-
The regulation (Article 225) of the new Criminal Procedure Code is not too different from the one (Article 1491 paragraphs 3–8 and Article 150) of the previous Criminal Procedure Code (1968). Instead, the new criminal processual law does no longer provide for the possibility to settle the proposal of preventive detention, in the absence of the defendant, when the defendant is abroad, as it was stipulated in the previous Criminal Procedure Code. The authors analyze the institution of settlement of the proposal of preventive detention, by presenting some critical issues and by proposing some improvements to the new regulation. -
In this study the author makes an analysis of the institution of waiver of criminal prosecution, including from the perspective of other systems of law, of the conditions provided by law for ordering the waiver of criminal prosecution, as well as of other optional criteria of opportunity, which must be considered when ordering this solution provided by law. Likewise, he formulates some critical remarks referring to the practice of some units of the prosecutor’s office, the author also making some de lege ferenda proposals on some problematic issues.
-
A special normative act [the Government Emergency Ordinance No 109/2011 on the corporate governance of public undertakings (the autonomous regies established by the State or by an administrative-territorial unit, the national firms and companies, the companies in which the State or an administrative-territorial unit is a sole or majority shareholder etc.)] shall also regulate, as an exception, the situation where such a public undertaking is organized as a joint-stock companies with a sole shareholder. Whereas the legal regulation on such companies is incomplete, the author examines, in this study, a series of legal problems generated by the existence and functioning of such companies.
-
The Government Emergency Ordinance No 111/2010 has established in Romania the grant of the leave for raising children (also called parental leave), with the payment of the related allowance. This normative act represents the transposition, in the Romanian legislation, of Directive 2010/18/EU of the Council of 8 March 2010, without, however, also properly supplementing the (Romanian) Labour Code (the Law No 53/2003). Given this situation and also taking into account the relevant creative case-law of the Court of Justice of the European Union, the author makes an analysis of the regulations and of the practice in the field and, retaining some discrepancies, it comes to the conclusion that the provisions of the Emergency Government Ordinance No 111/2010 and of the Labour Code must be interpreted and applied in the light and in accordance with EU legislation and of the case-law of the Court in Luxembourg, the supplementation of the Labour Code being also required, so that the right of the employee to fully benefit by the rest leave, after taking the leave for raising children, be expressly provided in the Romanian legislation, a series of discussions and controversies being thus avoided.
-
This study intends to make a critical analysis of the solution enacted by Article 52 (2) of the Labour Code under three aspects: the holder of the obligation to pay damages, the content, their extent and the period for which they are owed. The solution prescribed by Article 52 (2) of the Labour Code is in conflict with other regulations of the same Code. In relation to the second sentence of Article 52 (1) b) of the Labour Code, the author considers that the holder of the payment obligation must be the Romanian State, for the reasons for which it is also liable in the situations regulated by Article 50 (1) g), Article 52 c1) and Article 61 b) of the Labour Code. The author’s opinion is that the damages are unreasonably limited. Provided that, de lege ferenda, reference would be made to the provisions of Article 540 of the Criminal Procedure Code, one can notice that this text does not cover the same limits and it would allow the compensation of the employee in relation to the real damages produced, both material and moral. As a protective measure, for the duration of the suspension motivated by the indictment for acts incompatible with the position held, the employee should have, ope legis, the quality of insured within the health social insurance system. The author also believes that it should be expressly regulated a period in which the employee must notify the employer both on the cause which can determine the suspension and the reason which requires its cessation.
-
This study deals with the issues related to the regulation included in Article 262 of the new Criminal Code of Romania. The author notes that, as compared to the regulation prior to the entry into force of the new Criminal Code, the taking over in this Code of the norm of incrimination previously included in Article 70 of the Government Emergency Ordinance No 105/2001 on the state border of Romania has been preferred as a reflection of the importance given to the social value of the regime of the state border. At the same time, it is pointed out that the norm in the Code in force is subject to completion by provisions included in other normative acts, inferior to the law, as in the Government Emergency Ordinance No 194/2002 on the regime of foreigners in Romania.
-
This study is meant to analyse the provisions of Article 333 of the Civil Code regarding the preciput clause. Specifically, there are discussed issues such as: the relevant provisions; the definition of the analyzed institution; the subjects, the object and the legal nature of the preciput clause; the legal characters of the preciput; the effects of the preciput clause; inefficiency and enforcement of the preciput.
-
The study is devoted to the analysis of the provisions of Article 304 of the Civil Code referring to the „putative marriage”, a legal institution meant to protect the good faith upon the conclusion of the null or annulled marriage. Unlike other authors, but in agreement with the provisions of Article 304 (1) of the Civil Code, we have also analyzed, together with the condition that at least one of the future spouses act in good faith, the requirement of existence, on the date of conclusion of marriage, of a factual situation which causes the nullity or the annulment thereof. Similarly, because the analysis of the effects of the putative marriage does not present difficulties of interpretation in case both future spouses have acted in good faith upon the conclusion of the marriage, we have focused on the situation in which, on the contrary, one of them acted in good faith and the other acted in bad faith. Finally, we have tried to elucidate the reason which determined the legislator to subject the patrimonial relations between former spouses, including in case that only one of them acted in good faith, to the provisions concerning the divorce and we have grounded a proposal de lege ferenda likely to eliminate the „legal compromise” generated by the current normative solution.
-
This paper aims to analyze the difficulties which the Romanian judge faces, in the attempt to ensure the exigencies imposed by Article 6 of the European Convention on Human Rights in matters of reasonable time. In this regard, the paper is structured in three parts: the first part briefly presents the Court’s standard as regards the reasonable time; the second part analyzes the compatibility of an institution recently introduced in the Civil Procedure Code – the contestation concerning the delay of the trial (Articles 522–526 of the Civil Procedure Code) – to the notion of effective remedy, within the meaning of Article 6 and Article 13 of the Convention; the last part emphasizes, based on some jurisprudential examples, the risks which the national judge must manage very carefully when he tries to ensure the reasonable time: the risk of acting ultra vires and the risk of creating a non-unitary case-law, thus generating the premises of some new violations of Article 6 of the Convention.
-
In principle, the confession is admissible as means of evidence in all the matters for which the civil processual law represents the common law of the procedure and for which there is no separate procedure. Exceptionally, the confession is not admissible: when it is expressly prohibited by law; whether, by admitting it, the imperative provisions of the law would be eluded; if the law requires that certain facts be proved only by certain means of evidence; if, by admitting it, one could reach to total or partial loss of a right which may not be waived or may not be subject to a transaction. The judicial confession shall be given by means of cross-examination, as reflected by Articles 351–358 of the Civil Procedure Code. Obviously, it is a question of provoked judicial confession, whereas the spontaneous judicial confession does not require any prior preparation and, as such, it does not require an express regulation. Instead, the written extrajudicial confession is subject to the regime of proof of evidence through written documents, and the extrajudicial verbal confession may be attested by witnesses, if the law allows the testimonial evidence. The legislator of the new Civil Procedure Code expressly establishes the principle of indivisibility of the judicial confession and, at the same time, he provides an exception from this principle, namely the situation in which the judicial confession contains separate facts not connected between them. In this study there are elaborated the ideas presented above
-
This approach is meant to carry out a brief examination of the control which the judge is required to perform on the acts of disposition of the parties in the civil trial. It refers to the main sides of availability and, especially, to the presentness and imperativeness of such a control. In this context, the author notes that the new Civil Procedure Code has not abdicated from the active role of the judge, this being far from the peak of its „glory”. Likewise, the author analyzes the procedural ways of invalidation of the acts of disposition, first noting the incidental legislative regulation both with regard to the transaction and to the judgment that confirms the agreement of the party. It is noted that, from a normative point of view, the party does not have an option right between the exercise of the action for annulment and the means of recourse against the judicial transaction. At the end of the study, the author analyzes some aspects of the recourse which can be exercised against the acts of divestment and acquiescence to the claims of the applicant.
-
În cazul în care prin acțiunea introductivă promitentul-cumpărător a solicitat numai restituirea avansului achitat în temeiul antecontractului de vânzare-cumpărare și dobânda legală aferentă, nesolicitând și constatarea intervenirii pactului comisoriu expres stipulat de părțile contractante cu consecința repunerii părților în situația anterioară sau rezoluțiunea judiciară a convenției, în temeiul art. 1020–1021 C.civ., este lipsit de fundament juridic demersul său, astfel cum a fost formulat, deoarece numai în caz de desființare a convenției se poate dispune obligarea părții în privința căreia angajamentul nu s-a executat la daune-interese. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 3261 din 24 octombrie 2014) -
Dispozițiile art. 44 alin. (3) C.pr.pen. reglementează un caz de prorogare legală a competenței, în sensul că infracțiunea de favorizare a făptuitorului este de competența instanței care judecă infracțiunea la care aceasta se referă, competența materială a infracțiunii corelative fiind câștigată mai înainte și independent de reunirea cauzelor. În acest context, dacă judecătorul de cameră preliminară care funcționează la judecătorie, fiind sesizat prin rechizitoriu cu judecarea unei infracțiuni de favorizare a făptuitorului – făptuitorul favorizat fiind judecat de către tribunal – verifică și menține măsura preventivă luată în faza urmăririi penale, violează dispozițiile relative la competența materială a instanțelor de judecată prevăzute sub sancțiunea nulității absolute, potrivit art. 281 alin. (1) lit. b) C.pr.pen. (cu notă critică).
-
The article presents the special cases where the defendant benefits from the mitigating effects of the abbreviated procedure, appreciating that they must also be extended in case the application for judgment has been rejected according to the abbreviated procedure, because the defendant did not recognize all the material acts in the indictment or all the deeds described therein, but after performing the judicial investigation the court retains the factual situation recognized by the defendant.
-
The offences regulated by the Law No 31/1990 on companies form a domain relatively less explored by the criminal law specialists and quasi-unexplored by the civil law specialists. In this study, the authors deal with those offences grouped within Article 272 of the above-mentioned law. These offences have a few specific elements. First, assuming there is a legal rule, the active subject is qualified, that is a person holding a certain quality of company member. Secondly, for two of the offences, the assumption of criminal rule is another rule, of the company law, to which the criminal law rule refers. By the fact that there is a situation such as the latter, but also because the assumptions of the other offences provided in Article 272 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, according to the authors, to the criminal matters 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.
-
In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law.
-
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.
-
In this study, the author makes a presentation of the Romanian legislation and case-law, of the European case-law (the European Court of Human Rights), of some regulations of the European legislation, as well as of some provisions of the Constitution of France and of Belgium, all concerning the protection of human dignity and reputation of the individual.
-
The author of this study, starting from the premise that both the employees of public authorities/institutions (who carry on their activity based on an individual labour contract), as well as the civil servants of these budgetary structures (who carry on their activity based on a job relation) have a legal labour relation each, comes to the conclusion that the present jurisdictional system regarding the labour conflicts (the disputes) of the two categories of personnel mentioned (the labour conflicts of the employees of the public authorities/institutions are settled by the labour jurisdiction courts, while the same type of cases, in case of civil servants, fall within the jurisdiction of administrative disputes courts) is obviously unnatural and discriminatory. This being the case, it is proposed the unification of the jurisdiction in this respect, in the sense that both for the employees of the public authorities/institutions and for the civil servants in their service, the competence to settle the labour conflicts is going to pertain to the labour jurisdiction courts.
-
The Romanian Labour Code (the Law No 53/2003, republished on 18 May 2011) provides, in Article 38, that „Employees may not waive the rights recognized to them by law. Any transaction which aims at waiving the rights recognised by law for the employees or at limiting such rights shall be null.” The author starts from the premise that this legal text, which could also be found in the previous Labour Code (Law No 10/1972), should be reconsidered, however, in the light of the social order of today, of the principles and of the requirements of the market economy and of the dynamics of the labour relations and of the labour market. Considering the above, the author formulates, in accordance with the Romanian labour law doctrine as well, a flexible interpretation of Article 38 of the Labour Code, also taking into account a series of texts of the new Romanian Civil Code, which entered into force on 1 October 2011, by rallying, at the same time, to a number of de lege ferenda proposals elaborated in the labour law doctrine over the last years.
-
In this study, the author analyzes the provisions of the Romanian Civil Code (the Law No 287/2009) referring to the matrimonial convention (Articles 329–338 and Articles 366–369). Therefore, there are examined the provisions on: the notion; the principles of the matrimonial convention; the legal characters; the conclusion of the convention – the conditions on the substance and the form of the convention; the date of conclusion and the date from which it produces effects; the caducity, the simulation and the nullity of the matrimonial convention; the object of the convention; the publicity of the convention and its amendment.
-
The study tries to outline the concept of misuse of law as it is regulated in the new Romanian Civil Procedure Code, starting from the regulations of novelty introduced by the new Civil Code. Recognized in the case-law and in the doctrine as a phenomenon inherent to the exercise of the subjective rights, the misuse of law appears better outlined on procedural level, unlike the substantive law, both with regard to its constitutive elements and the conditions in which it can be found and in respect of the sanctions that may appear. Even if the regulation of the new Civil Procedure Code is wider, a series of discussions raise, further on, the issue of misuse of law in the matter of the right of action under the terms of express sanctioning for bringing, in bad faith, an application for summons or for exercising an obviously unfounded judicial remedy.
-
The confession or the recognition has a mixed legal nature; it is primarily a means of evidence, but it also represents an act of disposition of the party that gives the confession. The legislator of the new Civil Procedure Code distinguishes between the probative force of the legal confession and the probative force of the extrajudicial confession, so that, in relation to the provisions of Article 349 (1) and of Article 350 (1) of the mentioned normative act, the two types of confession are no longer on the same level. The extrajudicial confession is left at the discretion of the judge and it may be challenged by the contrary evidence. Instead, the judicial confession is full proof against the person who gave the confession.
-
As subject of public international law, the European Union is committed not only to observe, but also to develop the public international law and, within this framework, it is established the principle of equality between the Member States, within the limits of the treaties of the Union. The institutional structure of this intergovernmental international organization and the procedure of adoption of the legal acts reflect a nuanced equality between the Member States, which however emphasizes the specificity of the Union. „United in diversity”, a motto to which, according to the Declaration No 52 to the Treaty of Lisbon, not all Member States have subscribed, the European Union promotes an enhanced integration and a political cooperation in which the States act in accordance with the Treaties and, in certain cases, for the purpose of supporting the national interest. The transfer of competences from the States to the Union was achieved gradually, with the economic and political evolution at national and international level, pursuant to the state sovereignty. Equality between states within the European Union is a principle whose application in the current European and international context might reflect a new approach of the European integration and positioning of the Member States within the Union.
