorităților contractante)2 -
1. Achitare nelegalã. Gradul de pericol social al unei infracțiuni. În cazul în care legea prevede, în mod expres, cã o anumitã faptã prezintã pericolul social specific unei infracțiuni, în orice condiții de comitere, instanța nu poate pronunța o soluție de achitare și de aplicare a unei sancțiuni cu caracter administrativ. -
Furt calificat. Obiect material, bun mobil aparținând patrimoniului cultural național. Sit arheologic și zone cu patrimoniu arheologic protejat. Aplicarea legii penale mai favorabile. Grup infracțional organizat Faptele inculpaților de a constitui un grup infracțional organizat, urmate de comiterea unor detecții neautorizate într-un sit arheologic protejat, aparținând patrimoniului cultural național, și sustragerea de artefacte arheologice mobile întrunesc elementele infracțiunilor de: constituire a unui grup infracțional organizat, prevăzută în art. 367 alin. (1) C.pen., accesul cu detectoare de metale și utilizarea lor în zonele cu patrimoniu arheologic, fără autorizarea prealabilă, prevăzută în art. 26 alin. (1) din Ordonanța Guvernului nr. 43/2000 privind protecția patrimoniului arheologic și declararea unor situri arheologice ca zone de interes național, republicată, și furt calificat asupra unui bun care face parte din patrimoniul cultural, prevăzută în art. 228, 229 alin. (2) lit. a) C.pen., cu aplicarea art. 5 C.pen.
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Regulile de concurență prevăzute de Tratatul privind funcționarea Uniunii Europene2 au menirea de a proteja relațiile comerciale și piața internă. Întrebarea la care răspunde studiul de față este: cine este destinatarul normelor concurențiale la nivelul Uniunii Europene? Răspunsul, deși aparent este unul foarte scurt și se referă la întreprindere (și asociațiile de întreprinderi), totuși ascunde o doctrină bogată și o jurisprudență generoasă a Curții de Justiție a Uniunii Europene. În cele ce urmează, vom analiza noțiunea de întreprindere, care are o anumită sferă de aplicare în dreptul concurențial al Uniunii Europene, cu scopul de a determina care sunt jucătorii principali vizați de normele care protejează concurența pe piața internă. -
The author examines the problems of Article 267 of the Treaty on the Functioning of the European Union (in reference to the jurisdiction of the Court of Justice of the European Union to give preliminary rulings). The analysis, starting from brief theoretical considerations, grounds the author’s conclusions on the presentation of a vast case law of the Court of Justice of the European Union in Luxembourg in the matter.
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La data de 20 octombrie 2014, Înalta Curte de Casație și Justiție (ÎCCJ) – Completul pentru dezlegarea unor chestiuni de drept a soluționat trei cauze cercetând „problema de drept ce formează obiectul acțiunii privind caracterul discriminatoriu al dispozițiilor cuprinse în Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, cu modificările ulterioare, în raportare la dispozițiile comunitare cu care intră în conflict”1 și „dacă dispozițiile art. 4 din Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, și ale art. 1 alin. (2) din Normele metodologice de aplicare a Ordonanței de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobate prin Hotărârea Guvernului nr. 88/2013, se interpretează în sensul că timbrul de mediu se datorează și în situația transcrierii dreptului de proprietate asupra unui autovehicul rulat provenit de pe piața internă a cărui primă înmatriculare a fost anterioară datei de 1 ianuarie 2007”2.
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Articolul 60 din Codul muncii reglementează ipotezele în care angajatorului îi este interzis, pe o perioadă limitată de timp, să procedeze la concedierea angajaților săi. Articolul sus-menționat are următorul conținut: „(1) Concedierea salariaților nu poate fi dispusă: a) pe durata incapacității temporare de muncă, stabilită prin certificat medical conform legii; b) pe durata suspendării activității ca urmare a instituirii carantinei; c) pe durata în care femeia salariată este gravidă, în măsura în care angajatorul a luat cunoștință de acest fapt anterior emiterii deciziei de concediere; d) pe durata concediului de maternitate; e) pe durata concediului pentru creșterea copilului în vârstă de până la 2 ani sau, în cazul copilului cu handicap, până la împlinirea vârstei de 3 ani; f) pe durata concediului pentru îngrijirea copilului bolnav în vârstă de până la 7 ani sau, în cazul copilului cu handicap, pentru afecțiuni intercurente, până la împlinirea vârstei de 18 ani; -
The study hereunder provides a succinct summary of the case law of the European Court of Human Rights in the field of the right to marriage, or more specifically in the field of restrictions on the right to marriage. In this respect there are examined: the right to marriage of convicts; marriage of transsexual persons; same-sex marriage. Finally, in light of the case-law of the ECHR, the author concludes that are consistent with this case-law the provisions of the new Romanian Civil Code, which entered into force on October 1st, 2011, under which marriage may be contracted only between a man and a woman, marriage between same-sex persons being prohibited, while marriages between same-sex persons, contracted abroad, by Romanian citizens or foreigners are not recognized in Romania. -
Promoting a public „good governance” involves the rationalisation of the manner of functioning of the state and of the instruments used, among which there are those of a normative nature. The proliferation of legal rules – at national level, at European Union level and at international level – is today a general phenomenon, generating costs – legal, administrative, economic and others – more burdensome for the individual and for the entire society. The remedy for this situation is simplification, under its various aspects – administrative simplification, simplification of the legal language or of the legislative techniques –, an old method frequently used, however a new concept trying to stand out in the field of legal theory. The simplification of law as legal-administrative action has undergone various national and EU experiences. These have accredited a series of principles of conduct, have set targets to be attained and have promoted specific methods and techniques for achieving them. -
The author of the study critically refers to the contradictory opinions expressed in the doctrine with regard to the scope of companies covered by Article 1931 of the new Civil Code, a text which regulates the tacit extension of the duration of the company contract. Noting that, according to an opinion, the text is applicable not only to the simple company, but also to all companies with legal personality regulated by the Law No 31/1990 on companies, and, according to another opinion, it is applicable only to the simple company, the author advocates and argues his own opinion. According to the author’s opinion, the tacit extension of the duration of the company may occur in case of simple company (without legal personality), regulated by the new Civil Code, but also in cases of stock company and company limited by shares (companies with legal personality), regulated by the Law No 31/1990 (a special law in relation to the new Civil Code). On the contrary, the author considers that the text of Article 1931 of the new Civil Code is incompatible with the legal regime of the general partnership, of the company limited by shares and of the limited liability company (companies with legal personality regulated by the same special law), because, otherwise, the legal rule by which it is recognized to the personal creditors of the associates in these companies the right to opposition to the extension of the duration of the legal person would be eluded. -
In this study, the author proceeds to an exhaustive analysis of the provisions of Articles 519–521 of the new Romanian Civil Procedure Code, which, for the first time in the Romanian legislation, establish „the referral to the High Court of Cassation and Justice for a preliminary ruling for the settlement of some points of law”, also in correlation with some legislations of other states or international jurisdictions in the matter. -
This study aims to analyse the meaning of the term „reasonable grounds” enshrined in paragraph (2) of Article 11 of Law No 554/2004 on Administrative Proceedings. Neither the relevant framework law, nor any other regulation defines this concept, which creates problems in practice. The tendency in case law is to consider that „reasonable grounds” must be understood as a situation beyond the person’s control, insurmountable, in case of force majeure or fortuitous event. The present study seeks to correct this view and to promote the interpretation that the notion can be understood both in the sense mentioned above and in one where the parties use administrative methods to prevent a dispute from arising. -
One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment. -
The concept of material error is evoked in two texts of the Civil Procedure Code, respectively in Article 442 and in Article 503 (2) point 2. For the purposes of Article 442 of the Civil Procedure Code, according to the opinion unanimously accepted by the doctrine and by the case law, material error is the mistake slipped in the contents of the judgment, at the time of drafting, which does not affect the foundation or the legality of the solution pronounced by the court. The correction of such material errors is made according to a special procedure regulated by law, which has as its finality the correction of such errors slipped, at the time of drafting, within the minutes, the preambles, the recitals, or even within the operative part of a judgment, which may be a sentence, a decision or a minutes of the session. This category of material errors includes those related to: the name, quality and oral submissions of the parties, those of calculation, etc. The legal meaning of the concept of material error, within the meaning of Article 503 (2) point 2 of the Civil Procedure Code, is sensitively different from that attributed to this concept by Article 442 of the Civil Procedure Code. From this perspective, the material error is any essential and involuntary omission in relation to the situation existing in the file at the time when the court of recourse delivers the judgment. In other terms, the obvious material error concerns formal aspects of the recourse which had as consequence the wrongful settlement of this legal remedy. It is about that mistake made by the court by confusing some important elements or some material data and which determines the solution delivered. The doctrine defines the judicial error as the error of judgment committed by judges or by prosecutors in the course of conducting a judicial procedure. This error may be of law or of fact and in any system of law such an error stands as basis for exercising of the ordinary or extraordinary legal remedies.
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The neutral power, i.e. a power that is situated outside the three powers derived from the organisation of the state on the basis of the principle of separation of powers, was conceived and institutionalised in various ways. One of them transforms the Head of State into a power that distances itself from political games and the separation of powers. The Head of State plays the role of balancing power and that of mediator between legislative, executive and jurisdictional powers and between state and society. The following article examines the role of the Head of State as neutral power in the constitutional history of Romania and in the 1991 Constitution. -
The stages of the civil trial are: (i) the stage of referral to the court of law (written or initiating the civil trial), (ii) the stage of inquiry of the trial, (iii) the stage of debate on the merits of the trial, (iv) the stage of deliberation and (v) the stage of delivery. The accomplishment of the act of justice in civil matters is materialized through court sittings (which may be public, or in which only the parties participate, or not public, in the cases provided by law) and internal administrative stages carried out by the panel of judges (such as the checking and regularisation of the application). Publicity is a fundamental principle of the civil trial stated by the provisions of Article 17 of the Civil Procedure Code and by Article 12 of the Law No 304/2004, republished. The failure to ensure the publicity of the court sitting brings about the sanction of absolute nullity not conditioned by the existence of an injury under Article 174 (2) by reference to Article 176 point 5 of the Civil Procedure Code. The delivery of the judgment shall usually take place in public sitting, according to Article 402 of the Civil Procedure Code, or, as an exception, by making the solution available to the parties through the mediation of the registry office, pursuant to Article 396 (2) of the same Code, in the assumption that the delivery was postponed (premise condition) for justified reasons and the chairman of the panel has indicated expressis verbis this modality of putting the solution at the disposal of the parties. The delivery of the judgment, as the last processual stage, according to the Civil Procedure Code, can not take place otherwise than by means of a public court sitting, according to the principle of publicity, to which the chairman or a member of the panel of judges read the minutes, also indicating the means of appeal which can be exercised. The fact that the parties understand or not to make use of their right to appear in court (as in the case of other processual stages) does not in any way affect the obligation of the panel of judges to comply with the express provisions of the law in respect of the processual stage of delivery, since there is no such distinction in the law, and ubi lex non distinguit nec non distinguere debemus. In addition, the completion of this final stage of the civil trial is necessary for the parties to make use of their right to formulate orally the means of appeal provided by law, according to Article 126 of the Internal rules of the courts of law of 2015, concluding in this respect a minutes signed by the president of the panel and by the registrar of the sitting.
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The study provided by the author is devoted to some general approaches on the judicial and procedural systems in some countries in Latin America and in the Caribbean Sea area. The first part of this approach is dedicated to an introduction of the general reforms in the geographical area of reference and to the concerns of the governments in the area regarding the implementation of some reforms intended to make justice more efficient and more accessible to the litigants. The author notes that also in Latin America and in the countries of the Caribbean area the real problems of justice are not essentially different from those on other continents, including from the European area: the postponement of trials, the overcrowding of the courts of law and a modest funding of the judicial system. The political influences on justice in some countries in Latin America and the Caribbean area have led, in this geographical area as well, to a significant decrease of the citizens’ trust in the judicial system. The organization of the judicial systems from the countries of reference offers us a complex legal geography, in relation to the way of organization from the European countries, since in many states in the area the Roman-German law system coexists with that of common law, the latter’s greatest influence being found in the field of public law. The last part of the study presents us some of the most significant approaches at the level of the strictly procedural institutions. And the reforms undertaken in the last three decades in procedural matters cannot ignore the role and influence exerted by the Preliminary Draft Civil Procedure Code for Latin America. That is why the author presented, in a synthetic manner, the principles that were the basis of this important Latin American project and which had a positive impact on some of the regulations contained in the new Civil Procedure Codes adopted in recent years in the specified geographical area. The author’s investigation is not only of doctrinal interest, viewed from the point of view of a comparative research, but also a practical one in an era in which the effervescence of globalization forces us to new reflections on the organization of an efficient, fast justice that leads to prompt enforcement of the judicial decisions. Some of the procedural reforms in Latin America and in the Caribbean area can also be benchmarks for the reforms of justice in other countries, including in the European Union area. And, from among these, the most significant concern undoubtedly the acceleration of trials, the rationalization of the means of appeal, especially the appeal in cassation, the reduction of special procedures and the settlement of some cases, especially of low value, in a single hearing.
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In this article the author defines the judicial security and analyzes its role within the national security system, but also the relations between the judiciary system and the national security system. -
This paper deals with the problems of establishing the garnishment when the debtor is the Romanian State itself. The analysis is carried out in the light of the provisions of Article 5 (1) of the Government Emergency Ordinance No 146/2002, republished. At the same time, it is also analyzed the lack of incidence of the provisions of the Government Ordinance No 22/2002 in case of this debtor. -
The author considers that article 288 paragraph (1) of the National Education Law no. 1/2011 (text according to which the didactic activities exceeding a didactic workload are remunerated for each hour worked, and for the tenured didactic staff – in the higher education system – the maximum number of paid hours in the regime of payment per hour, no matter the educational establishment where the respective hours are worked, cannot exceed the minimum didactic workload) breaches the provisions of the Constitution of Romania, even though the Constitutional Court adjudicated otherwise under the decision no. 1090/2011. The basic argument forwarded by the author is that, in case of certain similar regulations contained in the contents of certain previous similar legislative instruments (Law no. 88/1993 and Law no. 128/1997), the same Constitutional Court, according to two decisions (no. 114/1994 and no. 30/1998) ruled otherwise than it had ruled in 2011 (that is, it stated that those decisions were unconstitutional). -
The direct action in the guarantee for hidden vices is still a new subject in the legal doctrine and especially in the Romanian judicial practice. At present, judicial practice has not committed such an action, although the issue has been debated, both in the doctrine of the old Civil Code, and especially in the doctrine of the new Civil Code. What is even more surprising is that the legislator understood to directly regulate such direct action in the case of the guarantee for eviction, without regulating it in the case of the cover for hidden vices. If technical and legal issues seem relatively simple in the case of direct action for hidden vices against a previous vendor or first seller, things get complicated when it comes to direct action in hidden vices against the contractor. The present study aims to identify the legal nature and the basis of the direct action in the guarantee for hidden vices against the contractor, thus establishing its admissibility criteria. By the arguments that we will render, we hope to contribute to the shaping of some defining elements of direct action that will facilitate its practical application.
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The article deals with the issue of joinder of executional files, making reference to the meaning of the syntagm „expenses incurred by the time of joinder”, to the possibility of reducing the court executor’s fee within this procedure, to the manner and to the time limit for contesting the interlocutory judgment of the court executor. -
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The present analysis is justified by the challenges generated by the regulation of the normative framework of public power intervention in the management of some new social realities, with a direct impact on the state-citizen relations, in the context of the COVID-19 pandemic. Undoubtedly, some measures established by the Law No 136/2020 on the establishment of some measures in the field of public health in situations of epidemiological and biological risk, taken most often with celerity, will be subject to the control of legality of the courts of law. It would be absurd for acts that ultimately affect fundamental rights and freedoms not to be subject to the means of appeal and not to pass through the judge’s filter, the latter being the one who will, actually, decide on the fairness of the measure adopted. At the boundary between the analysis of the legality and the appropriateness of the measures adopted by the competent authorities of the state, the court of law will have to rule so that both the citizen, viewed individually, and the community feel safe in front of a threat that humanity never faced before. From this analytical perspective, the authors intend to address the issue of the possibility to invoke in court the exceptions of illegality in the context of the provisions provided by Article 17 of the Law No 136/2020.
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Any scientific approach which seeks to understand the meanings of “rule of law” must be an interdisciplinary approach based on the philosophy of law. This study carries out such an analysis in order to highlight the many theoretical meanings for this concept, and the relationship between principles and legal rules, respectively the regulatory value of law principles. Such analysis is a plea for relating to principles in the work of law establishment and enforcement. -
The change of vision brought by the new Civil Code in re ation to the partition contract requires an examination more attuned to the practical aspect. This study shows that, due to the fiscal taxation and the problem of the community regime of spouses, it shouldn’t be indifferent to us the translative effect of the partition contract. The transition from the declarative effect has clearly intended to provide a more coherent system in regard to certain issues like the fate of deeds closed by a co-owner over the whole property as well as the guarantee for eviction and defects. However, we tried to state that the retroactivity of the declarative system provided as well palpable benefits for the person seeking to enter into a partition by mutual agreement. Also, in the final part of this study we provided some details regarding the conditions for registration in the land book of the legal hypothecation stipuled for the previous co-owner regarding the debt from eviction. -
Democrația ca formă de organizare și de conducere a societății trebuie să se adapteze la noile realități impuse de tehnologia digitală, mai ales printr-un anumit tip de revoluție educativă și culturală în serviciul utilizatorilor. Așadar, democrația în epoca digitală presupune, în primul rând, recunoașterea unui drept fundamental de acces la spațiul digital pentru a se evita în acest mod riscurile unei rupturi digitale, în sensul utilizării acestuia de un număr restrâns de oameni – o elită cibernetică –, implicând toate avantajele ce ar rezulta pentru aceasta din folosirea rețelelor de informare și de comunicare, cum ar fi, de pildă, internetul. Prin urmare, beneficiile unei societăți cibernetice nu sunt reale decât dacă instrumentele informatice sunt pe larg difuzate și puse la dispoziția unui număr cât mai mare de indivizi umani. Într-adevăr, o e-democrație sau o e-administrație nu vor fi inovații relevante decât dacă un număr foarte mare de cetățeni va avea acces facil la acestea.
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The provisions of Article 320 of the Law No 95/2006 on health reform have raised serious problems of interpretation in judicial practice. The question has therefore been raised as to whether persons who have suffered physical injury may be required to pay their hospital costs of hospitalization and medical treatment in the healthcare facilities concerned, where the author of the injury has not been identified or the injured party does not disclose his identity, or where he is simply not liable for criminal action. The question was also raised as to whether the injured party had failed to make or withdraw his plea or had the parties reconciled or not committed the offense claimed. -
In this paper, the author analyzes the functional competence of the hierarchically superior prosecutor to carry out criminal prosecution acts in criminal files investigated by the criminal investigation bodies whose supervision is exercised by the prosecutor within the prosecutor’s office. For this purpose, a first starting point is the Criminal Procedure Code, which regulates the judicial function of criminal prosecution in criminal trial, respectively the competence of the prosecutor in performing this function, but references are also made to the Internal Regulation of the prosecutor’s offices of 14 November 2019, to the case law of the Constitutional Court of Romania in the matter, but also to the principle of the hierarchical control that governs the activity within the Public Ministry, principle with constitutional rank, regulated by the provisions of Articles 131–132 of the Constitution. The conclusion reached after presenting a pertinent argumentation is that the hierarchically superior prosecutor does not have the functional competence to lead and supervise the activity of the criminal investigation bodies, which is carried out within the criminal files assigned to the subordinated prosecutors, considering his quality of chief prosecutor.
