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Aspecte introductive. Dispozițiile legale vizate direct de conținutul Deciziei Curții Constituționale nr. 405/20161 sunt art. 246 din Codul penal anterior și art. 297 din Codul penal în vigoare. Conform art. 246 din Codul penal din 1969: „Fapta funcționarului public, care, în exercițiul atribuțiilor sale de serviciu, cu știință, nu îndeplinește un act ori îl îndeplinește în mod defectuos și prin aceasta cauzează o vătămare intereselor legale ale unei persoane se pedepsește cu închisoare de la 6 luni la 3 ani.” -
The enactment and coming into force of Law no. 221/2009 on political convictions and their related administrative measures, ruled during the period 6 March 1945-22 December 1989, generated a complex legal matter caused, in particular, by the lawmaker’s notion regarding the scope of application of the law, the scope of the persons benefiting of the special regulation and the stipulated civil procedural rules, derogatory from common law. From the perspective of the three ideas mentioned, the study aims at harmonizing the legal mechanism designed by the lawmaker, including through “de lege ferenda” proposals, for the purpose of achieving the deeply reparatory nature of the law towards persons oppressed for political reasons, during the communist period. -
The group of economic interest is created as a partnership between two or more physical or juridical persons and its aim is to facilitate or to develop the economic activity of its members or to improve the results of their activity, on a determinated period. The group of economic interest was first created in French Law and it was created as an intermediar structure between a trading company and an association. The organisation and the function of a group of economic interest is increased on his members’ will. The idea of creating a group of economic interest was determined/born out of the necessity to provide a judicial instrument what attenuates the formalism of a trading company, but also removes the disadvantages of an associatioan regarded to the lock of juridical personality. The trading companies implied in such a group maintain their administrative and functional authonomy and their own identity as a juridical person. The European Group of Economic Interest is a legal person which aims, exclusively, the cross-border economic cooperation between European Union member states. The European Group of Economic Interest is, generally, a legal person (except for some member states like Italy, Austria or Germany). The acknowledgement of this statute helps realizing the group’objectives (the development of the member’s activities). In all states, a group has the capacity, in his own name, to have the any kind of rights and obligations. A group can conclude a contract or any other legal act, can take part in lawsuite, accordingly to European Law. The areas that are not mentioned by the stipulations of the european Council’s Regulation are regulated by the competition and intellectual property national law. The European Group of Economic Interest, at least theoretically, proves to be a flexible legal instrument, first of all, because it adapts to the different needs of its members. First of all a European Group of Economic Interest offers for its members the possibility to unite their forces and resources in order to obtain better economic results together. Its advantage stands in the flexibile organisation and function and in the fact that it does not necessary require a registered capital. -
The group of economic interest is created as a partnership between two or more physical or juridical persons and its aim is to facilitate or to develop the economic activity of its members or to improve the results of their activity, on a determinated period. The group of economic interest was first created in French Law and it was created as an intermediar structure between a trading company and an association. The organisation and the function of a group of economic interest is increased on his members’ will. The idea of creating a group of economic interest was determined/born out of the necessity to provide a judicial instrument what attenuates the formalism of a trading company, but also removes the disadvantages of an associatioan regarded to the lock of juridical personality. The trading companies implied in such a group maintain their administrative and functional authonomy and their own identity as a juridical person. The European Group of Economic Interest is a legal person which aims, exclusively, the cross-border economic cooperation between European Union member states. The European Group of Economic Interest is, generally, a legal person (except for some member states like Italy, Austria or Germany). The acknowledgement of this statute helps realizing the group’objectives (the development of the member’s activities). In all states, a group has the capacity, in his own name, to have the any kind of rights and obligations. A group can conclude a contract or any other legal act, can take part in lawsuite, accordingly to European Law. The areas that are not mentioned by the stipulations of the european Council’s Regulation are regulated by the competition and intellectual property national law. The European Group of Economic Interest, at least theoretically, proves to be a flexible legal instrument, first of all, because it adapts to the different needs of its members. First of all a European Group of Economic Interest offers for its members the possibility to unite their forces and resources in order to obtain better economic results together. Its advantage stands in the flexibile organisation and function and in the fact that it does not necessary require a registered capital. -
Divorce requires a continuous monitoring of the quality of adults-children relationships, as well as the development of some emotional connections based on authenticity, availability, respect, safety and warmth. In order to resolve the misunderstandings between parents regarding the exercise of rights and the fulfilment of duties, the court asks the delegate of the guardianship authority to conduct a psychosocial inquiry with regard to the conditions in which a child is raised and educated and how the parents fulfil their duties towards the child. One of the objectives of the psychosocial investigation must be to monitor the dynamics of the relations between the child and the parents after the divorce, because these relations do not have a fixed trajectory, being in a continuous modification and development. In the civil procedural law we do not find a minimum set of norms that regulate the procedure of carrying out the „psychosocial investigation” and the content of the „psychosocial investigation report”, a circumstance that has generated mainly a non-unitary case law, lacking the psychological component. -
The expertise, object of analysis of the present article, constitutes an evidence whose administration is frequently encountered in the judicial practice in civil matters, being imposed in order to clarify some factual circumstances through the specialized contribution of an expert. Thanks to its high degree of precision in determining the factual circumstances of the litigious situation, the expertise is one of the most edifying evidence administered in a trial, being necessary, as such, a thorough knowledge of its legal regime, but also of the issues that envisage the specialization of the expert appointed to carry out the expertise and set its objectives.
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In this study, the author analyzes the ratio of the „data of a personal nature” and „personal data” and he draws up an inventory of the most important qualifications offered so far by the doctrine about the legal nature of these data. Finally, the author concludes that „personal data” are intangible movable assets, then he presents a number of practical consequences of this qualification.
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We mentally associate the first half of the nineteenth century with the affirmation of some ideas and projects of political and administrative reform of the two Romanian principalities connected to the most advanced spirit in Europe of those times. The national common sense watchword was, at that time, the modernization of the principalities in the spirit of the reforms stimulated and encouraged by the French Revolution in the late eighteenth century. Still under the suzerainty of the Ottoman Empire, Moldavia and Walachia were trying to receive European political and legal institutions and to place them into Romanian governance mechanisms, also preparing thereby the formation of a new legal thinking and practice, of a new government mentality, in the spirit of the Western Europe. From this perspective, the author analyzes the origins and the constitutional functions of the Legislative Council, using, for this, some prestigious doctrinal studies published in specialized magazines in the inter-war period of the twentieth century. Likewise, the author analyzes the role of the Legislative Council configured in Article 79 of the Constitution adopted in 1991 and its organic law. -
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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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The succession of the criminal codes has created numerous transitory situations requiring a functional system of principles to be solved. In this context, the courts have provided different solutions to some aspects related to the application of the criminal law in time, thus generating a non-unitary practice. The main cause of these contradictions was represented by the modality of determination of the most favourable criminal law. Just when it seemed that the High Court of Cassation and Justice had clarified the misunderstandings, the Constitutional Court has pronounced the Decision No 265/2014 which completely changes the situation, offering an interpretation that does not find many followers among jurists. -
Based on provisions of art. 20 of the Romanian Constitution, republished, and considering the provisions of art. 5 para. 4 of the Convention on Human Rights and Fundamental Freedoms, the principle of equality of arms and related jurisprudence of the European Court of Human Rights (ECHR), the authors argue that both de lege lata, and in terms of the new Criminal Procedure Code, the detainee is in a position of net disadvantage to the prosecution represented by the prosecutor, since the defendant to whom, on the merits, the request for revocation of preventive detention or its replacement was rejected, it is not given the opportunity to effective remedy. Consequently, the authors make some suggestions de lege ferenda in order to regulate this situation in accordance with the provisions in Constitution and the ECHR jurisprudence. -
This paper aims to address some issues encountered in the control/audit activity that the Romanian Court of Accounts performs on public authorities and institutions, which aims the disputes arising from breaching by them of the provisions of Law no. 544/2001 on free access to public information. The law provides, in art. 22, that the person who considers himself injured in his rights may appeal to the legal administrative department in whose territorial jurisdiction is residing or the authority or public institution is situated, and the court may require the defendant authority to provide the requested information and pay moral and/or property damages. The defendant in this litigation is the territorial administrative unit (village, town, city, county), and the obligation to pay any compensation falls to it. -
Within this article, the author makes an analysis of the main provisions of the Hague Convention of 1985 on the law applicable to trusts and on their recognition. In the context of introducing in the Romanian civil law the legal operation of fiducia, achieved by the provisions of Articles 773–791 of the Civil Code of 2009, Romania’s accession to the Hague Convention would be a natural step that the Romanian legislator should take in the near future. Although some of the provisions of the Hague Convention have been taken, tale quale, within the provisions of private international law relating to the fiducia, the accession to the Hague Convention and its introduction into the Romanian internal law, would lead to expanding the scope of practical application of the legal instrument of the fiducia itself. -
Although the legal doctrine has been less concerned with this subject matter, there are some papers elaborated under the influence of the previous regulations, however, there are quite a few recent papers. In this article, the author makes an analysis of the offences of this special regulation, preferring a classical approach of the subject, the structure being as follows: 1) a brief history of regulations in the field of fishing and aquaculture; 2) the analysis of the offences in terms of constitutive elements, but having in view that some elements are common to all offences, such as, for example, the legal object; these are analyzed by groups, in order to avoid repetition; 3) a few elements of comparative law, by exemplification of some incriminations in the specific legislation of other States. -
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Asociația Internațională de Filosofie a Dreptului și Filosofie Socială (I.V.R.)1 a fost înființată în anul 1909 la Berlin, ca „Asociația Internațională pentru Filosofia Dreptului și Filosofie economică” și redenumită apoi, în 1933, „Asociația Internațională pentru Filosofia Dreptului și Filosofie socială”. I.V.R este cea mai veche, cea mai mare și importantă organizație în domeniul filosofiei dreptului și filosofiei sociale. Reorganizarea I.V.R. pe secțiuni naționale a fost decisă la Viena în 1959. Astăzi, I.V.R. are mai mult de 40 de asociații naționale membre (între care și asociația națională română), cu peste 2000 de membri în întreaga lume. Asociația este înregistrată, în temeiul legislației germane, și are sediul în Wiesbaden. Scopul său principal este de a sprijini și de a promova filosofia juridică și socială la nivel național și internațional. I.V.R. organizează congrese mondiale, la fiecare doi ani. Publicația oficială a I.V.R. este o revistă internațională, Archiv für Rechts-und Sozialphilosophie. -
The Decision of the Constitutional Court of Romania No 405/2016, referring to the plea of unconstitutionality of the provisions of Article 246 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts (hereinafter referred to as „Decision No 405”)1, is not a mere interpretative decision2 whereby, following the admission of a plea of unconstitutionality, it is established that a text of law is constitutional only provided that a certain wording has a certain meaning3. The recitals of the Decision No 405, to which there have been added, shortly after, those included in the Decision No 392/2017, referring to the plea of unconstitutionality of the provisions of Article 248 of the Criminal Code of 1969, of Article 297 (1) of the Criminal Code and of Article 132 of the Law No 78/2000 on preventing, discovering and sanctioning of corruption acts4 (hereinafter referred to as „Decision No 392”), have emphasized the fact that the current rules of incrimination of the deeds of abuse of office, once clarified the meaning of the phrase „defectively fulfils”, still establish a criminal liability that rather acts with priority, and not according to ultima ratio principle, and the constitutive elements of the offence do not meet the standards of drafting of such legal norms identified in the case law of the European Court of Human Rights (hereinafter referred to as „ECHR”), the United Nations Convention against Corruption5, as well as in various reports and positions assumed by the European Union bodies on this subject. For the assumption that these observations of the Constitutional Court would determine the legislator to reflect on the necessity to reconfigure the legal provisions in question, the Court has indicated certain points of reference that should be considered in order to ensure a regulation compatible with the international and European standards mentioned.
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In this study, the author makes an analysis of the provisions of Article 2319 of the new Romanian Civil Code, which entered into force on 1 October 2011, a text according to which „the personal guarantee ceases to exist following the death of the personal guarantor, although there is a contrary stipulation”, in relation to the general rules of principle of the Civil Code regarding the death of a contracting party (the natural person), respectively the cessation of the capacity of use (in case of the legal person). It is mentioned that the solution regulated by Article 2319 of the Romanian Civil Code did not exist in the previous Romanian Civil Code (of 1864), being taken from the Civil Code of the Province of Québec (Canada).
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The present study aims mainly to identify those wordings in Law no. 287/ 2009 on the Civil Code which apply to testamentary inheritance issues that have certain shortcomings, and to find, as much as possible, the best solutions for remediation thereof. -
Law no. 287/2009 on the Civil Code provides the inheritance matter, in general, with an appropriate regulation which is characterized, in principle, by the solutions’ correctness and the flexibility and consistency of its rules. However, here and there, incomplete legal texts can be identified. Equally, one can notice the absence of regulation for certain issues raised abundantly over time by the literature. In this context, the authors of this paper identify the purports of the Civil Code with incidence in the matter of legal heritage which has some shortcomings and propose the legislator to reconsider them to improve thereof. Also, aspects that are not legally regulated are identified with a specific practical frequency.
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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. -
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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The objectives of the research contained in the article consist in the examination of the immunity and of the criminal liability of the Romanian parliamentarians over the time according to the rules of the Romanian law, with a focus on the present provisions. The results of the research shall be summarized to the need for keeping the parliamentarians’ immunity also in the future provisions of the constitutional and criminal law, especially on the absolute immunity regarding the opinions and the votes expressed in exercising the mandate granted by the poll. Likewise, the author considers that a certain partial immunity has to be kept as well, as regards other actions of the criminal procedural law, such as: the inquisition, the detention, the attachment and the arraignment. The paper may be useful to the theoreticians, practitioners, as well as to the constituent legislator, considering the need for the amendment and supplement of the present fundamental law. The value of the article consists in the examination of the constitutional and criminal provisions regarding the criminal liability of the Romanian parliamentarians, as well as in the critical opinions and the filed de lege ferenda proposals. -
In this article, the author proposes to make some theoretical and practical reflections on the definition of the law. Until now, in no law school and no judicial culture system it was formulated a definition of the law, to be accepted as a universal definition. Latin jurists – to whom the entire European judicial civilization is related – have not even been preoccupied with defining the law, but they have left us as legacy several definitions of the law, that is of positive law. The author points out that the scientific concept of law depends on the particularities of the judicial regulation of the social relations, which are different from country to country and from one national judicial system to another. It would be very difficult to formulate a universal definition of the law, given that each people has its own psycho-social characteristics which can not be accommodated with similar characteristics of other peoples. The author considers that in democratic societies, based on the principles of the state of law and which have at the centre of their public policies the individual, through law it is achieved a balance between the power of the state and the autonomy of the individual will. By law it is ensured the respect for the fundamental values of the nation, a democratic government centred on the sovereign will of the nation, as well as the individual rights and freedoms of citizens. In conclusion, the author points out that the law-making process in any state must be legitimate, namely it must express the will and fundamental demands of the citizens, the most general interests of the population. Finally, the author proposes a set of formal requirements-criteria for assessing the laws passed by the Parliament. -
Following the observations submitted to the Court of Justice of the European Union in the Case C-69/14 Târșia1, EUCJ gave, on 6 October 2015, a preliminary ruling, which held that: the Union law, in particular the principles of equivalence and effectiveness, must be interpreted as not precluding, in circumstances such as those in the dispute in the main proceedings, a national court from not having the opportunity to review a final judgment delivered within civil proceedings, in case this judgment proves to be incompatible with an interpretation of the European Union law retained by the Court of Justice of the European Union subsequently to the date on which the mentioned judgment became final, even if there is such a possibility in respect of final judgments incompatible with the European Union law, delivered within some administrative proceedings.
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The following study concerns the causes of inadmissibility in the Romanian constitutional jurisdiction. Thus, after a series of preliminary considerations, the authors examine, in detail, in the light of the case law of the Constitutional Court of Romania, the following: – the causes of inadmissibility regarding the legality of the referral; – the causes of inadmissibility in connection with the authors of the referral; – the causes of inadmissibility referring to the motivation of the referral; – other elements related to the legality of the referral; – the causes of inadmissibility concerning the extent of the control; – the causes of inadmissibility referring to the jurisdiction of the Constitutional Court. -
Causes leading to change of punishment are such conditions, circumstances or contexts which are exterior to the contents of the crime and which outline a higher or lower level of social danger of the deed or of dangerous behavior of the criminal, thus determining a change of punishment, either in terms of quantity (in the form of duration or amount), or in terms of quality (change of one main punishment by another). In these causes, a distinction is made between attenuating and aggravating causes. The attenuating causes category includes attenuating conditions and attenuating circumstances, while the aggravating causes category includes aggravating conditions and aggravating circumstances.
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In this study, the author reviews the issue of pilot cases before the European Court of Human Rights (ECHR praetorian jurisprudence, hardly known), insisting also on the most important pilot cases filed with the Court’s jurisdiction, focusing thereupon on the Romanian Case, related to pilot cases’ new procedure, especially on the subject of property restitution.
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The brief presentation of the appearance and evolution of the case of annulment provided under point 171 of art. 3859 parag. 1 of the Criminal Procedure Code in force, which mentions that the judgments under appeal are subject to annulment, “when the judgment is contrary to the law or when an erroneous application of the law was made by the judgment”, of the issues of unconstitutionality, of the provisions of art. 13 of the Convention for the protection of human rights and fundamental freedoms, of the practice of the European Court of Human Rights represent the arguments of the article for the need and justification of introducing the case of annulment provided under art. 3859 parag. 1 point 172 of the Criminal Procedure Code by the Law on certain measures to accelerate the settlement of trials, which guarantees that jurisdictions can effectively control the legality of the judgment, both in relation to the substantive rules and to the procedure rules, being vested with the prerogative of the possibility to annul the judgment subject to appeal. -
The article aims to review a recent and very controversial decision of the Appellate Division within the International Criminal Tribunal for the former Yugoslavia, dated November 16th, 2012, under which were acquitted two Croatian generals, notorious figures of the civil war in the former Yugoslavia, for several war crimes and crimes against humanity, in a surprising manner since it abolished entirely the decision passed by the Court of First Instance, that had indicted these defendants, and gave special interpretations to a number of institutions of law, in respect of which was already crystalized a constant judicial practice of this Court. -
In the regulation of the new Criminal Procedure Code the recourse in cassation is an extraordinary legal remedy exercised only in cases expressly provided by law and only on grounds of unlawfulness. The recourse in cassation is the extraordinary remedy through which the interested parties or the prosecutor may request the High Court, in the conditions and for the reasons expressly and limitatively provided by law, to reform the final judgements in certain cases provided by law. Practically, the recourse in cassation is designed as an extraordinary legal remedy or otherwise, as a last level of jurisdiction within which the parties can defend their rights, by removing the effects of the final judgments pronounced under the conditions of the five cases of unlawfulness provided by Article 438 of the Criminal Procedure Code and does not involve the examination of all aspects of the case, but only the review of the legality of the contested judgment, respectively its consistency with the provisions of the applicable substantive and procedural law. We intend to present the five cases of recourse in cassation by an extensive examination of the doctrine and practice of the High Court of Cassation and Justice.
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Questioned by an alleged absence of their own method and investigation field, legal science and research are fully legitimised in reality. Legal doctrine research deals with formal sources of law, and results in deduction and explanation of legal rules. Legal scientific research deals with legal rules in force from a formal point of view and refers to the legitimation (delegitimation) of legal rules of substantial law; its method is the deduction of general principles of law as a specific normative subsystem within the social system and the relation of the legal rules to these principles. -
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The Insolvency Code, in Article 65, provides as follows: „(1) The procedure shall be initiated on the basis of an application filed to the tribunal by the debtor, by one or more creditors, or by the persons or institutions expressly provided by the law. (2) The Financial Supervisory Authority files an application against the entities regulated and supervised by it, which, according to the data available to it, satisfy the criteria provided in the special legal provisions for opening the procedure provided by this Law.” As such, it can be said that the scope of the persons to whom it is recognized the right to refer the matter to the court is delimited by the legal provisions, excluding the ex officio referral to the tribunal, contained in the old regulation of the Commercial Code. The Framework-Law shows very clearly that the debtor in insolvency is obliged to submit an application to the tribunal in order to be subject to the provisions of this Law, within maximum 30 days of the occurrence of the state of insolvency, being able to come before the tribunal with such an application also the debtor for whom the occurrence of the state of insolvency is imminent (Article 66), any creditor entitled to request the opening of the procedure provided in this normative act against a debtor presumed to be in insolvency having the right to initiate, in its turn, an introductory application (Article 70). Given that the debtor himself is the most suitable person to know the state of insolvency or the imminent insolvency of his patrimony, it was normal for the legislator to admit that it had an important role in the initiation of the collective procedure. The creditors, not having the right to request the opening of the imminent insolvency procedure, but only for current (presumed) insolvency, could not act before a real and manifest imbalance was produced in the debtor’s patrimony, when the financial difficulties were already revealed by the inability to pay the due obligations.
