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The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article. -
The foundations of European Union law lie in the reasons that European decision-makers have identified, after the two World Wars, firstly, for the establishment of the European Coal and Steel Community and then of the European Economic Community and the European Atomic Energy Community. These reasons, however, find their origins in the events that essentially marked the first half of the 20th century, identifying themselves, among other things, through the developments recorded by the international society, namely the international law, in general, evolutions which the European society, and, implicitly, the European Union law, would not have been possible to avoid. -
Following the Decisions of the Constitutional Court No 405/2016 and No 392/2017 there are numerous discussions regarding the regulation of the offence of abuse of office, provided by Article 297 (1) of the Criminal Code. The Ministry of Justice has proposed the amendment of Article 297 (1) of the Criminal Code without establishing a value threshold and without the circumstantiation of the injury caused by committing the facts, elements depending on which it can be assessed the incidence or lack of incidence of the criminal law, by ignoring the above-mentioned decisions of the Court. In the public debates organized by the Ministry of Justice different opinions have been expressed in the sense of establishing a derisory threshold of ROL 1 000, in another opinion a threshold of ROL 2 000 000, and in another opinion in the absence of any threshold, without any circumscribing of the offence of abuse of office. In the context of these discussions, we propose the adoption of the regulation of the French Criminal Code in which facts are clearly, precisely and predictably circumscribed.
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This article proposes a solution to identify the initial moment of the period of prescription of the criminal liability in case of the offence of deception, in the particular situation where the material element is separated in time from the immediate follow-up. In order to resolve this matter of law it is necessary to establish the legal nature of the offence of deception, from the point of view of the offence unity. If a progressive offence is in question, the form of legal unity being part of the category of offences with duration of consummation in time, the period of prescription of the criminal liability begins to run from the date of committing the action or inaction.
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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.
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Reopening the criminal trial in case of the judgment in the absence of the convicted person – an extraordinary means of appeal whose admissibility is subsumed to a set of conditions and requirements the fulfilment of which is meant to offer to the defendant the guarantee of a fair trial.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of witness protection in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the witness protection. The authors analysed essential aspects regarding the protection of threatened witnesses, the protection measures ordered during the criminal investigation, the protection measures ordered during the trial or the protected witnesses hearing, as well as the protection of vulnerable witnesses by reporting to the European Convention of Human Rights provisions and jurisprudence. Also, the present paper analyses the probative value of the protected witness statements and contains comparative law matters on witness protection laws in several European countries.
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This study focuses on the legal issues involved by the provisions of Articles 125 (3) and 132 (2) of the Constitution (according to which the office of judge or public prosecutor shall be incompatible with any other public or private office, except for the didactic offices in the higher education institutions) in correlation with the provisions of Article 41 (1) of the Constitution (according to which the right to work shall not be restricted, and everyone has a free choice of his/her profession, trade or occupation, as well as work place). Currently, the relevant administrative practice and case law interpret and apply extensively (lato sensu) Articles 125 (3) and 132 (2). Such approach leads to the presumption that any other activity performed by judges or public prosecutors is forbidden (otherwise triggering disciplinary liability thereof) unless that other activity is not related to didactic offices in higher education or is not assimilated to such offices by special law (or, as it happens most often, by a decision issued by the Plenum of the Superior Council of Magistracy). This study demonstrates that, on the contrary, the aforementioned constitutional provisions establish a presumption according to which the judges and public prosecutors can lawfully perform not only the activities which consist in „didactic offices in higher education”, but also any other activity which is not an „office” and in relation to which there is no „conflict of interest” in the light of the relevant legal provisions. In order to reach this conclusion, the constitutional and legal provisions on the concept of holding multiple „offices” must cease to be interpreted extensively (lato sensu), as it is made currently by the administrative practice and the case law, but restrictively (stricto sensu) – as those constitutional provisions constitute an exception from the constitutional principle of the free right to work, establishing a restriction of this fundamental right exercise. The legal provisions laid down in this field can be qualified as consistent with the Constitution only if their normative content does not produce an extensive application of the constitutional provisions concerning the holding of multiple „offices”. Thus, by the words „other public or private office” (with which the office of judge or public prosecutor is prohibited to be held simultaneously) one has to understand exclusively a public or private activity performed regularly and in an organized manner within an institution (organization) against a remuneration.
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The ordinary courts have the general competence to protect the rights and freedoms of individuals, whether provided or not in the international treaties or in the Constitution of Romania. The Constitutional Court’s claim to be the only one to exercise constitutional justice powers is based on a faulty interpretation of its own competence, which is constitutionally determined as being to ensure the supremacy of the Constitution, and on reducing the constitutional contentious to the contentious of rules. A correct interpretation of the constitutional provisions and the fructification of the Romanian tradition in the matter of constitutional justice demonstrate that the ordinary courts are competent to apply the Constitution in order to protect the rights and freedoms of individuals, therefore to exercise constitutional justice powers, because this is not reduced to the control of the constitutionality of the laws.
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Until the entry into force of the current Civil Code, the maintenance contract was an unnamed one and did not benefit from a regulation by the former Code or by other normative act. Often encountered, developed in time by the practice, the doctrine and the case law, devoid of rules to determine its definition and content, the maintenance contract raised problems due to the difficulty with which it was delimited from similar contracts. In this study, starting with the provisions of Article 2256 of the Civil Code, corroborated with the provisions of Article 2247 of the Civil Code, we are analyzing a real, practical situation of applicability of the provisions of the mentioned articles, showing also the solution which we consider to be the most effective, from all points of view, to solve the problem. It concerns the situation in which the maintenance contract was concluded during the lifetime of an individual who, at the time of conclusion of the contract, suffered from a disease which caused his death.
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Engaging the civil tort liability has as finality the full reparation of the damage. Reparation is a legal means by which the victim may claim to be reinstated in the situation prior to the commission of the illegal act. The right to reparation depends on an objective fact, that of causing the damage. The condition of the certainty of the damage is its most important character. If the damage is not certain, it can not be ascertained whether the right to reparation arose, and if the uncertainty concerns the extent thereof, the object of the claim for damages can not be established. Sometimes, in practice, it is difficult to determine whether the damage invoked is certain or possible. In relation to this condition of certainty of the damage, the damage by loss of the opportunity to gain an advantage is one of the innovative elements of the new regulation, being outlined as a distinct category of reparable damage.
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Stipulation for another and direct actions are two topical legal mechanisms that, although in theory are clearly explained, the judicial practice is hesitant in their application. At the same time, due to the multitude of similarities regarding the effects of these legal mechanisms, a confusion has been created in numerous situations both in terms of their legal meaning and their applicability. As such, a comparative study of the two legal notions contributes and facilitates the substantiation in law of the stipulation for another and of the direct actions, but also the way of application in the judicial practice. In the present study we mainly focused on presenting the origins of the stipulation for another, but also on its application over time, so far, concluding with a comparison with the direct actions, regarding the main effects of the two legal mechanisms. We hope that the judicial practice will outline in time a more effective differentiation of the two notions with a wide spread in the fields of law.
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In this article, the author advocates the necessity to adopt a special law on the liability of magistrates for committing the judicial errors through bad faith or due to their own negligence. The beginning of reforming the political system set in motion in December 1989 has generated also the change of the judicial system as a whole and, at the same time with it, of the relations between the state and the citizen, according to the principles of the constitutional democracy. As the new government system places at its foundation the individual-citizen, it was natural for the state to assume a direct liability for the violation by its judicial agents of the legitimate rights and interests of the citizens. In this framework, it was built a system of corrections for judicial errors, extended to the effective legal liability of the judges and of the public prosecutors who, in bad faith or gross negligence, have violated the processual rights of the parties in the trial, have convicted them unjustly, or have subjected them without any grounds to some repressive procedures. This system of moral and material corrections does not work, the provisions in the matter, included in the processual legislation, are not sufficient for the citizen to gain full confidence in the act of justice. A special law is necessary not only to ensure the corrections of the judicial errors, but also to exemplarily sanction the guilty parties for violating the law.
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Dacă, în ceea ce privește societățile pe acțiuni, legiuitorul a menționat expres în art. 118 alin. (1) din Legea nr. 31/1990 privind societățile posibilitatea ca în convocatorul pentru prima adunare generală să se fixeze ziua și ora pentru cea de-a doua adunare generală, când cea dintâi nu se ține, o asemenea posibilitate nu este prevăzută și pentru societățile cu răspundere limitată. O astfel de mențiune nu echivalează cu o convocare legală pentru cea de-a doua adunare generală, cerința celei de-a doua convocări rezultând din mențiunea expresă din cuprinsul art. 193 alin. (3) din Legea nr. 31/1990. -
The reasons behind our research are justified by the numerous legal acts of the European Union adopted in the most diverse areas, acts which include an unprecedented development of substantive EU law, particularly during the last period (2000–2017). As a consequence, the situations in which the infringement procedure can be initiated are also exponentially multiplied. An in-depth analysis of the subject can be edifying if we make a quantitative comparison, and not only, of the EU acquis, existing in the ’60s, at the beginning of the Community construction, compared to the present, already 60 years after the signing of the Treaties of Rome, which have led to the adoption of a highly derivative legislation within a Union of 28 Member States. Regarding the infringement procedure, for doctrinaires, but especially for practitioners, we will analyze the following outstanding issues: who can trigger the procedure; against whom the procedure may be triggered; the situations and methods for initiating the procedure and the steps taken. All these aspects are presented taking into consideration the quality of Romania as a Member State of the European Union with full rights and obligations.
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The article proposes a discussion about the institution of the putative deed. Considering the fact that this institution does not know an explicit legal regulation, it gave rise to heated discussions in the specialized legal literature, which had not only a theoretical importance, but also a great practical importance. In the beginning of the presentation it is shown what is the correct name of this institution of criminal law, from the author’s perspective, arguing at the same time the opinion to which he understands to rally. It is shown that the putative deed corresponds to an inverse error either of law or of fact. Given that, in a first hypothesis, the author considers that the deed committed is incriminated by a rule of criminal nature, although in reality such an activity is not incriminated or, in another hypothesis, although the author’s deed is incriminated by the criminal law, the actual manner of committing the deed does not fall within the respective legal text. Similarly, it is also presented perhaps the most heated discussion in the legal literature, namely the one in which the author executes certain acts of execution with the intention of killing a person, not knowing that he had died prior to the moment of beginning the activity. It is shown that, given the legal reality in our country, at this time, the perpetrator has to be held liable for committing a putative deed, not an attempt, whether a punishable or non-punishable attempt is discussed. At the same time, it is stated that the judicial practice has retained the commission of a putative deed, and not of an offence, in the hypothesis that it is required a qualified active subject for committing a certain offence and the person who committed the deed did not act in this capacity. In the author’s opinion, in such a hypothesis, it will not be retained the commission of any offence, but only the commission of a putative deed, only in the situation that the deed committed does not represent another offence. At the end of the article conclusions are drawn, also showing how the legislator could intervene in order to put an end to the discussions arisen in the legal literature and, at the same time, in order to enable possibly the sanctioning of the persons who commit putative deeds which pose a high social danger.
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The study shows that Article 291 of the Criminal Procedure Code, with the marginal name „Referrals made by persons in management positions and by other persons”, provides a sui generis way of referral to the criminal prosecution bodies, separately from the complaint, denunciation and ex officio referral. It is appreciated that the text establishes an obligation to refer the matter to the criminal prosecution body, particularised by subject and object. The subject of this obligation is, among others, any person who exercises a service of public interest for which he has been entrusted by the public authorities. This description corresponds to the notion of civil servant, within the meaning of Article 175 (2) of the Criminal Code. The judge pertains to this category, by the fact that he exercises a service of public interest and by the fact that he has been entrusted by the public authorities to exercise it. Consequently, it is shown that subject of the obligation to refer the matter to the criminal prosecution body is an offence about the commission of which the judge has become aware in the exercise of his duties. The article also notes that Article 346 (7) of the Criminal Procedure Code is mandatory for the preliminary chamber judge, but the extent of this obligation is limited by the need to comply with Article 354 (2) of the Criminal Procedure Code. Thus: as a rule, the preliminary chamber judge who ordered the commencement of the trial has the obligation to join the composition of the judicial panel that exercises the judicial function; by way of exception, if the preliminary chamber judge that has ordered the commencement of the trial is prevented by an objective cause from joining the composition of the judicial panel, he may be replaced with another judge. The sanction of the violation of Article 346 (7) of the Criminal Procedure Code is the absolute nullity arising from the non-observance of the rules regarding the composition of the judicial panel. It is appreciated that absolute nullity is incidental, since Article 346 (7) of the Criminal Procedure Code is violated, in two hypotheses: the preliminary chamber judge who has ordered the commencement of the trial is not also the judge who exercises the judicial function, and this is not caused by any impediment; the preliminary chamber judge who ordered the commencement of the trial is not also the judge who exercises the judicial function, and this is caused by a non-objective impediment.
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Both in the Member States and at European and international level there are currently concerns for finding the best means of combating tax fraud and tax evasion. Recent measures place the good tax governance among the means of fighting against this phenomenon, and it is estimated that joint actions at European level are more effective, being meant to encourage also third countries to apply minimum standards of good tax governance. At the same time, the concept of good tax governance, as well as those of tax fraud and tax evasion are taken under consideration by the doctrinaires in the field of criminal and tax law, but the definitions given to them have been imprecise and sometimes contradictory. In this context, we intend to emphasize the contribution of good tax governance as an effective means to prevent and mitigate tax fraud and tax evasion both at national, European and international level.
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The authors plead for the distinct regulation of the manifestly illegal acts and measures showing that their legal treatment requires operative sanctions and their removal in due time having regard to their implications for human rights and fundamental freedoms. Taking into account the implications increased by the latest changes of the institution of the initiation and continuation of the criminal prosecution there are pointed out some inconsistencies of the criminal processual legislation with the provisions of the Constitution and of the European Convention of Human Rights, expressing some criticism of unconstitutionality. Thus they criticize the obligativity to initiate criminal prosecution „in rem” even when the authors are indicated or known, and make some „de lege ferenda” proposals, for the concordance of Article 304 (2), Article 305 (1), (2) and (3) and Article 339 (5) of the Criminal Procedure Code with the provisions of the Constitution.
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In the situation that a person has been sanctioned by an administrative authority for committing a contravention, this person can no longer be subsequently prosecuted for the same deed contemplated in its materiality, whereas, in this situation it is applicable the ne bis in idem principle which determines, from the perspective of the criminal procedural law, the incidence of the case provided by Article 16 (1) i) of the Criminal Procedure Code, with reference to the authority of res judicata, which prevents the exercise of the criminal action against that person.
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This study has as object the incidental regulations in the matter of illegal border crossings and of asylum, as well as how they intersect, and it intends to find an adequate solution for what happens with the criminal prosecution, in the cases of fraudulent crossings of the state border, in the course of solving the application for being granted a form of protection submitted by the person who has illegally crossed the border. It is proposed the intervention of the legislator in the sense of introducing a rule which provides as cause of suspension of the criminal prosecution the situation where the person wanted for the fraudulent crossing of the state border has subsequently submitted an application for being granted a form of protection and is subject to the asylum procedure. The need for such intervention is motivated by the ineffectiveness of continuing the criminal prosecution and of the settlement of the case provided that, at the end of the asylum procedure, the person concerned can be granted a form of protection from among those recognized by the Law No 122/2006, the cause of non-punishment provided in Article 11 of this law being thus incidental.
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This study analyzes the particularities involved by the powers of the Court of Accounts to establish contraventions and to apply offences punishable in the specific activity of control/audit they achieve. Two categories of offences can be identified, namely contraventions that the Court of Accounts only finds, not having the power to apply sanctions against them, and contraventions for which the Court of Accounts is competent not only to identify them but also to apply the sanctions for them. The rules on contraventions that may be applicable to deviations discovered by the Court of Accounts can be found in the Law on the organization and functioning of the Court of Accounts No 94/1992, as well as in other special regulations that are analyzed in this article. The approach is carried out not only from a legislative and doctrinal perspective, but also from a case law perspective, being exemplified in some solutions given by the courts in cases concerning complaints against the contravention reports drawn up by the Court of Accounts. Finally, some conclusions are presented, which also include the authors’ point of view on the perspective approach, including by the legislator, of this issue.
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One of the extraordinary legal remedies regulated by the Civil Procedure Code is the contestation for annulment. According to Article 503 (2) point 2 and (3) of the Civil Procedure Code, the judgments of the courts of recourse, as well as those of the courts of appeal, may be challenged with a contestation for annulment where the settlement given to that legal remedy is the result of a material error. Besides the phrase „material error”, used in other texts as well, the phrase „material mistake” or the phrase „material mistakes” can also be found in the Code. Thus we appreciate that the legislator was not consistent with the terminology mentioned. It uses the very same phrase, in different contexts and with different meanings, which creates confusions in the interpretation and application of the legal texts. For the lexical and semantic consideration of the phrase „material error”, included in Article 503 (2) point 2 of the Civil Procedure Code, and of the methods of interpretation of the legal rules, it can be concluded that this phrase can not be reduced only to certain procedural errors, but it could also enable the correction of the errors of judgment.
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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.
