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Following the conclusion of the Arbitration Convention there are born a number of contractual relationships between all participants in such Convention, namely: the Arbitration Agreement (between litigants and arbitrators appointed by the same); the Arbitration Cooperation Agreement (in the case of Institutional Arbitration, between arbitrators and the permanent arbitration institution); the Agreement on the Organization of Arbitration (between the Parties and the Arbitration Institution). In the above study there are reviewed the legal issues of the three Agreements, subsequent to the conclusion of the Arbitration Convention mentioned above, namely: The Arbitrators’ Agreement, Drafting Arbitration Agreement and the Agreement on the Organization of Arbitration. -
In the study above, the author puts forward a petition issued by the Anticorruption General Directorate (autonomous structure within the Public Ministry, coordinated by the General Prosecutor of the Prosecutor’s Office attached to the High Court of Cassation and Justice), under which, in relation to a female judge whose spouse (judge) was criminally prosecuted by indictment drawn up by the National Anticorruption Directorate, it is requested to be removed, administratively, from the analysis of documents (indictments, etc.) issued by the National Anticorruption Directorate. As a result of resentments, being thus in the presence of a conflict between the family interests and the public interest for administering justice. The Superior Council of Magistracy could not adopt a decision on the relevant petition within the Court, getting to a tie vote (4 votes for, 4 votes against). The author hardly criticizes the petition submitted by the Anticorruption General Directorate, considering it as an administrative interference in the work of a judge.
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The offence of incest, like other offences relating to sexual life, has generated debates in the specialty literature and doctrine, as well as different solutions in judicial practice. From the author’s viewpoint, although the High Court of Cassation and Justice envisaged, by Decision no. II/2005 to standardize courts’ practice, as regards the legal classification of the facts that, in relation to their material content, meet both the constituent elements of the offence of rape, as well as those of the offence of incest, the solution adopted is questionable, in its turn. The legislature, by the rules of incrimination of the offence of incest under the new Criminal Code, succeeds, at least in this respect, to settle the issue. However, there are some outstanding issues that this study seeks to put forward and clarify.
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Within the framework of study hereby, the institution of the Romanian President’s immunity under the Criminal Law is subject to review. Observing the constitutional legislator’s option, first there are set under review the material and temporal limits of the procedural immunity. In this context, there are put forth some novel problems such as summoning the President as a witness or the scope of immunity in the case of civil and tort liability. In relation to the substantive law immunity, it is reviewed the rationale of the institution, and then its substantive limits are detailed: the presidential powers are identified, i.e. there are brought to the attention some controversial assumptions such as granting and revoking the conditional pardon, or views expressed by the President in another frame than the official one.
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În situația în care, pe perioada procesului de divorț între pãrinți, minora a fost încredințatã mamei prin hotãrâre judecãtoreascã, iar mama o influențeazã pe minorã sã refuze contactul cu tatãl ei și, în același timp, mama refuzã sã execute sentința judecãtoreascã prin care s-a stabilit programul de vizitare a minorei de cãtre tatã, instanța este în drept sã oblige pe ambii pãrinți sã se prezinte cu minora la centrul de consiliere (psihologicã) din cadrul direcției generale județene de asistențã socialã și protecția copilului (cu notã aprobativã).
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Simpla cunoștințã a existenței și folosirii mãrcii anterior depozitului nu este suficientã pentru întrunirea condiției relei-credințe, fiind necesar ca acest fapt sã fie unul de naturã frauduloasã. Reaua-credințã implicã îndeplinirea cumulativã a douã cerințe distincte, vizând, pe de o parte, cunoașterea „faptului relevant” – existența și folosirea unei mãrci anterioare sau chiar a unui semn neînregistrat ca marcã – iar, pe de altã parte, intenția frauduloasã.
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In the above study, the author, carrying out a critical analysis of articles 1216–1218 of the new Romanian Civil Code (Law no. 287/2009, which became effective on the 1st of October 2011), namely, regarding the contents regulating the violence (as a vice of consent) in this Code, considers that their wording is not adequate and that is why finally, the study, de lege ferenda proposes a new wording of the contents, such as formulated by the author. -
The letter of guarantee is regulated by the new Civil Code within the autonomous guarantees, together with the letter of comfort. It is an autonomous, unconditional and irrevocable legal deed. In the letter of guarantee, the issuer assumes its own obligation which in its relationship with the beneficiary at least, shall be main and autonomous – the payment of an amount of money upon the first simple request of the beneficiary, for the situation in which the result taken into account upon its assumption is not carried out. The execution of the letter of guarantee depends only on its own requirements and this is the criterion according to which it distinguishes basically from the deed of trust.
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In this study the author carries out an analysis of the provisions mentioned in art. 898-902 of the new Civil Procedure Code (Law no. 134/2010, not yet in force) on the enforcement of court orders regarding the minor children, these regulations being derogatory from the common law of the enforcement, established for the first time in the Romanian laws, and consequently, without any correspondence in the Romanian civil procedure laws, still in force.
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Although it maintains the legal fusion system for sanctioning multiple offences, the new Criminal Code sets forth the obligation to apply a fixed increase to the hardest punishment, representing the third part of the total punishments inflicted for simultaneous offences. The author states that the provision of the amount of the increase of punishment in the content of the law does not allow the court to judge, as the case may be, depending on the number and on the grossness of the simultaneous offences and on the particulars of the defendant, the need and especially, the amount of the punishment increase. In order to avoid certain legal exaggerations which could result from the establishment and the application of the punishment increase, according to the new regulations for the observance of the principle of lawfulness of criminal sanctions and in order not to give the court the opportunity to apply the sentence of life imprisonment when it is not set forth for any simultaneous offence, the legal amendment of the provisions of art. 39 of the new Criminal Code, is required.
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According to the Labor Code (Law no. 53/2003, republished on the 18 of May 2011), the employer, under the pain of absolute nullity, cannot inflict any disciplinary sanction (except the written warning), without beforehand and compulsorily, performing a disciplinary investigation as well, by an individual authorized by the employer to this end. The minimum rules regarding the disciplinary procedure (namely, also those regarding the prior disciplinary investigation) are set forth in the Labor Code and are developed by the Internal Regulations of the unit. Such being the case, this kind of rules cannot be legally established in the collective employment agreement, no matter its level of negotiation (at the level of the unit, of the group of units or of the fields of activity), even if during the period 2007–2010 the national unique Collective Employment Agreement (terminated at present) regulated, against the law, a procedure regarding the (prior and compulsory) disciplinary investigation which included also provisions obviously contrary to the Labor Code.
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Law no. 221/2009 regarding political convictions and their related administrative measures issued during the period 6 March 1945 – 22 December 1989 in art. 5 paragraph (1) letter a) sets forth the payment of non pecuniary damages for the above mentioned persons, damages which are owed by the State. Subsequently, according to the Government Emergency Ordinance no.62/2010, the content of art.5 paragraph (1) letter a) of Law no. 221/2009, was amended so that the above mentioned non pecuniary damages were limited to the maximum amount of Euro 10,000 for the convicted person, respectively Euro 5,000 or 2,000 for the spouse or for the Ist or IInd degree descendants. Pursuant to two decisions issued by the Constitutional Court in the year 2010, the content of art. 5 paragraph (1) letter a) of Law no. 221/2009 was declared to be unconstitutional by the Constitutional Court (both the original content, and the amended content, pursuant to 2 decisions of the Constitutional Court). Such being the case, the author considers that following the submission of these two decisions of the Constitutional Court, the entitled persons cannot be granted non pecuniary damages any more, this being also valid for the litigations pending (not being settled finally until the publication of those two above mentioned decisions.
