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In this article, the author analyzes extensively the regulations contained in the new Civil Code and in the special legislation referring to the means of identification of the natural person. The author’s points of view rely on a rich speciality literature and on an extended judicial practice relevant for the identification of a person by civil means. Each attribute of identification of the person is discussed and presented in detail, so that the reader may obtain a complete information on the subjectmatters dealt with. When discussing the problems of identification of the natural person, the author also resorts to the conception of European law in the matter, reflected at the level of the Convention for the Protection of Human Rights and Fundamental Freedoms, also ratified by Romania, as well as of the ECHR case law on various aspects that are related to the private life of the persons and are relevant as attributes of their identification. Within the study, there are presented extensively the name and the domicile of the person established in the civil legislation as attributes of identification of the person. -
Within this paper, the author makes a thorough analysis of the offence regulated by Article 277 of the Criminal Code, starting with the reason of incrimination and presenting in detail the constitutive elements of this new offence. To this end the author often makes reference to the provisions of the Statement of reasons of the Law No 286/2009. At the same time, the author confers a particular importance to establishing the existing relations between the offence provided by Article 277 of the Criminal Code and those regulated by Article 12 point 2 of the Law No 78/2000, by Article 269 of the Criminal Code, respectively. -
Take Ionescu was one of Romania’s most remarkable politicians at the end of the nineteenth century and the beginning of the next one, especially before and during the First World War. He was active in politics over 30 years, especially within Conservative Party, whose leader wanted to become, but without success, the competition being intense along with great figures of the Romanian politics of those times: Petre Carp, Alexandru Marghiloman, Nicolae Filipescu, George Gr. Cantacuzino and others. He was one of the brightest orator in the Romanian Parliament, being known and feared by the close logic of his interventions and his great popularity, which attracted close to him many and valuable persons, among them: Constantin Dissescu, Nicolae Titulescu, the historian Xenopol, Dr. C. Istrati, etc. Among his qualities were seriousness and competence, approaches on multiple plans, which was why he was minister in seven governments and, towards the end of his career, was for the short time Prime Minister of the Government. He formed a dissident Conservative Party, which played an important role in the first decades of the 20th century, participating in the exercise of power with other political parties. Take Ionescu was one of the most conscious fighters for the cause of the Great Union of all the Romanians, tirelessly militating for participation in the World War I, along with the Entente countries, which they supported. He was intended to play an important role at the Peace Conference in Paris, but vanities and politicking games made to be absent from this event, where his contribution would have been particularly useful. In the end, as Foreign Minister in the Government of General Averescu, Take Ionescu was the architect of the Balkan Pact, which his disciple Nicolae Titulescu put into practice. -
In this study the author points out that, although in Romania we can not talk about a real regime of liability for the inconveniences of neighbourhood, but rather about an identity between this form of liability and the one for the abuse of law, however the social, economic, cultural realities, etc. impose such regulation. From a legal point of view, there is no exact definition of this notion, reference being often made in the legal doctrine to the sociological studies that have examined neighbourhood relations or to geographic studies, in which it is contained the essence of this notion from a spatial point of view. The author points out that neighbourhood can be defined as a state of facts that captures the co-existence of some persons, of some assets, whether movable or immovable, configuring those spaces of conflict and discussing proximities and distances. The Civil Code establishes precise rules on environmental protection and good neighbourliness, considered to be legal limits to private property right, thus, according to the provisions of Article 603 of the Civil Code: „The property right imposes the compliance with the duties concerning the environmental protection and the ensuring of good neighbourliness, as well as the compliance with the other duties which, according to law or custom, belong to the owner.” The new regulation nuances certain aspects which, in practice, raise many problems; the following are examples: the use of waters, the roof droplet, the distance and the intermediate works for certain constructions, works and plantations, the view of the neighbour’s property, the right of passage, and finally the judicial limits are regulated. These judicial limits determine expressis verbis the consequences of exceeding the normal boundaries of the neighbourhood, more precisely, if the owner causes, by exercising his right, greater inconveniences than the normal one in the neighbourhood relations, the court may, on grounds of equity, compel him to pay compensation for the benefit of the injured person, and to restore the previous situation whenever possible.
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Suspicious death is one of the key legal institutions on the right to life. This study aims to present the concept of suspicious death in Romanian law, its evolution and the relationship between its legal provisions and Article 2 of the European Convention of Human Rights. Even though impossible to quantify at present moment, many of the abuses committed by agents of the communist regime, abuses which led to the death of their victims, may constitute reason enough to consider them suspicious deaths under Romanian criminal law. Article 2 ECHR, from a procedural point of view, may be interpreted as obliging the Romanian state to organize an effective investigation into the circumstances that led to the deaths of the opponents of the communist regime in Romania, if and when the circumstances in which the death occurred raise the possibility that that death to be a result of an abuse committed by an official of the Romanian state or in his or her custody.
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Law No 78/2014 regarding the regulation of volunteering in Romania provides that a volunteer agreement can be concluded by any natural person „who has acquired capacity to work according to the legislation in the field of labour.” Whereas this phrasing is likely to generate controversies and discussions (the Law No 78/2014 being a law in the field of civil law, and not in the field of the labour law), the author examines precisely at what age minors may conclude volunteer agreements. The author’s conclusion, resulting from the corroboration of Articles 41–42 of the Civil Code with Article 13 of the Labour Code, is that: minors may conclude volunteer agreements after they turned 14, but between 14–16 years of age the consent of their parents, guardians, etc., is also required and, after the minor turned 16, he may conclude such an agreement himself, without the above-mentioned consent. -
This paper presents a brief analysis of the problems raised by the offence of theft. The authors emphasize, on the one hand, the close connection between these problems and some errors occurred in the civil theory of possession, and, on the other hand, some shortcomings of the current definition of the offence of theft. Similarly, there are presented some possible corrections, both at theoretical level and at legislative level.
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Inconveniences of neighbourhood are regulated autonomously in Article 630 of the new Romanian Civil Code, as judicial limits of the right of property. The paper analyzes the inconveniences of neighbourhood in the light of the relation to the abuse of right, because it has been for a long time the main instrument of settlement of the conflicts arisen in the state of neighbourhood. In this regard the author emphasizes that, unlike the abuse of right that involves, in all its forms of manifestation, the existence of guilt and the illicit act, by engaging the tort civil liability, the inconveniences of neighbourhood oblige the owner to provide reparation only if they are abnormal and are produced by the normal and licit exercise of the right. The foundation of the obligation to repair the created inconvenience is equity, the only one that can adjust to the conditions required by the legal situation specific to abnormal disturbances of neighbourhood. By applying equity, the court sets the judicial limits in the exercise of property, separate from the legal limits or from the conventional ones, expressly regulated by the new Civil Code, for private interest. -
The author makes a brief analysis of the relapse into crime in the new Criminal Code and argues the opinion according to which, if the post-execution relapse into crime has been finalised and used in a criminal trial according to the Criminal Code of 1968, the relapse into crime can not be retained according to Article 43 (5) of the Criminal Code and the limits of the punishment can not be increased by half.
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The author makes a comprehensive and dense analysis of the exception of non-performance which, in his opinion, falls within the system of remedies for non-performance of contracts. At the beginning of his scientific speech, he has proceeded to a broad presentation of the notion, origin and foundations which justify the existence and the application of this important legal means, which is available to any party of a contractual relation, the content of which is formed of reciprocal and interdependent obligations. Likewise, he points out that, unlike the legislative state existing under the influence of the old Civil Code, currently, the exception of non-performance is expressly regulated, by general provisions, in Article 1556 of the new Civil Code, taken over in their essence from the German Civil Code, which entered into force on 1 January 1900. Having the provisions of the new Civil Code in this matter as legislative reference points, this study presents a vast debate on the scope of application, on the conditions of existence, on its own and specific mechanism of operation, as well as on the effects which this important remedy for non-performance of contracts produces between the contracting parties and to the third parties. The findings and the conclusions of the analysis have allowed the author to retain and to express the elements and the own features of the legal regime and of the functions specific to the exception of non-performance, based on which, ultimately, he proceeds to its delimitation from other related legal mechanisms, such as the legal compensation and the right of retention. -
The problematical issues concerning the documents issued by the President of Romania in exercising his constitutional and legal powers and the settlement of disputes derived from these documents have been less discussed in the literature of speciality. Starting from this reality, this study intends to analyze these issues, by comparing the provisions of the Law on the administrative disputes No 554/2004 to the provisions of the revised Constitution and to other special normative acts in the matter. In this context, the study analyzes in detail the documents issued by the President of Romania in exercising his constitutional and legal powers, the documents issued by the President of Romania which may be subject to an action for administrative disputes, as well as the documents which are excepted from the control of the court of administrative disputes.
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Given the importance that cybercrime is acquiring, the author has appreciated as being necessary to make an analysis on the applicability of self-defence and state of necessity in the context of cybercrime. Having as premise the necessity of justifying the retaliation in the virtual environment, the author has attempted to identify arguments in order to support the thesis according to which the self-defence and the state of necessity may find their applicability including in this area. Beyond analyzing the problematic issues related to this topic, we have tried, therefore, to emphasize the hypothetical situations in which a cyber (digital) attack is likely to give an outline to the state of self-defence or to the state of necessity. -
The Ombudsman is a fundamental institution of the state of law, meant to ensure the protection of natural or legal persons against the abusive manifestations of the public authorities. In this context, this study aims to analyze the main problems arisen in the practice of exercising the powers of this autonomous administrative authority, envisaging, in particular: the scope of public authorities and of the administrative acts falling within the scope of activity of this authority; the procedure for exercising the action for administrative disputes by the Ombudsman. Likewise, following the analysis of these aspects, there are formulated de lege ferenda proposals. -
In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed. -
The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”.
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The former regulation – the Law No 85/2006 – did not define the principles underlying the application of the insolvency procedures, these being identified, explained and developed by the legal doctrine. The 13 principles provided by the Law No 85/2014 are applicable both to the procedures for preventing insolvency and to the insolvency procedures. The principles are applied by the bodies involved in the procedure, in the absence of some express provisions, which regulate some specific situation, or are used for the interpretation of an unclear text. Defining the principles is extremely important, the practice following to prove their usefulness, where the regulation is lacking or is unclear. This study aims to analyze comparatively the principles stated by the legal doctrine in the ambiance of the provisions of the Law No 85/2006, as well as the principles provided by Article 4 of Law No 85/2014, with special regard to the principle of maximizing the degree of realisation of assets and of recovery of claims.
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The institution of administrative disputes in the matter of the ordinances or of the provisions of ordinances established as unconstitutional, as well as of the constitutional and legal regime thereof is less analyzed in the specialized literature and debated in the judicial practice from Romania. In this context, this study intends to make an analysis of the most controversial aspects related to the applicability of the institution of administrative disputes in this matter, as well as of some aspects referring to the particularities of exercising the action for administrative disputes against the ordinances or against the provisions of ordinances established as unconstitutional by the Ombudsman. -
In this study it is examined how the patrimonial allocation estates are formed and their legal status only for those persons practicing authorised liberal professions individually, that is only for a certain category of professionals. The author has analyzed the consequences which the inclusion of a joint asset of the spouses, subject to the matrimonial regime of the legal community, into the patrimonial estate of professional allocation of one of these may have. Such a change of destination of the joint asset, even temporary, requires the consent of both spouses, and, in case of buildings, the declaration of patrimonial allocation must comply with the authentic form and must be registered in the land register in order to be opposed to the personal or professional creditors of the spouses. The specialized and exclusive guarantee of the professional creditors on the patrimonial estate of professional allocation can make possible the pursuit by these of the joint asset, so that the consent of one of the spouses to the inclusion of the joint asset in the professional allocation estate of the other spouse may be interpreted as an implicit guarantee of the performance of the professional obligations by the professional spouse who practices an authorized liberal profession. -
This study focuses on the difficulties identified in the practice of the law courts which establishes the processual remedy made available by the criminal processual law assuming that two or more criminal judgments, on the same subject, were pronounced at different times. Thus, the judicial practice has outlined different visions in the qualification of the legal remedy given the proximity that may be encountered between the case of review on the irreconcilability of the judgments and the case of appeal for annulment on the infringement of the authority of res iudicata. -
The normative act which regulates the Romanian citizenship is the Law No 21/1991, republished on 13 August 2010. Recently (on 15 September 2015), the Law on the Romanian citizenship No 21/1991, republished, has undergone important amendments and supplements brought by the Government Emergency Ordinance No 37/2015, an ordinance whose content is the subject of this study. -
This paper provides a legal analysis of rules in the new (Romanian) Civil Procedure Code on ensuring a unitary judicial practice, i.e. the appeal in the interest of law and, respectively, the referral to the High Court of Cassation and Justice for a preliminary ruling on the settlement of matters of law. While the appeal in the interest of law existed also in the previous Civil Procedure Code, the referral to the High Court of Cassation and Justice is a new procedure, not regulated by the previous Civil Procedure Code. -
This article analyses the categories of incompatibilities of judges regulated by the Civil Procedure Code, since its initial publication in 2010 to the amendments brought by Law No 76/2012 implementing Law No 134/2010 on the Civil Procedure Code and to the version that resulted after the republication in August 2012. In the original version of the Civil Procedure Code distinction was not made between cases of incompatibility, but the effects thereof resulted in the existence of two categories: absolute and relative incompatibilities. Following amendments brought by Law implementing the Civil Procedure Code, this distinction seemed to be established in the legislation. Nevertheless, after the republication of the Civil Procedure Code, marginal titles suggest the existence of some cases of absolute incompatibility and other cases of absolute incompatibility, which does not correspond to the content of the respective texts since only cases referred to in Article 41 of the Civil Procedure Code are absolute, while those referred to in Article 42 of the Civil Procedure Code are relative.
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The study has mainly in view the involuntary hospitalization of a person with mental disorders as a civil protection measure, as regulated by the Law on mental health and protection of persons with mental disorders No 487/2002, republished. In order to complete the characterization of this measure, the paper has also approached the aspects concerning the protection of the person suffering from mental disorders and that are governed by the Civil Code, but also by the new Criminal Code and the new Criminal Procedure Code. -
În spațiul public românesc din ultimii patru ani, discuțiile referitoare la revizuirea Constituției au devenit atât de uzuale, încât riscă să bagatelizeze nu doar ideea de revizuire a Constituției, ci chiar conceptul de lege fundamentală. În marea lor majoritate, dezbaterile publice referitoare la necesitatea modificării Constituției au stat sub semnul unor viziuni personale și personalizate cu privire la rolul instituțiilor fundamentale ale statului. Cel mai adesea, opțiunile formulate de maniera cea mai vocală au avut ca punct de pornire situațiile conflictuale în care au fost implicate diferite autorități publice. În sine, această abordare, eminamente din perspectivă conflictuală, deși utilă și poate chiar necesară, este incompletă și insuficientă.
