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The article addresses in a systematized manner some of the most important problems raised in the administrative practice and, implicitly, in the case law of the administrative disputes courts by the traditional triad concerning the cessation of producing of legal effects by the administrative acts, namely the nullity, revocation and inexistence. There are briefly reviewed aspects concerning terminology, doctrinal definitions, the relative nullity – absolute nullity distinction in the administrative law, the legality – opportunity correlation from the perspective of the control of administrative acts, the authorities competent to establish the nullity, revocation or inexistence of an administrative act. The complex issue of the legal effects of finding the nullity, the revocation or inexistence of administrative acts, but also of the repeal that can intervene only in case of normative administrative acts is examined by reference to some of the relevant solutions of the administrative case law. A newly raised issue, due to the incidence of the administrative law, briefly aims at the position of prosecutor of case or of judge in relation to an administrative act with incidence in a criminal case. -
Curtea Constituțională a fost sesizată cu excepția de neconstituționalitate ridicată de un număr mare de funcționari publici trimiși în judecată pentru săvârșirea infracțiunii de abuz în serviciu, care a fost reglementată de art. 246 din Codul penal din 19691, având conținutul „Fapta funcționarului public, care, în exercițiul atribuțiilor 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”, precum și de art. 297 alin. (1) din Codul penal în vigoare, adoptat în anul 2009, potrivit căruia „Fapta funcționarului public care, în exercitarea atribuțiilor de serviciu, nu îndeplinește un act sau îl îndeplinește în mod defectuos și prin aceasta cauzează o pagubă ori o vătămare a drepturilor sau intereselor legitime ale unei persoane fizice sau ale unei persoane juridice se pedepsește cu închisoare de la 2 la 7 ani și interzicerea exercitării dreptului de a ocupa o funcție publică.” -
The field of contractual freedom has raised a permanent interest and continues to cause numerous discussions in the doctrine, and the practice of the courts emphasizes the importance of applying this principle to the specific civil legal relations. The undeniable importance of the contract as source of law involves inclusively the investigation of the manner in which the good faith and the abuse of right influence not only the formation, but also the performance or cessation of the contractual legal relations. -
The law has, undoubtedly, the properties of a fluid. Firstly, the property to shape into the forms they come into contact: the social realities are the ones that should configure it, as François Gény once said, so that their slower or more sudden changing would automatically determine mostly imperceptible, and in some cases, convulsive changes of the legal phenomenon as well. Law is a far too important phenomenon to not be subjected to studying day by day. However, a careful analysis of law has always imposed its division, primarily for teaching, theoretical purposes, but not without having in view the practical consequences as well. Traditional or innovative, classic or revolutionary, this „slicing” into divisions, branches and legal institutions, has undergone, in its turn, plenty of changes over time, being in a state of perpetual remodeling (and remodulation). In the following lines we propose some ideas, with no greater claim than that of presenting a personal opinion, about this phenomenon of division, firstly, and of fusion, secondly, a phenomenon that repeats itself cyclically, as, ultimately, the law also contains in itself a significant dose of history. -
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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In the same way as the institutional decision-making system of the European Union (the European Commission, the Council, the European Parliament) participating in the unional legislative mechanism (the procedures of adoption of the derived legislation of the European Union) has undergone, in an evolutive sense, permanent changes of reformatory nature, in favour of some elements specific to bicameralism (the Council – the European Parliament; the European Parliament – the Council), within the institutions that make up the jurisdictional system of the European Union we are also witnessing the same permanence of the concerns for institutional reform placed in the structural-organizational plan, but also in the one of the competences ratione materiae, ratione personae. All these occurred and still occur in close relation to the process of enlargement of the European Union, as well as to the multiplication of the areas which fall under the exclusive competences of the European Union and of those shared between the European Union and the Member States, correlated with the principles of subsidiarity, proportionality, conferral and loyal cooperation.
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The meanings of the principle of proportionality are identified in the case law and in the legal doctrine during the modern and contemporary period, emphasizing the idea of continuity in understanding this principle. The main connotations of this principle, found in the doctrine, are expressed by the ideas of fairness, balance, adequate ratio, reasonableness, equity, but also in logical plan, by the dialectic reasoning of proportionality. The analysis of case law and of doctrine reveals the importance of this principle, whose purpose is to materialize the legal standard, to substantiate the concept of legitimacy in law and to serve as a key criterion that allows the demarcation between the legitimate manifestations of the state power and, on the other hand, the excess of power in the activity of the state authorities. The only regulations of the Romanian Constitution which specifically refer to the principle of proportionality are included in Article 53, with the marginal title „Restriction of the exercise of some rights and freedoms”. In this study, by using different ways of legal interpretation, we also identify other constitutional rules which involve this principle. -
At the beginning of this study, the author makes an exposition of the economic and contractual environment whose needs have determined the necessity of recognition by the legal doctrine and by the case law and then the legislative consecration of the existence of a general obligation of pre-contractual information as duty of the participants in the civil circuit. The legal basis for this obligation has been found and discovered, by way of interpretation, in the texts of the Civil Code that establish the principle of good faith in the negotiation, conclusion and execution of contracts. The author also points out that there are numerous provisions mostly in the legislation connected to the Civil Code, which pertains to the consumption law, where there are regulated specifically and in detail various obligations of pre-contractual information, in the matter of contracts concluded between professionals and consumers. In this context, it is also established the existence in the special legislation of what the legal doctrine calls „informative formalism”, which means that upon the conclusion of some contracts, where the law expressly provides so, the information which the professionals are required to provide to the contractual partners must take a certain form, which most often is the written form; the failure to comply with the requirements of informative formalism can lead to various sanctions, some of them administrative or contraventional and others of private law. The study concludes with an overview on the private law sanctions which can intervene in case of failure to perform or of the improper performance of the general obligation of pre-contractual information. -
The civil liability of judges and prosecutors for damages caused by torts related to their professional duties is a subject of actuality much debated by legal professionals, the media and the civil society as a whole. Problems such as judicial errors, arrest followed by exculpatory decisions, controls and other forms of discriminatory police abuse performed sometimes at the request of prosecutors are just some of the examples observed by many contemporary societies as dangers for the human rights and liberties. The constitutions, laws and case law provide for answers to the questions in connection with the tort liability of judges and prosecutors. Latest, it becomes visible worldwide a certain way of thinking which advocates for more restrictive rules regarding the subject. This phenomenon is noticeable not only in Romania but also in other countries, such as the United States and France. The paper proposes a synthesis of the constitutional, legal framework and case law in the United States of America, with a special focus on the Supreme Court of Justice cases regarding the civil liability of judges and prosecutors. Since the notions of absolute immunity and qualified immunity in this context are quite unknown to the Romanian legal readers, this paper should add some value to their knowledge of the way of thinking the relation between independence versus accountability of the judiciary specific to the legal traditions of the U.S. From the perspective of the U.S. case law, the paper presents some of the most relevant cases of the Supreme Court of Justice such as: Stump v. Sparkman, Griffith v. Slinkard, Yaselli v. Goff, Imbler v. Pachtman, Burns v. Reed and Buckley v. Fitzsimmons. Although quite old some of them, the majority of the conclusions resulted from this case law are still valid today, with nuances, mainly in the area of the qualified immunity for prosecutors.
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The dilemma on the bicameralism or unicameralism of the EC/EU legislator has existed for a long time. Not a few times, given the name of Parliament, operating with relative similarities regarding the states as subjects of international law, it was considered that it was and remained the legislature of the EC/EU. Over time, primary law and practice were likely to clarify things. Thus, at the beginnings of the Community construction, the Council acted as genuine supreme legislator, which had been gradually joined, as an institution of political control, consultation, cooperation and co-decision, by the European Parliament, so that currently the two institutions are equally involved in the legislative process of a two-chamber system. -
The relationship between the constitutional norms and the European Union law is interpreted differently, as there are several doctrinal conceptions and different case law solutions. A trend of thought affirms the supremacy of the Constitution, including over the European Union law, even though it accepts the priority of application of the latter, in its binding rules, over all the other rules of domestic law, and other trend affirms the priority of the unconditional application of all the provisions of the European Union law over all the norms of the domestic law, including over the constitutional norms. There are European constitutional jurisdictions which have established that they have the competence to conduct the control over the constitutionality of the European Union law, integrated into the domestic legal order, by virtue of the principle of supremacy of the Basic Law. In this study we analyze the interferences between the principle of priority of the European Union law and the principle of supremacy of the Constitution with reference to the doctrine and the relevant case law in the matter. Key words: principle of priority of the European Union law; principle of supremacy of the Constitution; obligativity of the legal norms of the European Union; control of the constitutionality of the legal acts of the European Union integrated into the domestic law; compliance of the domestic law with the European Union law. -
The jurists naturally privilege the continuity, stability, coherence. If the political tends to periodically break the coherence of the social structures, the jurists conceive themselves as „doctors” thereof, and „their technique is precisely the extirpation of the void, the anticipation of the crises, the assurance of the continuity, or even the mending, after the stroke, of the ruptures of the institutional weave”1. The legal privileging of the continuity of the social evolution is translated by the structuring of the system on the basis of some principles aimed at attenuating the tendencies of radicalization of the social claims in the name of the prevalence of a certain conception about the good society over its alternatives. It is fundamental for the jurists that the law ensures the priority of the protection of freedom through the mechanisms of the rule of law over the general interest resulted from the democratic exercise of power. The law based on this vision can not be the result of a general transcendent interest over the interests of the members of the society, but must be the result of the accessibility and availability thereof. -
On number of occasions, the Constitutional Court is in the position to determine whether a norm is constitutional or not, referring to the provisions of Article 1 (5) of the Constitution, republished version. In order to comply with the provisions of this article, it is necessary for the law, the obedience of which is required by the very first article of the Basic Law, to be clear, precise and predictable. There are numerous decisions of the Constitutional Court which state that the law is devoid of „quality”, i.e. the law is not clear, precise and predictable. The non-compliance of these requirements results in a violation of the provisions of Article 6 (1) of the Law No 24/2000 on normative technical norms for the drafting of normative acts, republished, subsequently amended and supplemented, according to which the draft of the normative act must establish necessary, sufficient and possible rules leading to the greatest legal stability and efficiency. Thus, whenever the legislator uses notions whose legal nature is uncertain or do not integrate from the conceptual point of view into the normative system, or when the legislator resorts to the use of innovative concepts in the normative acts and does not define them in their very content, the Constitutional Court will have all the reasons to establish that the provisions of Article 1 (5) of the Constitution are violated, the text being inadequately drafted.
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The offence of favouring of the perpetrator has evolved along the successive regulations in terms of area of incrimination, both with reference to the criminal activities incriminated, but also with reference to the favoured persons. According to the new provisions of criminal law, it is incriminated under this name the favouring of any person who has committed a deed provided by the criminal law, which does not necessarily have to meet the requirements in order to be considered an offence, and it is also incriminated only personal favouring, not the real one, consisting of the aid given in order to ensure the product of the offence for the perpetrator. The offence of favouring the perpetrator has an autonomous nature in relation to the offence committed by the favoured person and has a subsidiary nature in relation to other offences, the aid given to a perpetrator receiving the qualification of favouring only when other legal provisions do not incriminate special assumptions of favouring.
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The legal report between the commercial company and the administrator is a report of mandate. The administrator mandate can be with representation or without representation and has contractual content and also legal one. The powers of the administrator of the company include two elements: the power to fulfil management abilities; the power to represent if it was expressly granted. The power to represent is distinct from the power of administration and exists only if it has been conferred. The representation of the company by the administrator is exercised differently depending on the type of company. For concluding the dispositions, the company’s administrator does not need a special power of attorney in the authentic form for this purpose. When the acts concluded by the representatives of the company are done with the overcoming of its object, they are the duty of the company except in the cases when the third parties knew or should have known the overcoming of the object or when the acts of the same are concluded by exceeding the limits of the powers of the respective bodies. -
The purpose of imposing the criminal processual sanctions is to respect the principle of legality that governs the criminal trial. The principle of legality, established in Article 2 of the Criminal Procedure Code, is the fundamental principle of the criminal trial according to which the conduct of the entire criminal trial, namely in all its phases (criminal prosecution, preliminary chamber, judgment, enforcement phase), takes place strictly according to the provisions stipulated by the law. The effects of this principle are materialized in a series of processual guarantees, one of the most powerful guarantees of the fulfilment of the processual and procedural acts according to the legal rules being precisely the processual sanctions. The problems which arise in the practice in connection with the application and interpretation of the regulations incidental in the matter of criminal processual sanctions have led us to proceed to the elaboration of this study. -
This paper is a plea for adopting the legal conception on the notion of result of the offence. It points out both the shortcomings of the formal conception, which dominates the current theory on the result of the offence, as well as the shortcomings of the old naturalistic conception, which is still preserved today, being supported by the highly questionable theory of the civil tort liability. -
The institution of preventive arrest is regulated by the new Criminal Procedure Code in Article 223 and the following, representing the hardest preventive measure that can be taken against the defendant in the criminal prosecution phase, in the preliminary chamber phase or in the trial phase. As it is normal, the institutions referred to in the Criminal Procedure Code appear to be very strictly and concisely regulated, but even so, there may be problems in the practice of the courts and of the public prosecutor’s offices that function next to them, with regard to the interpretation of the rules. The measure of preventive arrest is the harshest of the preventive measures, because it completely deprives of liberty the defendant accused of committing an offence. In relation to the cases in which the measure of preventive arrest may be ordered and the conditions to be satisfied for taking this measure, the practice is not always unitary. If most of the cases expressly provided in the Criminal Procedure Code in which this measure may be ordered do not pose problems of interpretation, their applicability being strict and commonly understood by practitioners, some cases, also expressly provided, bring to light a series of profound legislative matters that will have to be solved, in the future, by means of the legislator’s action of amendment and supplementation of the provisions in the matter or by means of interpretation of these provisions by the High Court of Cassation and Justice in order to unify the judicial practice.
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In consequence of Romania’s accession to the European Union, in recent years there have been adopted a series of laws (the Law No 315/2005 and the Law No 17/2014 and others) which establish a series of new legal provisions with reference to the acquisition, in Romania, of the right to private property and its subdivisions over land by the foreign citizens and by the stateless persons. In this study, the author makes an interesting analysis of these new Romanian legal establishments, to which it is also added the Regulation (EU) No 650/2012 of the European Parliament and of the Council (entered into force on 17 August 2015) on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of successions and on the creation of a European Certificate of Succession. -
The new Civil Procedure Code establishes the penalties for each day of delay as indirect means of coercion meant to ensure the performance in kind of the obligations to do or not to do which can not be carried out by someone else other than the debtor. The application of these penalties is mainly carried out at the level of the executional procedural law, being conditioned by the initiation of the enforcement and by the existence of a writ of execution, however the legislator, by the law implementing the new Code, tends to generalize the system of penalties to the detriment of the other legal means with similar function. In this context and under the terms of removal of the comminatory damages and of the civil fines for each day of delay, regulated by the provisions of substantive law contained in special laws, it is raised the question of admissibility of the general use of penalties regulated by the Civil Procedure Code at the level of substantive law, before obtaining a writ of execution.
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This study includes a critical analysis of the provisions of the new Criminal Procedure Code which provide the producing of proof by expertise in case the technical-scientific fact-finding report is contested. The author has in view the wording of the legal text, which he considers as defective, thus allowing different interpretations. The essence of the discussion is related to the mandatory nature or, on the contrary, to the optional nature of producing the proof of expertise in the mentioned hypothesis.
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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. -
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.
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In this study the author gives an overview of the facts of unlawful fell down and theft of trees, of their incrimination as offences or contraventions, analyzing afterwards the incidence of the case law of the European Court of Human Rights in this matter, the study ending in some de lege ferenda proposals and best-practice proposals on problematic aspects in this matter.
