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The presentation of the new civil law regulations in our country provides us with the opportunity for introspection in the legislations, case law and doctrine of other countries from which our lawmaker inspired. An example in this respect is the « administration of the property of others » which is an institution taken over from the Civil Code of the Quebec Province, Canada. From this perspective, the authors considered necessary and useful to make a presentation of the evolution and content of the institution in the « Québécois » Civil Code, in the current stage of reform in our country. They mention the civillaw nature of the legal system in this Canadian province and the work of its civil code re-codification, which was completed in 1994. The central subject of the article is the administration of the property of others, with the presentation of the administrator, the beneficiary, the forms of administration, as well as its termination. The authors briefly mention legislative provisions in this field in other countries as well. Moreover, under the analysis regarding the general nature of the regulation regarding the administration of the property of others, the authors also emphasized other provisions of the new Civil Code referring to this institution, such as the investments considered safe, the trust, the guardianship of a minor child, the taking-over of mortgaged property. The authors emphasize the importance of relating to the doctrine and case law belonging to the legislative system from which the new regulations in our Civil Code come and their adjustment to the social-legal life in Romania, taking into consideration its particularities. -
The author carries out a thorough analysis of all the regulations under art. 1381-1395 of the new Civil Code regarding the recovery of damages caused by extra-contractual causes. Thus, in the first part of the study, the author approaches joint liability, in case two or more persons are liable for one and the same damage. Also, a large part of the work deals with the principles governing the right and correlative obligation to recover the damages: the principle of full recovery and the principle of recovery in kind of the damages; both principles are explicitly provided in the texts of art. 1385 and 1386 of the new Civil Code. The central part of the work deals with a review of the recovery of damages by means of a money equivalent, referring in particular to the establishment of compensation for the full repair of personal injuries, both in their material and in their moral form; in the same context, large discussions are presented in relation to the pecuniary recovery of indirect damages. Another special place in the work is held by the presentation of the regulation regarding the correlation between the social security rights of the immediate or the indirect victim and the compensation that may be granted to such victim for recovery of the damages caused. The study ends with a review of the extinctive prescription of the right to claim and obtain in court the recovery of damages under tort liability. -
The legal regime of the penalty clause is established under the purports of Articles 1538-1543 of the new Romanian Civil Code (yet unenforced). Analysis of these regulations is undertaken in the study hereby by putting forward three issues considered defining: the legal nature of the penalty clause, its incidental character and mutability. Taking as reference point the definition of penalty clause set forth in Article 1358 par. (1), it is argued that the Romanian legislature has endorsed dualistic theory, according to which the penalty clause is a civil reparation remedy or a sanctioning repair, for the case of unlawful non-performance of the main contract by the debtor. The incidental character of the penalty clause is explained on account of the dependency relationship that exists between it and the obligation arising out of the main contract. Consequently, in principle, the penalty clause follows the legal destiny of the main obligation, according to the principle accesorium sequitur. To this rule there is but one exception: resolution of the main contract does not affect the existence and enforcement of the penalty clause. In terms of mutability of the penalty clause, it is found that its judicial review is permissible only by way of reductibility, where it is manifestly excessive as compared to the foreseeable damage caused to the creditor through unlawful non-performance of the obligation arising from the main contract. -
The liberty of the person is one of the most important social values, its importance requiring its protection by criminal law rules, in all the states with acknowledged democratic systems. Taking into consideration the content of the offense of deprivation of liberty in the new Criminal Code, the authors made a brief examination of these provisions and carried out a comparative analysis with the current provisions. The comparative analysis refers to the differences existing between the two accusations, differences noted in particular as regards the accusation of aggravated forms of this offense. The authors also carried out a comparative law examination proving that the illegal deprivation of liberty is an action regarded as an offense by all the countries, and that there are many elements of similarity, as well as certain insignificant differences between its content in various legislations. In the conclusions they formulated, the authors proposed the addition of other aggravated forms to the provisions of the new Criminal Code, forms that are in fact provided both in the current Criminal Code and in the legislations of other European Union countries. -
This study analyzes the new regulations of the Romanian Civil Code (Law no. 287/2009, republished on October 1, 2011) regarding compensation for harm caused to the human body. In this sense, the special rules regarding compensation for personal injury in the said Civil Code are discussed, then a definition of such injuries is proposed, the natures of the injuries in question are emphasized, and, finally, the special uses of the full compensation injury principle in the area of personal injuries are pointed out. -
The author conducts a thorough analysis of the legal content regarding the crime of misappropriation of public tenders provided by art. 246 of the new Criminal Code, incrimination ex novo. With reference to the structure of this infringement, the object of criminal protection, the subjects, the objective and subjective aspect, the forms, modalities and sanctions provided by the law are examined in detail. Within the complementary explanations, the connections of the misappropriation of public tenders with other crimes and some procedural aspects are tackled with. Further, the legislative antecedents of this incrimination regulation, the solutions to be followed in case of occurrence of temporary situations and some elements of comparative law are presented. The author does not hesitate to express his opinion as regards the constitutional content of this criminal deed, its systematization and nature and to advance some of his own solutions and ideas related to this aspect. Towards the ending of this analysis several conclusions and proposals de lege ferenda are presented in order to determine an appropriate protection of the values and social relations concerned by this incrimination, an unitary enforcement of the text and implicitly a better performance of the criminal justice within Romania. -
The above study examines specific issues arising from the inheritance regime where the assets of the deceased’s estate include shares, following the death of a limited liability company associate. -
In this study the author makes a comprehensive analysis of cyber crime and how to fight, prevent and investigate this. The analytical approach is based on the definition of cyber crime, of its characteristics, and finally on the identification of the specific means of evidence that are used in the criminal investigations -
This paper presents propter rem obligations in terms of their distinctive characteristics that prevent their inclusion in the classical categories of property rights and obligations. The incidental nature of these obligations is emphasized in relation to the real right on which the prevalence if the intuitu rei nature is grafted in relation to that of intuitu personae and, as a consequence of these, the propter rem obligation perpetuity. The purpose of the propter rem obligation, is to facilitate the operation of real estate that is subject to real right on which is grafted, helps us decipher the accesoriality relation concerning the real right, the transmission mechanism of these obligations, and the abandon as a sanction occurring in case of failure to comply with these obligations. Recourse to abandon is not only the sanction for the non-performance of these obligations, but also the individual having the propter rem obligation, who releases himself from the performance of the obligation in this way. The last part of the paper helps to explain how certain propter rem obligations set forth in the Civil Code or in certain special laws are created and transmitted, which raises questions on the propter rem nature of some of these. -
In terms of the decision not to initiate criminal proceedings, ordered by the Prosecutor during the stage of preliminary documents, it is mandatory to communicate the decision to the prejudiced person, indicter and perpetrator, if known, and the deadline of 20 days for filing the complaint with the Prosecutor’s Office runs from the date of serving the decision. For the people who consider themselves injured as to their legitimate interests by the adoption of the decision not to initiate court proceedings, there is neither the obligation, nor the opportunity for the communication thereof and, in this case, the 20-day deadline for filing the complaint against the decision runs from the date on which the person entitled was informed, in any way, about the adoption of the decision in question. -
This study sets some reference points for a new institution regulated by the Criminal Procedure Code – the judge of rights and freedoms – from a perspective which stresses its role in protecting the rights and fundamental freedoms, as they are established by the Constitution and by the international treaties on human rights to which Romania is a party. -
In the current architecture of the Criminal Procedure Code, the regulation of the special methods of surveillance or investigation is based, from the perspective of the legislative technique, on a unified, foreseeable and predictable approach, eliminating the arbitrary. The special methods of surveillance or investigation are meant to contribute, by their results materialized in proofs, to proving in a direct manner the offences committed by the suspects or/and the defendants. The specificity and concrete particularities of the circumstances of some of the corruption offences, the offences assimilated to the corruption offences, as well as those of drug trafficking, trafficking in weapons, human trafficking, acts of terrorism, cybercrime, expressly enumerated within Article 139 (2) of the Criminal Procedure Code suppose that the probative includes, in a significant proportion, proofs obtained by way of special methods of surveillance or investigation.
