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The concept of material error is evoked in two texts of the Civil Procedure Code, respectively in Article 442 and in Article 503 (2) point 2. For the purposes of Article 442 of the Civil Procedure Code, according to the opinion unanimously accepted by the doctrine and by the case law, material error is the mistake slipped in the contents of the judgment, at the time of drafting, which does not affect the foundation or the legality of the solution pronounced by the court. The correction of such material errors is made according to a special procedure regulated by law, which has as its finality the correction of such errors slipped, at the time of drafting, within the minutes, the preambles, the recitals, or even within the operative part of a judgment, which may be a sentence, a decision or a minutes of the session. This category of material errors includes those related to: the name, quality and oral submissions of the parties, those of calculation, etc. The legal meaning of the concept of material error, within the meaning of Article 503 (2) point 2 of the Civil Procedure Code, is sensitively different from that attributed to this concept by Article 442 of the Civil Procedure Code. From this perspective, the material error is any essential and involuntary omission in relation to the situation existing in the file at the time when the court of recourse delivers the judgment. In other terms, the obvious material error concerns formal aspects of the recourse which had as consequence the wrongful settlement of this legal remedy. It is about that mistake made by the court by confusing some important elements or some material data and which determines the solution delivered. The doctrine defines the judicial error as the error of judgment committed by judges or by prosecutors in the course of conducting a judicial procedure. This error may be of law or of fact and in any system of law such an error stands as basis for exercising of the ordinary or extraordinary legal remedies. -
Celebrating the Day of Justice is a good opportunity for the theoreticians and the practitioners of law to subject to reflection topics of a particular interest, legislative and jurisprudential solutions, or de lege ferenda aspects. Such an event also enables the evaluation of the institutional relations between the authorities that have a well-defined constitutional role in exercising the judicial authority, as well as of the contribution of the different legal professions to the general and complex law enforcement process. From this perspective, the author emphasizes not only the importance of the celebration reunion of the representatives of the main institutions and professional organizations of jurists, but also the requirement for such an event to be marked by scientific manifestations, in which the participants to make known their own researches in the field, to debate in a spirit of fellowship and solidarity issues facing justice as a public service, the statute of magistrates, as well as of the other legal professions. In a way, every man of law is responsible for the triumph of the idea of justice in his profession.
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Foarte mulți autori moderni întrebuințează în lucrările lor expresia jus ad rem pentru a desemna dreptul de creanță, opunându-l astfel dreptului real jus in re. Această expresie a avut o influență considerabilă în evoluarea instituțiilor juridice. Scopul nostru este de a examina aici cum au fost aduși autorii să numească dreptul de creanță jus ad rem, precum și cele două mai importante consecințe ale acestui fel de a concepe natura dreptului de creanță: dispariția obligației chirographare și transformarea efectelor vânzărei. -
Se știe că, în materie represivă, prescripția produce un îndoit efect, acel de a stinge acțiunea publică și cea civilă, care izvorăște dintr’o crimă, delict sau contravenție polițienească (art. 593–595 C.pr.pen.), și acel de a stinge pedeapsa pronunțată de tribunalele represive art. (596–598 C.pr.pen.). Pentru a se justifica aceste dispoziții s’au dat mai multe motive, asupra căror vom reveni mai târziu tot în coloanele acestui ziar, când vom expune considerațiile generale asupra prescripției penale. Destul este să spunem deocamdată că motivul cel mai puternic și poate singurul motiv ce se poate invoca în specie este că societatea nu are nici un interes a pedepsi o infracțiune a cărei amintire este ștearsă. Legea penală nu vorbește de suspendarea prescripției, ci numai de întreruperea ei. Actele întreruptive consistă, când este vorba de prescrierea acțiunei publice, în acte de instrucțiune și de urmărire (art. 593 C.pr.pen.). Vom vederea îndată care sunt actele întreruptive de prescripție când este vorba de prescrierea executărei pedepselor.
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This paper presents a point of view regarding the correlated interpretation of both articles 53 from the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, ECHR) and the Charter of Fundamental Rights of the European Union (hereinafter, the Charter) in the context of EU accession to ECHR. Opinion 2/13 of the EU Court of Justice from 18 December 2014 establishes that there is no provision in the Commission’s project agreement for EU accession to ECHR that envisages to ensure a coordination between both articles 53, allowing Member States to provide for higher standards on human rights protection than ECHR or the Charter, which could entail the undermining of the primacy, unity and effectiveness of EU law.
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The attributions that confer substance to the activity of the prosecutor before the jurisdictional body are the participation in the trial of the criminal and civil cases, the exercise of the means of appeal against the judgments, the examination of the cases of non-uniform application of the law and the analysis of the cases in which the courts have delivered final judgments of acquittal, return or referral to the prosecutor. In criminal matters, the prosecutor mandatorily participates in the trial, under the sanction of absolute nullity, in the cases where the law expressly provides for his participation, and optionally, in cases other than those in which the law establishes the obligativity of participation. In civil matters, the rule is that the prosecutor takes part in the trial optionally, when he considers it necessary to defend the rule of law, the rights and interests of citizens. By way of exception, the prosecutor mandatorily participates in the trial of the civil cases when the obligativity is expressly provided. In criminal matters, the law opens for the prosecutor the path to exercise all means of appeal, ordinary (appeal, contestation) or extraordinary (recourse in cassation, contestation for annulment, revision), against various judgments. In civil matters, the prosecutor may exercise the means of appeal when he deems it is necessary to protect the rights and legitimate interests of minors, of the persons placed under interdiction and of the missing persons, or when he has participated in the trial of the case.
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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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In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.
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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 legal epistemology justifies the interest of this study for the relations which are established between the notions of branch of law, of sub-branch of law, of legal institution, as well as their relations with the forms of legal liability which they regulate. In the problems of the dynamics of the relations between the branches of law and the forms of legal liability the rule is that every branch of the law knows or generates at least one form of legal liability. Starting with the theoretical challenge launched by Professor Antonie Iorgovan, regarding the elements that announce the appearance of a new form of legal liability within or outside a branch of law, the novelty proposed by this study consists in the approach of the inverse relation, precisely of the capacity of a new form of legal liability to generate a new branch of law, as well as its reception by a legal science of branch. The verification of the validity of the capacity of mutual cogeneration between the forms of legal liability and the branches of law will be achieved by means of the examples of the relations established between the ecological liability and the environmental law, the objective liability and the insurance law, the managerial liability and a possible managerial law on the ground of legal methodology.
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The current Civil Procedure Code has brought some changes in respect of the evidence with the interrogatory, changes which are discussed in this study. Thus, for example, the court has the possibility to proceed to the confrontation of the parties and, in case of the interrogatory of the persons who are abroad, according to the new regulation, the condition of domicile situated abroad is no longer necessary, being sufficient for the party to be abroad for a longer period of time. I have discussed punctually the administration of the evidence with the interrogatory in the case of the natural person, in the case of the legal person, in the situation of the persons who are abroad, as well as the effects of the absence from the interrogatory or of the refusal to answer to it. Since the confession is currently regulated by the Civil Procedure Code, unlike the former regulation, when it could be found in the Civil Code of 1864, I have presented the most important aspects concerning the judicial confession.
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This article has as object of study the issue of the marriages of convenience concluded for the sole purpose of ensuring the right of entry and of stay of a foreign citizen on the territory of Romania. In elaborating the study plan we have considered: a first introductory part which presents the normative basis relative to the legal regime of the foreigners; a section devoted to some decisions of the Romanian Constitutional Court which has been entrusted over time with analysing the concordance of the provisions regarding the legal regime of foreigners with our Fundamental Law; a point devoted to the European legislation relevant for the issue under our examination and a practical part which reveals how Romanian courts have settled cases concerning the assessment of the marriages of convenience.
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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.
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Conform prevederilor art. 396 alin. (6) C.pr.pen., instanța pronunță încetarea procesului penal atunci când există vreunul dintre cazurile prevăzute la art. 16 alin. (1) lit. e)–j) C.pr.pen. Unul dintre aceste cazuri, prevăzut de art. 16 alin. (1) lit. g) teza ultimă C.pr.pen., se referă la situația în care „a fost încheiat un acord de mediere în condițiile legii”. (Curtea de Apel Galați, Decizia penală nr. 1278/A/8.12.2016 dată în Dosarul nr. 1324/233/2016, cu notă aprobativă) -
In this study we wish to discuss and find a solution to the many aspects specific to the measures with equivalent effect to the quantitative restrictions, but also to follow up the influences on the policy of protection of similar domestic products within the European Union. We will analyze in detail the free movement of goods, as well as aspects concerning the customs duties and the modality to impose them. We will define the notion of measures with equivalent effect to the quantitative restrictions and we will also subject to research the modalities in which they arise. For the elaboration of this study, we will take into account the domestic law in the matter, the provisions of the international conventions on the free movement of goods, the provisions in the matter of the European law, the legislation and the case law of different states, and we will also raise for discussion the Dassonville and Keck decisions which are of a particular importance in the MEERC matter.
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Typical as they could be for the continental legal system and bearing common landmarks recommended by the Council of Europe and European Union, France, Italy and Spain are the three examples of states best suited to illustrate the European vision on the civil liability of judges and prosecutors for the damages caused by the exercise of their legal powers in deciding upon acts and measures taken in the framework of litigation, including the final decision on the case. The analysis of these examples represents the continuation of a former study published in the same legal journal on the matter, but viewed through the lenses of the US Supreme Court of Justice and laws. Based on the Council of Europe Charter on the Statute for Judges and Recommendation on the judge’s independence, efficiency and responsibilities, guided by the case law of the EU Court of Justice and ECHR, the law and legal practices on civil liability of judges and prosecutors find their expression in slightly different manners in France, Italy and Spain, but all of them respect the paramount principle of the indirect liability which could be enacted only based on the state’s direct liability. There are some national differences but nevertheless they don’t represent deviations from the common European approach. The present study searches for all different and common views of the three states on the subject, emphasizing on the main principles that should guide the continental legal system’s states on that respect.
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The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty.
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The independency or autonomy of public servants in construing and applying the law is warranted by the Constitution or by law. By virtue of the independency or autonomy, public servants construe and apply the law according to the own beliefs, being entitled to reject any interference from authorities or persons. Errors of public servants in the process of construing and applying the law can result in their non-criminal legal liability, if the conditions of such legal liability are fulfilled, as the case may be, civil tort or contract, disciplinary, material, taxation or contravention liability, in no case criminal liability for the offence of abuse of office provided by Article 297 (1) of the Criminal law.
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The study is grounded on the thesis according to which the contestation against execution aimed at reducing the punishment imposed on the convicted person under the special cause of reducing the punishment provided in Article 19 of the Law No 682/2002 on the protection of witnesses is inadmissible.
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This study deals with the mediation in the criminal side of the trial. The legislator has limited the scope of application of the mediation in the criminal side of the trial to the offences in respect of which the criminal action is set in motion upon the prior complaint of the injured party and is extinguished by the withdrawal of the prior complaint, on the one hand, and to the offences in respect of which the criminal action, although set in motion ex officio, is extinguished by the reconciliation between the injured party and the perpetrator. The mediation procedure in the criminal side of the trial is marked by three stages: the pre-mediation stage, the stage of actual mediation and the stage of closing the mediation. The pre-mediation stage is marked by an initial moment, when the conflicting parties present themselves to the mediator, and by a final moment, when mediation is either accepted or refused. The stage of actual mediation takes place in the form of some mediation sessions and it concentrates the most important activity of the mediation procedure. After the mediation takes place, the procedure is closed by concluding an agreement between the parties as a result of the settlement of the conflict, by the mediator’s finding of the mediation failure or by the submission of the mediation contract by one of the parties. Within the mediation in the criminal side of the trial, three legal acts are drawn up: the mediation contract, the minutes of closing the mediation and the mediation agreement. The mediation contract ends at the final moment of the preliminary stage of the procedure, when the conflicting parties appear before the mediator. Upon closing the mediation procedure, the mediator draws up a minutes. It is mandatory to draw up the minutes, regardless of the modality by which the mediation procedure is closed. If the mediation is closed by settling the conflict between the parties, the minutes of closing the mediation procedure is doubled by a mediation agreement. In criminal matters, the mediation agreement in writing is mandatory.
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In this study, the author makes an analysis on the right to life, with emphasis on the moment when the right to life begins to flow, including from the phase of conception of human life, by reference to the case law of the European Court of Human Rights and of other courts outside the European Union, following that, in the final part of the study, an analysis be made on the current criminal provisions protecting the right to life in its incipient phase and the compliance of these provisions with the standard required by the Convention.
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The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments.
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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.
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In essence, the expropriation procedure goes through two stages, the administrative stage and the judicial stage, the common law in the matter being represented by the Law No 33/1994, as amended and supplemented. The litigation procedure is criticizable however, in many aspects, for the lack of transparency and of access to data, from the perspective of the holder of the restricted real right. Thus, although in the preamble of this normative act it is affirmed the necessity of equalizing the right of private ownership with the public interest, the latter has priority in many of the situations that have arisen in practice.
