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The judicial practice, including that of the Supreme Court, reveals difficulties in applying the sanction of nullity, in particular in case of virtual nullities. In this context, the author shows that it is necessary an applied analysis of the theory of nullity, in order to establish a staging of the judicial approach undertaken for applying this sanction. An interdisciplinary approach for the purpose of establishing the role of the condition of injury in such approach contributes to the avoidance of the confusion of the virtual nullity with the relative one. -
By a thorough critical study of the provisions of the Law No 8/1996 on copyright and neighbouring rights, the author notes that this Law does not provide an explicit definition of the notion of „work” (of intellectual creation). That being so, in this study, after a legal and linguistic analysis, the author gives in advance his own and complete definition of the notion of „work” (of intellectual creation). The following are further examined: the categories of intellectual creations which do not constitute, however, „works” within the meaning of the Law No 8/1996 and, finally, the substantive conditions for the legal protection of „work” (of intellectual creation), concluding that, under the mentioned aspects, it is required the improvement of some wordings and regulations included in the mentioned law. Key words: work (of intellectual creation); legal regulation; definition of the notion; intellectual creations which do not constitute „works” within the meaning of the Romanian legislation; substantive conditions for the legal protection of the „work”.
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The problems of compulsory licences in the matter of patents has received a unitary regulation with the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS Agreement. Likewise, the Doha Declaration (Doha Declaration on the TRIPS Agreement and Public Health) is an important legal reference point because it clarifies a number of practical aspects relating to the compulsory licences in the matter of new medicines both in terms of the production for the domestic market and the import of such products. In the context of the sharp rise in the prices of new medicines, as well as of the constant pressure on the public health insurance budgets, the mechanism of compulsory licences may represent for the patients a new way of access to the new innovative medical therapies. This article discusses the international and European legal framework, with a special focus on the legal regime of compulsory licences in Romania. There are also examined the experiences of other countries in this field, the way of determining the remuneration due to the patent owner, as well as the usefulness of these practices for Romania.
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The article analyzes the changes brought in the matter of approval of the application for enforcement. In the Civil Procedure Code of 1865, the enforcement court had jurisdiction over the approval of the application for enforcement. By the Law No 459/2006, this jurisdiction has been changed and the power to approve the application for enforcement has been recognized to the court executor. By the Decision of the Constitutional Court No 458/2009, this change was declared unconstitutional and it was restored the approval of the application for enforcement by the enforcement court. By the Law No 134/2010, that is the new Civil Procedure Code, it has been preserved the approval of the enforcement by the enforcement court, however, by the Law No 138/2014, it was restored the form declared unconstitutional. Therefore, we have considered as being predictable the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code, by the Decision of the Constitutional Court No 895/2015. Following the Decision of the Constitutional Court No 895/2015, it has been adopted the Government Emergency Ordinance No 1/2016, which reinstated to the jurisdiction of the enforcement court the approval of the enforcement applications. In our opinion, the legal and correct solution is the approval of the enforcement by the enforcement court.
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The regulation (Article 227) of the new Criminal Procedure Code has a partial correspondent in the provisions of Article 146 paragraphs 8 and 111 and Article 1491 paragraphs 9 and 12 of the previous Criminal Procedure Code (1968). The authors analyze the institution of rejection of the proposal of preventive arrest of the defendant during the criminal prosecution, presenting some critical issues and proposing some improvements to the new regulation.
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In this study, the author has chosen to present and to analyze the offence of abandonment of family, provided in Article 378 (1) c) of the Criminal Code, because, with the stabilization of the judicial practice after the entry into force of the Criminal Code, it has been established a new outlook in respect of the approach of the constitutive elements of the offence and a clarification of the controversial aspects with regard to establishing the ill-intention of the offender.
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In this study, the author presents some aspects of the problems of proving with witnesses of the own assets, in the relations between spouses, over three periods of the legislative evolution in Romania: the period from 1 February 1954, when the Family Code entered into force, to 1 October 2011, when the new Civil Code entered into force; the period from the entry into force of the new Civil Code and 15 February 2013 (the date when the new Civil Procedure Code entered into force); the period that began on 15 February 2013, when the new Civil Procedure Code entered into force, a date since when the matter of proving the own assets in the relations between spouses is governed by the new Civil Code and by the new Civil Procedure Code. In this part of the study the author notes that Article 316 of the new Civil Procedure Code contains a wording likely to generate divergent case law concerning the proof with witnesses of the own assets in the relations between spouses. The author argues the opinion that, from 15 February 2013 as well, the proof of the own assets in the relations between spouses can be given by any means of evidence, including the proof with witnesses, which, however, in case of the opposition from one of the spouses, can not be relatives and in-laws in rank prohibited by law. In this context, the author makes a de lege ferenda proposal for the amendment of the content of Article 316 of the new Civil Procedure Code, in order to prevent the emergence of a non-unitary case law. The proposal is to replace the phrase and other family relations with the phrase and other similar family relations.
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The direct action is a means to settle debts, created in order to protect privileged creditors. Thus, such action must be expressly provided by law. With regard to the lease contracts, the new Civil Code brings a new element, regulating the right of the lessor to hold the sub-lessee liable for the payment of the rent or for the failure to enforce the contract. As the right conferred to the lessor represents a new element within the Romanian doctrine, there is a necessity to perform an extended study of the direct action derived of the lease contract. This study tackles a general analysis of the direct action of the lessor against the sub-lessee from the perspective of the new Civil Code. Furthermore, there are references within the text regarding the old stipulation in relation to the new one. Last but not least, there will be constant references to the French doctrine as well as to the de lege ferenda propositions for the amendment of the texts within the new Civil Code.
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Faptul că, în cadrul acțiunii în revendicare promovate anterior intrării în vigoare a Legii nr. 10/2001, pârâții au invocat în apărare prevederile art. 45 alin. (2) din acest act normativ, precum și buna-credință de care ar fi dat dovadă la încheierea contractelor de vânzare-cumpărare, nu reprezenta un argument suficient pentru ca instanța să treacă la analiza fondului acestei apărări, după ce aceeași instanță stabilise că legea, în conținutul căreia se regăsește textul de care se prevalau pârâții, nu are incidență în cauză, având în vedere data promovării acțiunii și opțiunea reclamantei, de a continua judecata în condițiile dreptului comun, aspecte ce relevă caracterul contradictoriu al considerentelor hotărârii atacate, fiind astfel incidente dispozițiile art. 304 pct. 7 C.pr.civ. -
The conditions of appointment of the General Prosecutor and of his deputies have been one of the most disputed topics in the matter of regulation of the status of the Public Ministry. Wishing to give the parties concerned the opportunity to clarify the problem the authors have elaborated a summarizing study on the regulation of this matter in the Member States of the European Union.
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The rule of exclusion remains one of the most controversial issues in the American constitutional doctrine in the field of criminal procedure. The American jurists constantly point out that the rule of exclusion is unique in the field of law, being specific to the American law. However, an increasing number of countries adopt in their legislative system provisions to exclude illegally obtained evidence. This study outlines a few remarks around Article 102 of the Criminal Procedure Code newly introduced in our legislation, trying to bring more clarity on the origin, purpose and ways to invoke the established principle.
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The regulation (Article 226) of the new Criminal Procedure Code has a corresponding regulation in the provisions of Article 1371 paragraph 1 and Article 1491 paragraphs 9–11 of the previous Criminal Procedure Code (1968), with an exception: the duration of the remand on custody will no longer be deducted from the duration of the preventive detention. The authors analyze the institution of admission of the proposal of preventive detention of the defendant during the criminal prosecution, by presenting some critical aspects and by proposing some improvements to the new regulation.
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The offences regulated by the Law No 31/1990 on companies form a domain relatively little explored by the criminal law specialists and quasi-unexplored by the civil law specialists. This study deals with those offences grouped within Article 273. These offences have a few specific elements. First, the active subject of the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, the hypothesis of criminal rule contains elements of company law, which can be found in other articles of the Law No 31/1990. By the fact that the hypotheses of the offences provided in Article 273 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given to the criminal aspects as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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The field „Public Health”, regulated by Article 168 of the Treaty on the Functioning of the European Union, is part of the category of fields of competence shared between the Member States and the Union. The decision to subsidize the price of medicines is the result of several factors: technical, financial and political. For this reason, the Union leaves the decision in this field to the discretion of the Member States but, pursuant to the principle of subsidiarity and proportionality, it tries to standardize certain procedural aspects, meant to ensure the free movement of goods and services. In this respect, it has been adopted Directive 89/105/EEC of the Council of 21 December 1988. In order to ensure a better transposition of this directive, in 2014, Romania has fundamentally changed the normative framework regulating the criteria and the procedures by which new medicines are assessed in order to be introduced on the List including the international common names for medicines for insured persons, with or without personal contribution, based on medical prescription, within the health social insurance system (list of subsidized medicines). For the first time it has been introduced the system of inclusion in the list of subsidized medicines conditioned by the conclusion of cost-volume/cost-volume-outcome type contracts. However, as we will further show, the current Romanian legislation in the field of subsidized medicines does not ensure an effective and integral transposition of the European directive, particularly with regard to the compliance with the imperative time limit for adopting the inclusion/non-inclusion decisions provided in Article 6 (1) of the Directive 89/105/EEC of the Council of 21 December 1988. This study deals with the limits of the current normative framework from a theoretical perspective confirmed by the relevant majority case law in the field.
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Insolvency is a contemporary reality which has spread its branches in more and more areas of the law, but also of the society. With reference to the moment of onset of the economic crisis, in 2008, it can be noticed, from a statistical viewpoint, an increase of the number of companies against which the insolvency procedure has been opened, which are undergoing this procedure with its various stages, a fact which can change our outlook on the effective modalities by which they can continue to participate in the civil relations. In relation to these novelty elements, in this study it is discussed whether companies can continue to participate in commercial life, who will run the business, how will the commercial relations materialize into the sensitive matter of public procurement.
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In this article the author aims to analyze, from a constitutional point of view, the content of Article 21 of the Basic Law. The constitutionalization of free access to justice and the provisions of Article 21 located in the First Chapter of the Second Title of the Basic Law, along with other rules and principles that protect the man-citizen as the primer pin of the governance system and the holder of sovereign political power, as well as exclusive beneficiary, proves thereof the concern of the Constituent Assembly of 1991 in creating the necessary guarantees in regard with the defence of the human rights and liberties in accordance with the general principles of the constitutional democracy and the rule of law as established in the documents of universal human rights, ratified by Romania.
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This study is devoted to a very present topic, namely that of the liability of the State and of the magistrates for the judicial errors produced in the criminal cases or other type of cases. After a brief introduction to the subject, the author makes an analysis of comparative law in the matter subject to examination, pointing out that, in most European countries, the dominant system is that of establishing the liability of the State and of the magistrates for the judicial errors. The author also presents us some of the solutions of the common law system, where the principle is that of impunity of the magistrates for the judicial errors. The author emphasizes that, in our law, the liability of the State is the dominant one and it has the character of an objective liability, founded on the provisions of Article 52 (3) of the Romanian Constitution. There are also analyzed in this article the procedural conditions of the liability of the State for the judicial errors. A special place in this study is devoted to the liability of the magistrates, particularly of the judges, for the judicial errors. It is emphasized, in particular, the subsidiary nature of the liability of the magistrates, as well as the fact that their liability may be engaged only under the subjective conditions specifically determined by the law, respectively in the situations where they have acted in their judicial function in „bad faith” or with „obvious negligence”. The author pleads for maintaining this solution in the future as well, the only one that, in his opinion, is meant to achieve the necessary balance between the independence of the judge and the necessary social and legal responsibility. At the end of the study there are also formulated some legislative proposals, such as those relating to setting some common time limits in civil and criminal matters, to establishing the obligation of the State to exercise the action for regress, to the professional liability insurance of magistrates etc.
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In the new Criminal Procedure Code, the function for verification the sending to trial legality is conducted by a judicial body independent of the Court, the judge for preliminary chamber. In the preliminary chamber procedure, the judge checks the regularity of the referral, the legality of the administration of evidence and of prosecution acts, as well as the jurisdiction of the Court. The Criminal Procedure Code does not provide expressly the type of the act by which the Prosecutor can remedy the deficiencies of the referral. The jurisprudence is not unitary, sometimes recognizing, sometimes penalizing the remedy of the deficiencies of the indictment through different types of procedural acts. The article achieves analysis of doctrine with regard to this issue. The authors motivate the solution that preserves the unity of the sending to Court act, respectively the remake of the indictment. Consequences of the types of solutions adopted in practice are explored from the perspective of the right to defence of the accused person.
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The new Fiscal Procedure Code, approved by the Law No 207/2015, in force starting from 1 January 2016, through the transposition of some European acts into our domestic law, has brought significant mutations in matters of administrative and fiscal disputes as well. In the ambience of the new normative framework regulated by the Law No 207/2015 on the Fiscal Procedure Code, this study aims at analyzing a few aspects less regulated by the new normative framework and which could create controversies both in the application of the new normative framework by the public tax authorities and by the administrative disputes courts entrusted with the settlement of some litigations in matters of administrative and fiscal disputes. Starting from this desideratum, the study analyzes the categories of judgments pronounced by the administrative courts in matters of fiscal and administrative disputes, as well as the procedure for their enforcement, in relation to each category of judgments pronounced in this matter. There are also analyzed within this study the problems of suspension of the enforcement and of the contestation against enforcement in matters of administrative and fiscal disputes.
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This study is devoted to some critical appreciations in connection with the use, in a relatively recent specialty paper, of some „practicist expressions” in order to designate the territorial jurisdiction of the court of first instance to settle the divorce applications („court of first instance having jurisdiction over the place of residence of the defendant”, „court of first instance having jurisdiction over the place of residence of the applicant” etc.). Likewise, our analysis also concerns the conclusions drawn within the same paper in connection with the concurrence between the territorial jurisdiction theses regulated by Article 3 (1) a) and those provided by letter b) of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
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This article presents the provisions of the new Civil Procedure Code whose entry into force has been postponed again, by a recent normative act. These provisions refer to: the investigation of the trial, the preliminary procedure before the appeal and recourse court, the judgments which can not be challenged by recourse and the composition of the panel of judges for pronouncing a preliminary judgment by the Supreme Court. In a criticizable manner, in the author’s opinion, the legislator has prorogued the entry into force of these provisions, initially for 1 January 2016, and then for 1 January 2017. The conclusion of the study is that the legislator should have allocated material and human resources necessary in order to create all the conditions for a full entry into force of the new Civil Procedure Code from the beginning (15 February 2013), not a partial one, being required successively (for the texts not entered into force ab initio) two postponements (1 January 2016 and then 1 January 2017).
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Clauza de dezicere inserată într-un antecontract de vânzare-cumpărare, prin care s-a prevăzut posibilitatea de răzgândire a promitentei-vânzătoare din motive subiective, rămâne fără efecte în situația decesului acesteia, neputând fi invocată de moștenitori. Și aceasta întrucât dreptul astfel prevăzut în favoarea promitenteivânzătoare are un caracter strict personal, iar datorită acestei caracteristici acest drept este incesibil, adică netransmisibil moștenitorilor, putând fi exercitat numai de către titular. -
In this study, the author presents a constitutional reform on the Hungarian Constitutional Court, in the sense of extending its substantive jurisdiction, which entered into force at the beginning of the year 2012. Indeed, the mentioned reform preserves the classic system of the constitutional courts, but it receives an additional jurisdiction, i.e.: after a judgment has become final, either party may address to the Constitutional Court if the decision made is contrary to a fundamental right established by the Constitution. This way, concludes the author, the Constitutional Court is elevated at the level of a centre of the state power, an independent branch thereof which, in a certain sense, conducts a control on all branches of the state power.
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According to Article 172 (12) of the Criminal Procedure Code „After the finalisation of the fact-finding report, whenever the judicial body considers necessary the opinion of an expert or whenever the conclusions of the fact-finding report are contested, an expertise shall be ordered to be made.” This legal text is not correlated with the rest of the provisions of the Criminal Procedure Code in force, nor with the other provisions of the previous codes, therefore, in the author’s opinion, this fact is likely to give rise to controversies. In a different line of ideas, the author argues that the legislator imposes as processual remedy that upon the finalization of the fact-finding report, in case its conclusions are only contested, to order an expertise to be conducted. This hypothesis is even more questionable as there is the possibility that the judicial body appreciates that the opinion of such an expert is not necessary. Thus, the legislator acts instead of the place of the judicial body in deciding on the admissibility of such means of evidence. Starting from such an inadvertence, in a given case, although the judicial body has concluded on the lack of utility and conclusiveness of an expertise, taking into account that one of the subjects to the trial, a defendant in this case, has contested the conclusions of some previous technical-scientific reports and even of an initial expertise report, both the prosecutor, during the phase of criminal prosecution, and the judge, during the phase of trial, had to admit, according to the text of the law, the contestation or the application of that subject to the trial respectively and thus to order an expertise to be conducted. The author believes that the mentioned text provision is also contrary to the contents of several normative acts that provide the independence of the judge and of the prosecutor in the activity of criminal investigation and in the phase of trial, as well as their exclusive competence to decide on the processual acts and measures, as the case is undergoing the phase of criminal prosecution, of preliminary chamber or of trial. Moreover, in support of the opinions which the author has expressed in this article, he also brings arguments of comparative law, showing that the analysis made has not identified legislations or points of view from other countries, convergent with the text of Article 172 (12) of the Criminal Procedure Code. In conclusion, for the reasons shown within this article, the author appreciates that it is required a reconsideration and reformulation of the text of Article 172 (12) of the Criminal Procedure Code from the legislator.
