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In the present study we have proceeded to analyze the text of Article 318 of the Criminal Procedure Code, in the light of the judicial practice in the matter. We also insisted on presenting some malfunctions in the application of the provisions of Article 318 (16) the 2nd sentence of the Criminal Procedure Code, provisions which in their essence prohibit the case prosecutor to adopt a solution to abandon criminal prosecution in the event that this solution was initially rejected by the preliminary chamber judge. The provision in question is all the more controversial as it is mentioned even therein this prohibition irrespective of the reason invoked, which leads to the conclusion that the solution to abandon criminal prosecution can no longer be ordered by the prosecutor, even if the evidence administered show that its adoption is required. In this context, the provisions criticized seem to be unconstitutional, because by applying them, the prosecutor is obliged by the legislator to violate several provisions of the Constitution, among which there is the principle of legality. -
In this article, the author analyzes the legal nature of the Constitutional Court, a political jurisdictional authority of jurisdiction, whose role consists mainly in controlling the constitutionality of laws and of other acts adopted by the Romanian Parliament and by the Government. The Constituent Assembly of 1991 opted for the institutionalization of the European model of constitutional jurisdiction, according to which a body independent in relation to the powers of the State assumes the role of guarantor of the supremacy of the Constitution. The constituent legislators have preferred to abandon the control of the constitutionality of laws enforced by the supreme court, which was established by the Fundamental Law of 1923. In the constitutional architecture of the Romanian State, designed after the change of the political regime at the end of 1989, the Constitutional Court is a political-jurisdictional body whose legal nature derives from the way in which it is organized and structured, as well as from the attributions conferred to it by the Constitution. At the same time, the Constitutional Court also appears as a regulating body of the public authorities with governing powers in the state, which it obliges, through its decisions, to return to the constitutional legality. The author highlights both the political and the judicial nature of the Constitutional Court and shows that there must be a balance between the two essential characteristics of this public authority, in order for it to fulfil its constitutional role in a complete independence and impartiality and not to transform itself into a political tool for solving the relations between powers, especially between the legislative power and the executive power, which should benefit to one or another of the political actors.
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The regulation of the profession of physiotherapist was made in Romania by the Law No 229/2016, which also established the College of Physiotherapists from Romania, as a professional organization, of public interest, having as object of activity the authorization, control and supervision of the exercise of profession of physiotherapist. In this article there are presented aspects regarding the outlining of the notions of physiotherapist/kinetotherapist, regarding the content and organization of the profession of physiotherapist by the new regulations, as a liberal profession of authorized public practice. In the present study it is analyzed the context in which it was adopted the Law No 229/2016, at a time when the status of the profession of physiotherapist was not regulated, at a time when the County Public Health Directorates issued authorizations for free practice which authorized persons licensed in other fields (physical training and sports), there are emphasized the current conditions for issuing the free practice authorization for physiotherapists. The study presents aspects regarding the recognition of the diplomas and qualifications at European level and the mobility of the profession of physiotherapist, as well as aspects related to the introduction of a European professional card and to the possibility of issuing the certificate of conformity. There are presented aspects concerning the compensatory measures designed to eliminate the important differences in programs specific to physiotherapy. In his activity, the physiotherapist must comply with the Code of Ethics of the Physiotherapist and the Status of the College of Physiotherapists from Romania. Elements of novelty regarding the malpractice in physiotherapy are presented, with connections to the experience gained in the sphere of medical malpractice, including with references to the subjective foundation of the civil liability of the medical staff.
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The article deals with the legal regime of the convict’s money, their sources of origin and the destinations for their use during detention, in the Romanian criminal law and jurisprudence, bringing to light some proposals aimed at improving the situation of some categories of detainees in a state of economic precariousness. The objectives of the article are to determine the content of the notion of convict’s money in the current Romanian legislation, their sources of origin and the destinations for their use during detention, as well as to determine whether the current Romanian legislation complies with the requirements of the international instruments and whether the chosen legislative solutions are similar to those in other European states. The results show that the notion of prisoner’s money should include the money due to the convicted for the work done in prison, the sums received from natural or legal persons during detention and the amounts found upon them at the arrival in the penitentiary. It can be concluded that the amounts of money shown in the nominal account can be used for extinguishing the civil obligations established by the criminal conviction decision, without violating the rights of the detainees to receive, buy and possess goods, the right to telephone conversations, the right to petition and correspondence, the right to food, personal hygiene, the right to photocopy documents from the individual file and the right to medical treatment. The results also show that the present Romanian legislation regarding prisoner’s money complies with the international rules, such as the „Nelson Mandela Rules”, the U.N. Convention against torture adopted in 1984, ECHR/the Convention or the European Penitentiary Rules REC (2006)2, and it is similar to the legislation of other European states, such as France, Italy, Spain, Portugal, Germany or Austria, regarding the sources from which this money may be legally obtained, and the destinations for which this money may be used. In the case of those detainees who do not obtain income from work, it may be beneficial for a regulation to provide, within a reasonable limit, an exemption from the attachment of their money. For all inmates who do not have income, provisions should be made for the prison administration to bear, within a reasonable degree, the cost of national telephone calls made by convicts in order to keep in touch with their family. The implications are to clarify the issues discussed, facilitating a unitary practice, supported by solutions in the jurisprudence.
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According to the provisions of Article 260 paragraph 2 of the Criminal Code of 1968 [Article 273 (3) of the Criminal Code], both the „active” false testimony (the situation in which the witness gives false statements) and the „passive” false testimony (in which case the witness does not say everything he knows about essential circumstances he was asked) may be withdrawn, with the mention that, in the latter case, the witness must provide full and real details, which he perceived directly, which were essential and of which he was asked. In order to constitute a cause of non-punishment, the withdrawal of the false testimony must be carried out in the case in which it was given, and not in the case in which the criminal prosecution is conducted or in which the offence of false testimony is examined.
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The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms.
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The present study analyzes the working hypotheses in the matter of the preliminary procedure regarding claims from European funds. The study identifies a number of working scenarios, starting from the particular way in which these claims arise, specific to European funding mechanisms. Another filter in the analysis is given by an irregularity in the management of funding, an irregularity that is treated differently as it appears before or after the payment, taking into account the variable, if it generates a debt to be recovered from the European Union budget/international public donors and/or national public funds related to them through an undue payment. Thus, the study observes a series of nuances in the hypothesis of undue payments, similar shades of contentious type to tax procedures1.
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The present study aims to give an answer to the legal framework regarding the possible staff reduction followed by dismissal, measures that would have as sole purpose to increase the profit of the employer. Against the background of the ambiguity of Article 65 of the Labour Code, it is considered that such a measure is rationally possible only if the employer has a profit that is below the level of the average profit existing in the sector/field of activity (a situation that can be evaluated in relation to the financial data from the Trade Register Office and with the data that is published periodically by the Ministry of Public Finance). Only in such a case the condition of the real and serious cause is met.
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The verification of scripts is an incident in relation to the literal evidence, more precisely a procedure to which it is subjected a contested written document under private signature. The contested written documents under private signature may be subjected to a verification procedure either by principal way, by a preventive action, having exclusively such an object, or by incidental way, during a trial. The verification of the written document under private signature, by principal way, is admissible, under the conditions of Articles 359–363 of the Civil Procedure Code, if there was not or there is not a trial pending in which that written document had been opposed or is being opposed. Instead, the verification of the written document under private signature, by incidental way, is regulated in Articles 301–303 of the Civil Procedure Code, whose provisions are the object of this study. Article 301 of the Civil Procedure Code regulates the attitude that must be manifested by the person to whom such a written document under private signature is opposed, given that such a written document has no evidentiary power unless it is expressly or tacitly acknowledged or if it is declared as being truthful after being verified by the court.
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The judicial administrator will submit a monthly report containing the description of how he has performed his duties, an account of the expenses incurred with the administration of the procedure or of other expenses made from the funds existing in the debtor’s estate, as well as, if necessary, the stage of performing the inventory. The report will also mention the fee received by the judicial administrator, by specifying modality of calculation thereof. The report will be submitted to the case file and an extract shall be published in the BIP. Every 120 days, the syndic-judge will analyze and rule on the stage of continuation of the procedure, through a resolution by which he will be able to establish certain measures as duty of the judicial administrator and he will grant an administrative term of control or of trial, as the case may be. In the event that there are contentious or non-contentious applications, as well as in the hypothesis in which the syndic-judge deems it necessary, he will order the urgent summoning of the interested persons and of the judicial administrator, for the purpose of solving the applications or for ordering the necessary measures.
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The need to analyze the condition of guilt in engaging the legal liability of the physician does not result only from the ECHR Judgment in Ioniță Case, which ruled that the physician’s liability itself is based on the notion of medical negligence, but especially because of its specific aspects. According to recent practice, the intensity of medical guilt in the degree of culpa levissima is able to lead to de facto exoneration from criminal liability (through a symbolic sanction) in order to focus on repairing the victim’s prejudice. The consequence of changing the vision on the medical legal liability from a punitive-criminal liability of the physician to a reparative liability facilitates the perception of the French conception of the contractual liability of the health unit. This does not remove the personal liability of the employed physician, but limits it to a psychic attitude of elusion of the system of cooperation and control of the health unit, which brings it closer to the indirect intention. Hence the need to distinguish between indirect intention and guilt with forethought (recklessness), which in its turn is different from guilt without forethought (negligence).
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În lipsa unui probatoriu care să demonstreze existența unei activități autonome a inculpaților de inițiere, respectiv constituire a unei grupări infracționale, activitate care să rămână distinctă de comiterea infracțiunii ce a constituit scopul acesteia și care să vizeze organizarea acțiunilor infracționale, prin fixarea modalității și a coordonatelor de săvârșire a acestora, precum și a sarcinilor și rolului fiecărui membru în cadrul grupării constituite, fapta capătă valențele juridice ale pluralității ocazionale, prevăzute de articolul 77 lit. a) C.pen.
