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Dreptul de trecere, reglementat de art. 616–619 din vechiul C.civ., trebuie înțeles sub trei ipostaze: aceea a dreptului de a cere recunoașterea servituții de trecere, ipostaza exercitării servituții legale de trecere și ipostaza dreptului de a cere modificarea servituții legale de trecere. Legat de dreptul de a cere recunoașterea servituții de trecere, acesta este considerat ca având un caracter potestativ, constituind o simplă facultate pentru proprietarul locului înfundat. Prin urmare, atunci când un imobil devine loc înfundat, proprietarul său poate reclama, prin manifestarea sa unilaterală de voință, să îi fie stabilită o servitute legală de trecere. Caracterul potestativ al dreptului rezultă cu claritate din formularea „poate reclama” din art. 616 din vechiul C.civ. (Curtea de Apel Craiova, Secția civilă, Decizia nr. 739 din 9 iulie 2019, www.rolii.ro)
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Potrivit art. 335 alin. (1) C.pr.pen., dacă procurorul ierarhic superior celui care a dispus soluția constată, ulterior, că nu a existat împrejurarea pe care se întemeia clasarea, infirmă ordonanța și dispune redeschiderea urmăririi penale. Dispozițiile art. 317 se aplică în mod corespunzător. Conform art. 280 alin. (2) C.pr.pen., actele îndeplinite ulterior actului care a fost declarat nul sunt la rândul lor lovite de nulitate, atunci când există o legătură directă între acestea și actul declarat nul. Articolul 346 alin. (3) lit. a) C.pr.pen. prevede că judecătorul de cameră preliminară restituie cauza la parchet dacă rechizitoriul este neregulamentar întocmit, iar neregularitatea nu a fost remediată de procuror în termenul prevăzut la art. 345 alin. (3), dacă neregularitatea atrage imposibilitatea stabilirii obiectului sau limitelor judecății (cu notă aprobativă).
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After a summary examination of the mechanisms that develop the unilateral and conventional resolution, the author finds that the specific formalism established by the Civil Code for achieving the objectives of the pacts agreed by the parties is – in some situations – difficult to fulfil, in the context in which the partners do not know or cannot rigorously follow the steps required by the delay procedure. The uncertainties that the mechanism can produce in special conditions are observed and, then, practical solutions are suggested, starting from the premise – generally accepted – that the commission pact is itself a subsequent and accessory convention to the fundamental contract.
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The study tends to discern the essential characters and the legal regime of the administration of the assets of another, which represent a novelty in the landscape of our legal system. After examining the general regulatory framework of this institution and the special one in the matter of guardianship of the minor and of the ad-hoc guardianship, we argued that the obligations of the management bodies of the legal person or of the trading companies should not be reduced to mandate relations concerning legal relations with third parties, because the entire regulation regarding the attributions of these bodies in relation to the patrimony of the legal person or of the company is impregnated by the spirit of the institution of the administration of the assets of another. In approaching the institution, we have analyzed the manner of adoption of the decision-making acts compared to the adoption of the decisions in matters of co-ownership and the measures that the court of law can take in case of the decision-making blockage. With regard to the plurality of administrators, there have been brought to attention the issue of their liability, the exceptions to the solidarity rule, including the liability in case of delegation of attributions. Depending on the powers granted to the administrator by the act of appointment, it has been marked the delimitation between the simple administration and the full administration, with the legal regime related to each form of administration. In another section, there have been examined the common rules of the two forms of administration regarding the separation of patrimonies, the guarantees, the administrator’s liability in the relations with third parties and the beneficiary, in case he acted in his own name or in excess of the proxy, the procedure of exercising the control of the beneficiary on the manner of administration and its efficiency, the ways of cessation of administration and its effects with special outlook on the handover of the administered assets, the expenses deducte d from the administered patrimony, as well as the expenses incumbent on the administrator under the contract of administration.
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The action regulated by Article 1064 of the Civil Procedure Code has a special regime, derogating from the classic situation of tortious civil liability, regulated by Article 1357 of the Civil Code. The practical situation of this action is somewhat uncertain, as there is no unitary judicial practice that decides the legal nature of the action for damages provided by Article 1064 of the Civil Procedure Code. In these conditions, we considered it opportune to analyze the legal nature of the action for damages regulated by Article 1064 of the Civil Procedure Code, in a parallel vision with the provisions of Article 1357 of Civil Code, which regulates tortious civil liability. All this, by reference to those established by a recent court decision resolving such an action for damages. In the present study we tried to offer a perspective and a practical analysis on several situations generated by the application of Article 1064 of Civil Procedure Code.
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By this study we aimed to proceed to a configuration of the notion of „criminal case”, used by the legislator in Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 on the judicial stamp duties, taking into account in our approach in a correlated way, on the one hand, the case law of the Constitutional Court, of the High Court of Cassation and Justice and of the other courts of law, on the other hand, the doctrinal considerations on the mentioned article, and of the institutions with which the notion necessarily interacts. The approached topic has an inter-institutional nature, because it is necessary, for its correct approach, to resort to legal institutions dealt with by the criminal procedural law (the criminal action, the solutions pronounced in a criminal file, the subjects of the criminal proceedings, etc.), but, of course, the civil procedural law (the civil action, the establishment of judicial stamp duties, the cause of the application for summons, etc.). We consider that the present article presents first of all a practical interest, because, in the activity of the courts of law, the interpretation of Article 29 (1) i) of the Government Emergency Ordinance No 80/2013 is divergent and non-unitary, due to an acute lack of terminological unity, and this deficiency can be reflected in an impairment of the quality of the act of justice and, further, in a decrease of the citizen’s trust in justice. The article is structured in two essential parts, the first with a general character that includes the sections „Introductory Considerations”, „Arising the questioning” and „Interpretation Tools”, and the second with a special, applied character, that includes the sections „The situation in which the civil action is exercised separately before the civil court after the criminal file has been solved in the criminal investigation phase by a solution of dismissal or abandonment of the criminal prosecution”, „The situation in which the civil action is exercised separately before the civil court without having ordered a solution within the criminal file” and Conclusions”. It should be emphasized that, in order to formulate the answer to the approached subject, our thought was oriented, first of all, to those for whom the act of justice is done – the citizens –, proposing solutions that in our vision correspond to some requirements of fairness and equality before the law. Likewise the topic subject to discussion was not approached in an exhaustive way, being only the starting point in the debates on this topic that are taking place and, of course, that will further take place. We have tried to prove that there is a „criminal case”, within the meaning of the mentioned text, only when the basis of legal actions, be they civil or criminal, is a deed provided by the criminal law (essence condition) for which the initiation of the criminal action was ordered (condition of nature). Finally, we consider that the variant of the proposed interpretation will also have the effect of discouraging processual or abusive conduct, reflected in the purely formal notification of the criminal prosecution bodies only in order to benefit from an exemption from the payment of the judicial stamp duties before civil courts, which thus diverts the analyzed legal provision from the purpose considered by the legislator at the time of its enactment.
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The increase of the volume of regulations influences the activity of the companies and of the administrators, implying the risk of the latter being liable to the company for legally non-compliant business decisions. Part I of the study examines the legal regime of the obligation of the administrators to comply with the law and the implications of intentionally making business decisions contrary to the law. The conclusion is that the obligation to comply with the law can be seen as an independent obligation or explained through the doctrine ultra vires, but it can also be associated to the obligations of loyalty, good faith and diligence. Part II of the study analyzes whether there are potential exceptions that may justify the making of some legally non-compliant decisions and whether the liability of the administrators could be excluded or limited in certain situations. In principle, the making of profit, the attainment of other interests for the company or the ratification of the decision by the shareholders are not able to justify and exclude the liability of the administrators for making decisions contrary to the law. These decisions also exclude the application of some guarantees against liability, such as business judgment rule, the liability clauses and liability insurance. However, the social, economic and technological transformations accompanied by the inefficient legislation and by the phenomenon of regulatory entrepreneurship can provide sufficiently convincing arguments to change the paradigm in respect of the obligation of compliance. Although the proposed problems and solutions seem obvious, the study raises for discussion some aspects not addressed in the local doctrine, but which do not lack theoretical and practical importance.
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The violation of the rules of criminal law by a natural or legal person produces numerous consequences, both on the environment in which the offender lives and on his personality. Thus, criminal sanctions are applied to him with the purpose of preventing the commission of other deeds prohibited by the criminal law, but also of his re-education. However, the legislator, for reasons of criminal policy, has decided to regulate some situations that lead to saving the offender from the punishment provided by law. Among these situations are also the causes of impunity. The article aims to analyze the terminology used by the legislator in drafting cases of impunity and the repercussions that a misunderstanding thereof can have on the addressee of the criminal norm. For the elaboration of this article, doctrinal sources were used in which there have been defined causes of impunity and the moment in which they intervene, but also solutions found in the mandatory case law.
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The principle of the fairness of the administration of evidence represents the rule that prohibits the use of any strategy or maneuver which has as its object the administration of a piece of evidence in bad faith or which has the effect of provoking an offence to obtain a piece of evidence, if by these means the dignity of the person, his or her rights to a fair trial or privacy or professional secrecy are infringed. The object of the present study is only the examination of the last of the aspects of the principle of loyalty, as it is regulated by the Criminal Procedure Code, respectively „the entrapment to commit a crime”. We do not intend to make a detailed presentation of the jurisprudence of the European Court in this matter, but only to point out the general principles that should underlie the analysis to be carried out by the judiciary and to exemplify some solutions in judicial practice. Finally, we will try to draw attention to the delimitation between „entrapment to commit a crime” and „entrapment to evidence” and to establish exactly what is the procedural framework in which these aspects can be invoked.
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The authors discuss a guideline given to the prosecutor’s offices through a Minutes of non-unitary practice concluded on 30.07.2020. The guideline refers to the way in which the legal classification must be made, in case of committing the deeds provided by Articles 2 and 3 of the Law No 143/2000 on preventing and combating illicit drug trafficking and consumption, in reference to the Decision No 3/2017 of the High Court of Cassation and Justice, in the case of international drug trafficking, when the act of bringing into or taking out from the country without right is committed in different circumstances of place and time. The authors, analyzing the given guideline, conclude that it is unrealistic.
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Trafficking in human beings is an offence against human dignity and fundamental freedoms and, therefore, a serious violation of human rights. The Group of Experts on Action against Trafficking in Human Beings (GRETA) emphasizes the state’s obligations to respect, fulfil and protect human rights. Such protection includes measures for the proper identification of all victims of trafficking in human beings. It also involves measures to strengthen the rights of trafficked persons, strengthen through appropriate protection, assistance and remedies, including recovery and rehabilitation, which are non-discriminatory regardless of their residence status. By virtue of this fact, in this article we pursue the following objectives: identification of the mechanism for protecting the victims of trafficking in human beings in terms of national and international regulations; knowledge of national and international legal provisions in the field of criminalization of trafficking in human beings; continuous adaptation of investigators to new challenges related to preventing and combating trafficking in human beings; exposing the general and special conditions of hearing the victims of the offences of trafficking in human beings. All these are able to improve the efficiency of the activity of hearing the victims of the offences of trafficking in human beings.
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Faptul că în cuprinsul art. 6 și art. 7 din Legea nr. 193/2000 1 legiuitorul a reglementat efectele constatării caracterului abuziv al clauzelor contractuale, fie în sensul derulării în continuare a contractelor după anularea parțială a acestora, fie în sensul rezilierii, cu posibilitatea stabilirii răspunderii în forma daunelor-interese, nu poate fi considerat a semnifica inaplicabilitatea dispozițiilor Legii nr. 193/2000 contractelor ce nu se mai află în executare, urmare a rambursării anticipate. Nu este relevantă, sub aspectul aplicării Legii nr. 193/2000, împrejurarea că la data formulării acțiunii în constatarea nulității absolute a unor clauze contractuale contractele încheiate cu banca încetaseră, ca urmare a rambursării anticipate a creditelor, deoarece, în raport cu efectele sancțiunii nulității absolute, caracterul abuziv al unor clauze poate fi invocat oricând, iar nu doar în privința unui contract în derulare (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 1987/2020, în „Buletinul jurisprudenței 2020”, p. 355 și urm.)
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Cum debitorul obligației de întreținere a executat în natură obligația, nu mai există temei pentru care el să fie ținut, ca pentru aceeași perioadă, să execute și prin plata sumei de bani stabilite prin hotărârea judecătorească, situație care se menține până când s-ar pune în executare hotărârea judecătorească prin care domiciliul minorei este stabilit la mamă, dată de când obligația ar deveni exigibilă. (Tribunalul Galați, Decizia civilă nr. 592 din 21 mai 2021, definitivă)
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La sfârșitul anului 1871 a fost creată „Societatea juridică” – cea dintâi societate juridică românească. În același an, joi, 16 decembrie, avea să vadă lumina tiparului primul număr al revistei „Dreptul” (la acea dată ziarul „Dreptulu”) – cea mai veche publicație juridică existentă în România zilelor noastre.
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The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
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This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
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Starting from Code of Canon Law we discuss some religious and legal aspects of the Catholic „natural marriage” which cannot be disconnected by t he contemporary cultural and social changes. Here we take into account the power of love which makes people see and wish not only the traditional appearance of marriage, but its real sense. From this point of view, we explain other sides of the nowadays marriage like irregular unions (civil marriages and partnerships) and invalidity of the canonical marriage. We consider that there should be avoided judges that do not consider the complexity of different situations in which people live or suffer. The Church works in the spirit of fraternity and charity and that is why those people who live in some exceptions of the „natural marriage” should be integrated in different ways within the Christian communities.
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In the system of the Civil Code of 1864, the emancipated minor acquired a limited capacity, and emancipation was a period of transition between the complete incapacity and the full freedom. The system of 1954 maintains „tacit emancipation”, but removes the term that reminded of the past, and gives only to the woman the possibility to marry before the age of 18. In addition, through „restricted” exercise capacity, the minors aged 14–18, regardless of gender, acquire an „intermediate” capacity. In search of a balance between tradition and modernity, the current system maintains „tacit emancipation”, preserves the „antechamber” of full capacity and restores „express emancipation”. There are regulated two hypotheses in which a natural person can acquire full capacity of exercise before reaching the age of 18: the conclusion of a valid marriage and the judicial recognition. In both cases, the minimum age required is 16 years and specific „justified reasons” must be proved.
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Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity.
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In this article, the author aims to analyze the theoretical foundations of two essential principles for the state of law and how to balance the relations between the three powers: the principle of constitutional loyalty and the principle of loyal institutional collaboration between the public authorities vested with the governing powers. The two principles are not formally provided in the text of the Constitution, but can be deduced by way of interpretation from other constitutional principles. As for the first principle, the author shows that it has its source in the obligation freely assumed by each member of a community of individuals organized according to the principles of social hierarchy, or imposed by the public authority with supreme force in the community, to respect a summum of legal norms, whose purpose consists in the regulation and harmonization of the social relations. The origin of the second principle is found in the principle of separation of the three powers in the state, which in the governing process are obliged to collaborate loyally with each other, within the institutional framework prescribed by the constitutional norm. In the end, the author concludes that the substance of the principle of constitutional loyalty includes not only the general obligation of citizens and of both public authorities and institutions to respect the will of the Constituent Legislator formally expressed in the text of the Constitution, but also the obligation of the STATE and of each public authority provided in the Constitution, to be loyal to the CITIZEN. Otherwise, the relations between the state and the citizen are compromised, or will take the form and content of totalitarian-type relations, in which the individual is deprived of rights and absorbed by the state as a dehumanized form of life. The author considers that the loyalty of the state towards the citizen is an obligation of constitutional rank and, on this basis, he proposes, de lege ferenda, its express inclusion in the text of the Constitution at a future revision thereof.
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The aggravation of the global ecological problems, including by multiplying and amplifying the effects of the acts of massive and sustainable destruction of the environment, as well as intensifying the concerns for its protection require also the increase of the contribution of the law, especially by strengthening the criminal response, by stressing the particularisation and increasing the efficiency of the measures adopted for this purpose. In expressing this tendency we are witnessing the emergence of a process of recognition and inclusion, thus, among international crimes, of the crime of ecocide, together with and in the potentiation of the meanings of the already existing one of genocide. It is perceived from a legal point of view and it is established in terms of action a new absolute value, that of the security of the planet. In this way, the concept of „crime against ecoumanity” is forged, opening new horizons for legal reflection and for relevant legal-administrative and judicial practice. As part of the effective approach, the definition of „ecocide” has a preliminary nature and it has already known relevant expressions. Among the latest projects of an international definition of ecocide it is distinguished that of the L. Neyret team (2015) and of the Stop Ecocid Foundation (2021). Their analysis, accelerated in the context of the absolute affirmation of the climate change, generates new concrete and doctrinal challenges, the expression of which is assumed as such.
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Almost 8 years after 1 February 2014, the day when the current Criminal Code entered into force, it seems to be a useful step to analyze how the principles of Romanian criminal law are reflected in this Code. Following the examination, we will find that some of the principles enjoy express consecration, such as the legality of incrimination or the legality of the criminal law sanctions, and others have different applications in the body of the Criminal Code or are deduced from the economy of the criminal provisions. In the present paper we will review the doctrinal conceptions regarding the principles of the criminal law and the way in which they are reflected in the current Criminal Code.
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This paper presents the author’s vision on the legal consequences of the implementation of a concept, the National Electronic File, which involves the electronic visualisation of the documents existing in a file pending before a court of law and the possibility of electronic communication of the procedural documents both from the litigant to the court and vice versa, from the court of law to the litigant. Starting from some principles, such as the facultative nature for the citizen and the mandatory nature for the public institutions to use this electronic mechanism, and taking into account regulations from the comparative law, the main directions for amending the codes of procedure are presented, in order to achieve a simpler, friendlier and, last but not least, more efficient justice.
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The study provided by the author is devoted to some general approaches on the judicial and procedural systems in some countries in Latin America and in the Caribbean Sea area. The first part of this approach is dedicated to an introduction of the general reforms in the geographical area of reference and to the concerns of the governments in the area regarding the implementation of some reforms intended to make justice more efficient and more accessible to the litigants. The author notes that also in Latin America and in the countries of the Caribbean area the real problems of justice are not essentially different from those on other continents, including from the European area: the postponement of trials, the overcrowding of the courts of law and a modest funding of the judicial system. The political influences on justice in some countries in Latin America and the Caribbean area have led, in this geographical area as well, to a significant decrease of the citizens’ trust in the judicial system. The organization of the judicial systems from the countries of reference offers us a complex legal geography, in relation to the way of organization from the European countries, since in many states in the area the Roman-German law system coexists with that of common law, the latter’s greatest influence being found in the field of public law. The last part of the study presents us some of the most significant approaches at the level of the strictly procedural institutions. And the reforms undertaken in the last three decades in procedural matters cannot ignore the role and influence exerted by the Preliminary Draft Civil Procedure Code for Latin America. That is why the author presented, in a synthetic manner, the principles that were the basis of this important Latin American project and which had a positive impact on some of the regulations contained in the new Civil Procedure Codes adopted in recent years in the specified geographical area. The author’s investigation is not only of doctrinal interest, viewed from the point of view of a comparative research, but also a practical one in an era in which the effervescence of globalization forces us to new reflections on the organization of an efficient, fast justice that leads to prompt enforcement of the judicial decisions. Some of the procedural reforms in Latin America and in the Caribbean area can also be benchmarks for the reforms of justice in other countries, including in the European Union area. And, from among these, the most significant concern undoubtedly the acceleration of trials, the rationalization of the means of appeal, especially the appeal in cassation, the reduction of special procedures and the settlement of some cases, especially of low value, in a single hearing.