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In the above-mentioned study, the author, bringing to discussion a number of provisions included in the recently adopted Law no. 202/2010 on certain measures to accelerate the settlement of trials (usually called, the Law of the “small reform” of civil procedure) detects a number of inconsistencies between some provisions of this law and the future new Civil Procedure Code (Law no. 134/2010), adopted by the Parliament, published in the “Official Journal of Romania” on 15 July 2010, but, unfortunately, not yet in force), inconsistencies that, inexorably, will generate difficulties and complications upon the entry into force of the new Civil Procedure Code. -
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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Potrivit art. 145 alin. 12 lit. f C.pr.pen., organul judiciar care a dispus mãsura preventivã a obligãrii de a nu pãrãsi localitatea poate impune învinuitului sau inculpatului ca pe durata mãsurii „sã nu exercite profesia, meseria sau sã nu desfãșoare activitatea în exercitarea cãreia a sãvârșit fapta”, și anume sã nu-și exercite atribuțiile de primar (cu notã criticã).
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O cerere în constatare vizând obținerea unei hotãrâri judecãtorești care sã fie opusã organelor fiscale și în temeiul cãreia sã se beneficieze de scutiri la plata impozitelor pe terenuri și clãdiri nu poate fi primitã întrucât art. 111 C.pr.civ. condiționeazã formularea acțiunii în constatare de inexistenþa unei acțiuni în realizare (Înalta Curte de Casație și Justiție, Secția comercialã, decizia nr. 952 din 9 martie 2010).
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In the following study, the author criticizes the legal regulations in Romania (mainly the Civil Procedure Code and the Criminal Procedure Code) strictly limiting the cases of abstention and recusal of judges, proposing in the end that, in addition to these, it should be generically provided that the abstention and recusal shall also act in any other situations in which the objectivity and impartiality of the judge may be questioned.
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The institution of conditional release under judicial control regulated in Title IV, Chapter I, Section V of the Criminal Procedure Code, has been analyzed succinctly in the Romanian specialized legal literature. The problems arising in the context of erroneous interpretations given in practice to the legal texts regulating this institution by the courts of law derive, according to the author’s opinion, from the insufficient approach at doctrinal level of the way in which the conditions under which this measure can be ordered should be interpreted. Of course, the situation should also be analyzed in the light of the particular situation of each case. Thus, the article written by the author intends to analyze the conditions under which conditional release can be ordered after addressing an actual situation submitted to judgment by the courts.
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SECȚIILE UNITE, deliberând asupra recursului în interesul legii, constatã urmãtoarele: În practica instanțelor judecãtorești s-a constatat cã nu existã un punct de vedere unitar în aplicarea dispozițiilor art. 105, cu referire la art. 10 din Legea nr. 46/2008 privind fondul forestier proprietate privatã a persoanelor fizice sau juridice.
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Starting from the Decision no. 1.105/2010 on the exception of unconstitutionality of the provisions of the Government Emergency Ordinance no. 63/2010 for the amendment and supplementing of Law no. 373/2006 regarding the local public finances, as well as for establishing some financial measures, by which the Constitutional Court ruled that the subsequent effective dates of certain provisions of the emergency ordinance do not invalidate the urgent and extraordinary nature of the situation being regulated, the study examines the matter of the coming into force of emergency ordinances, in the light of the constitutional provisions and the provisions of Law no. 24/2000 regarding the norms of legislative technique for drafting regulations (republished). The study also presents a situation regarding the effective date of the Government Emergency Ordinances, starting with the year 2004 (subsequent to the revision of the Constitution).
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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.
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1. Principiul nullum crimen, nulla poena sine lege. Reguli generale. Drepturile fundamentale fac parte integrantã din principiile generale de drept a cãror respectare este asiguratã de cãtre instanțele europene în cauzele de concurențã, ținând cont în special de Convenția (europeanã) pentru apãrarea drepturilor omului și a libertãților fundamentale (în continuare denumitã Convenția) ca sursã de inspirație.
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While the matter of the restoration of real estate abusively seized by the communist state has raised a special interest, both from individuals and from authorities, the subject of the restoration of movable cultural property remained relatively marginalized until the coming into force of Law no. 182/2000, which provides the persons entitled with the possibility of an action for special recovery of movable property, for the purpose of recovering ownership over the movable cultural property illegally seized by the State. This study intends to examine this matter, focusing on the essential aspects of the action for special recovery of movable property put into operation by the lawmaker.
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Although the administrator of the association of owners or tenants can also commit the offense of embezzlement by the acquisition of surpluses created in his/her management by fraudulent means, he/she can be sued only for embezzlement and not for having committed the offense of creating surpluses in management as well. This study analyses whether the administrator has the capacity of manager according to the provisions of art. 1, parag. (1) of Law no. 22/1969 and presents the reasons why the administrator cannot be an active subject of the offense of creating surpluses in management by fraudulent means, although he/she is an employee, due to the fact that he/she is employed with an individual employment contract and has as main work tasks the management of the property and values of the association of owners or tenants.
