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According to the monist conception regarding the private law, the current Civil Code (Law no. 287/2009) inserted in the scope of its regulation the trade, including bank agreements – the current bank account, the bank deposit, the credit facility, the rental of safety deposit box for valuables. The specificity of the scope, mainly, „the publicity” and the reiterative nature of banking operations, left the essential, not only the technical aspects, within the scope of special regulations – prevalent, numerous and difficult to be codified. This study reveals the items set up by the current Civil Code regarding the typically bank agreements, the more so as no substantial right of them has existed until the adoption of this legislative instrument. -
In this study, the author analyzes the scope of Regulation (EC) no. 593/ 2008 of the European Parliament and of the Council on the law applicable to contractual obligations (also called “Rome I”) in individual contracts of employment having an extraneity element, taking into account that the provisions of this regulation are mandatory applicable in Romania, with a view to Art. 148 paragraph 2 of the Constitution and Art. 2640 of the Romanian Civil Code (Law no. 287/2009 republished). -
In this study the authors make an approach that highlights the lack of harmonization between organic laws and the post-December period constitutional laws, in relation to regulating the free use right with referring to the public property, primarily, and the private property of the state/territorial-administrative units, in subsidiary; then the legislating of the new Civil Code which fully ceases the unconstitutionality status; and finally several aspects of specific administrative technique are being addressed. -
This study examines the issue of the joint security of creditors over the debtor’s patrimony in the light of art. 2324 of the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011 and entered into force as at October 1st 2011), with a special regard concerning the mentioned issue in case of establishment of patrimonies of affectation over the joint security of creditors. -
In this study, the author makes a relatively exhaustive analysis of the provisions of Articles 1221 to 1224 of the new Romanian Civil Code (Law no. 287/2009, republished on July 15, 2011 and effective since October 1st 2011) stressing the differences - substantive - between regulations on damage (as vice of consent) in the present Civil Code and in the previous Civil Code (of 1864). -
The relatively recently legal notion of imprevision brought under Romanian regulation by the new Civil code that came into force October 1st, 2011, is expected to be subject of numerous specialized analyses in order to clarify the various aspects that make up its identity, characteristics and effectiveness. Following the purpose described here-above, this study aims especially at conjugating the theory of imprevision with the copyright transfer agreement. The article hereafter contains standpoints and de lege ferenda suggestions in relation to the party entitled to institute the legal proceeding relative based upon the imprevision theory, the criteria to be observed in order to adopt a solid legal settlement in this respect, the contracting parties and the court’s role in interpreting and applying the imprevision theory. -
Starting on October 1, 2011, the new Romanian Civil Code (Law no. 287/ 2009, republished on July 15, 2011) entered into force and, as of February 1, 2013 the new Romanian Code of Civil Procedure (Law no. 134/2010, republished on 3 August 2012) shall come into force. Both the above mentioned codes are being developed by Law no. 71/2011 for the implementation of the new Civil Code, and respectively by Law.76/2012 for the implementation of the new Code of Civil Procedure. The new regulations introduced in the Romanian legislation the concept of guardianship court but until the entry into force of such court its powers which are set out in the new Civil Code shall be exerted by the courts, sections or, where appropriate, the existing specialized juvenile and family panels. Unfortunately, during 2011-2012, the regulations in the new Civil Code, the new Code of Civil Procedure and the two laws for application thereof, as being amended and supplemented several times, the guardianship court relevant legislation is confusing at the present time, thus its transposition in practice is difficult. That being the case, the author attempts in this study to solve a number of problems arising from the situation described and to make some proposals with a view to the future law. -
The author, without claiming to exhaust the subject, drew up this study in the attempt to start a theoretical discussion, but with practical implications as well, regarding the real concurrence of offences between the aggravated thefts committed under the circumstances provided by art. 209, parag. 1, letter i) of the Criminal Code, namely by breaking, escalade or use without right of a real or false key and the trespassing provided by art. 192 of the Criminal Code. -
The author explains in detail the concept of “civil servant”, according to the interpretation of the provisions of art. 175 of the new Criminal Code adopted by Law no. 286/2009, attempting to reveal both the merits and the limitations of the interpretative rule examined contextually. The author examines each of the categories of persons falling, according to the lawmaker’s wish, under the notion of “civil servant”, which he accompanies with examples, at the same time mentioning numerous decisions of the courts of law keeping their validity in relation to the provisions of the new Criminal Code as well. In the end, following the analysis made, the author reaches certain conclusions and formulates some de lege ferenda proposals aimed at improving the text examined.
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The principle of loyalty of evidence is a jurisprudential principle of the European Court of Human Rights. The author intended to provide an overall presentation of its evolution, both from the case law perspective and from the legislative point of view.
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In this study, the author proves that the owners’ association does not have the legal capacity to acquire land intended to be used by the association members as parking lots or for ensuring access to the building where the individual dwellings of the members are situated. In this respect, it is claimed that the legal documents for the acquisition of such land by the association are subject to absolute nullity, since they infringe the principle of specialty of the legal entity’s usage capacity, established by art. 34, parag. 1 of Decree no. 31/1954 regarding individuals and legal entities. Consequently, it is concluded that the use of land having the above-mentioned destinations may be acquired by the owners in a condominium only by legal documents concluded in their own names. -
Law does obviously not benefit from the privilege of having its own exhaustive language. We might say that most concepts used in law are borrowed from other branches of knowledge. The quite rare concepts that are its own often do not receive a definition that can be classified, according to the methodology of the act of definition itself, as “legal”. The amalgamation of legal terminology with the economic, political, sociological or philosophical terminology, without revising the concepts and without their clear understanding in the areas of knowledge from where they come makes the doctrine and the case law too often flat and stereotyped, if not even chaotic from the conceptual point of view. Lawyers are no longer seen as persons of learning, who try to explain the nature of things through justice, but as simple technicians, who apply concepts taken from other social-human sciences. Under these conditions, one of the fundamental problems for lawyers is to explain a fact that seems to be overlooked by our current culture: what is meant by a legal concept? Afterward, it becomes equally important to understand the way in which the non-legal concepts used in law should be revised, namely what the standards of the legal definition of concepts are. The above-mentioned article attempts to answer to these challenges.
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Fundamentally, all intentional crimes may be under continuous form, the forest offence being one of them. In practice, we come across various ways of committing forest offences, through a single action or multiple actions, which may meet, separately or conjunctively, elements of the crime of illegal cutting or theft of trees, but usually, when the criminal offence is committed in a longer period of time, twice or several times, without considering whether each single action meets the constitutive elements of the crime for which the defendant is prosecuted, Art. 41 para. 2 of the Criminal Code shall apply automatically. Authors’ analysis refers to the offence’s content unit, namely that the execution deeds of the same kind must submit each the content of the same offence. In legal practice it was decided that there is no requirement that the execution deeds should be identical, but each to cover the contents of the same offense, even if some of them correspond to the variant type and the other to the qualified one and, therefore, in the test case reviewed by the authors it was enough to evidence the existence of two or more trees cutting and stealing acts carried out at different intervals, each causing a damage which exceeds the threshold value for which the act stands for a crime and it was not required that for each of them, the damage caused and the value of timber, respectively, exceed at least 50 times the average price of a cubic meter of standing timber, on the offence’s finding date. Therefore, in order to determine the continuous nature of the act, it is required to administer evidence that should establish the volume of timber (for the offense of theft), and the amount of damage (for the cutting offence), for each action – execution deed, respectively its petty offence or criminal nature. -
Law no. 1/2011 on the National Education, effective since February 2011, under Art. 289 regulated anew the regime on the legal relationships of employment after retirement age for teaching and research staff in higher education in Romania (public, private or religious). In this respect, the above mentioned bill, after having established the principle that this staff shall retire at the age of 65, sets to rights terms under which academics and researchers may continue their activity in higher education establishments, following retirement. Study hereby is to review these terms.
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Examining the issue of the parents’ right to agree to their child’s journey in the country (in Romania) or abroad, after reviewing the legal regulations in this matter, the author reaches the conclusion that art. 18, paragraph 2 of Law no. 272/2004 (“Any journey made by children in the country and abroad shall be made subject to notification and consent of both parents; any disagreements between the parents in relation to expressing such consent shall be solved by the court of law”) provides for situations in which the parents exercise their parental rights together, while art. 30, paragraph 1, letter c of Law no. 248/2005 refers to the situation in which parental protection is divided pursuant to a court order (following divorce etc.). At the end, the author proves that the provisions of the new Romanian Civil Code (adopted y the Parliament and published in the Official Journal of Romania, but not yet effective) do not influence the above-mentioned legal regulations. -
With the view to overcome the lack of celerity in the conduct of criminal trials, the initiators of the new Code of Criminal Procedure explicitly intended to depart from the extraordinary remedy of appeal for annulment. However, although the code was adopted under the Government’s liability, the legislature has maintained this opportunity to repair final criminal judgments affected by errors. Code’s editors have thought abandon of the litigious remedy, transferring its role and cases of its raising to other extraordinary remedies. But the author points out that the experiment has not been designed fully rigorously, so that a number of hypothetical situations, consistent enough, remained outside the cases provided by law for the performance of extraordinary review procedures. Under the new code system, the appeal for annulment was integrated in a chapter distinct from the review procedures chapter, i.e. after the appeal, as an emphasis on the concept of being within reach of the parties to pursue against final judgments passed in the court of this relevant resort. -
The author considers, in this study, that, in case of medical malpraxis in the public health system, it is the Romanian state which has patrimonial liability to the victim patient (through the medical service provider – public institution), according to the Administrative Dispute Law no. 554/2004, and the doctor in default (employee of the medical service provider) shall have a patrimonial liability to such provider (his/her employee), as set forth by article 270 et seq. of the Labor Code. -
The article approaches the offence of “patrimonial exploitation of a vulnerable individual” under the provisions of Article 247 of the new Criminal Code. On these lines, the author conducted a thorough review of its legal content and highlighted issues of procedural nature. Likewise, there are also expressed critical opinions on how the legislature sought to regulate the offence’s conditions of existence, likely to severely limit its factual scope thereof. -
Promoting the conception according to which material evidence should be exclusively reserved for civil procedure as evidence is fulfilling its main role in trial, the author stresses that the new Civil Code achieves the unification of evidence regulation in civil matters, by including this regulation in art. 243-382 of the new Civil Code, a salutary solution, in accordance with the majority opinion of the doctrine. The Legislator, based on the new Civil Code, preserves part of the evidence regulations of the previous Code, but also embracing solutions adopted in the Civil codes of other states, such as, for example, the French, the Canadian province of Quebec or the Swiss Civil Code. Of course, the new Civil Code includes innovative solutions that the author deems useful and necessary, such as those relating to admitting as evidence documents stored on computer media or those regarding material means of evidence. -
Taking into consideration the provisions of art. 1385, paragraph 4 of the new Romanian Civil Code (adopted and published in 2009, but not yet effective), according to which “if the illicit action caused the loss of the opportunity to gain an advantage, the remedy shall be proportional to the probability of gaining such advantage, by also taking into consideration the circumstances and the actual situation of the victim, and by considering the rich French case law in the field (in the matter of medical liability) the author believes that, in Romania, tort liability could exist even at present (in particular in case of malpractice, as regards medical liability) following the damage caused by losing the opportunity to gain an advantage. For this reason, the author presents in detail the compensation conditions for such damage. -
The continuous evolution of the social-economic life and the diversification of the forms of action of criminal groups have required, both as regards criminal offences and domestically, the regulation of the criminal liability of the legal entity. Since crime, in general and economic-financial crime, in particular, is continuously growing, the indictment of the legal entity as active subject of the criminal offence was considered useful. The Romanian lawmaker also did this, first, by amending the Criminal Code in operation by means of Law no. 278/ 2006 and then by drafting a new Criminal Code, according to the European democratic legislation. Given the importance of this institution for the Romanian criminal legislation, we considered useful to make a demanding radiography of this issue. -
In this study, the author examines the constitutional and legal statute of the Romanian Court of Accounts, according to art. 140 of the Constitution of Romania (revised and republished on 31 October 2003), corroborated with a series of provisions contained in Law no. 94/1992 for the organization and operation of the Court of Accounts, as republished, for the second time, on 29 April 2009. To this effect, the authors examine the constitutional and legal statute of: the counselors of accounts; the personnel making up the executive management of the Court of Accounts and the Audit Authority, as well as the specialized personnel of the Court of Accounts (external public auditors).
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This study represents, in its essence, a micro-monograph regarding the right to image, a component of personality rights. In this respect, following a presentation regarding the “personality rights, in general”, the authors examine in detail the issue of the right to image (notion, basis, autonomy of the right to image, consent to the reproduction of one’s image, limits of the right to image, image contract, extinguishment of the right over image). -
This study, having as theme general and special observations regarding the new Romanian Civil Procedure Code (Law no. 134/2010), after some brief preliminary observations, proceeds to a more thorough analysis of the fundamental themes of this Code, namely: the accentuation of procedural liberalism; the quality of the civil procedure law; the right of access to justice; the uniform interpretation and application of the law by the courts; celerity in the civil trial; accentuation of the effectiveness of remedies at law; higher-quality valorization of enforcement orders.
