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Legal circulation of lands involved the need to adopt a law. Law No 17/2014 on the sale of agricultural lands from unincorporated areas is problematic, at least as it regards the conditions for acquiring lands and property rights in the way of establishing the pre-emption right. -
Our paper suggests exploitation of interrogations such as rationality is a concept: primitive, as is customary? tautological, „is what we all know it”? monolithic, homogeneous substance? immutable, not counting history, man, practice and does not support self-critical approach? operational tool to be opposed to uncertainty assessment values? mystifying, justifying postfactum a social action animated by various motives? illusory, utopian even, because every time intelligibility is surpassed by reality? The conclusions of our research reveals that juridical rationality should not ignore the experience of rationality but no specific legal phenomenon. It is multidimensional and confirms its status only if it is based on logic and the history and practice of integrated social experience, procurement of modern science, gives satisfaction to the human condition this historic time, does not ignore the contradictions within juridical life, aspiration for interrogation, foresight and creativity. -
The author discusses the close correlation between the regulation of competition and the regulation on the protection of the consumers’ interests, involving some difficulties in distinguishing between them. That is why there is the tendency that some regulations protect both the ensuring of competition and the consumers’ interests, this ambivalence emphasizing the importance that is given in the contemporary society to the consumption law, which justifies a whole series of derogations from the principle of freedom of trade. Discussing this issue involves an examination of both the regulation of the contractual obligations and the regulation of the commercial practices. The consumer who wants to purchase a product usually has a double handicap: knows too little the characteristics of the product that is being offered and, as such, is often in the position to sign a previously elaborated contract which he can not control or understand. So it was necessary the intervention of the legislator, imposing the obligation to inform every consumer, being prohibited to stipulate unfair terms. As far as the regulation of the commercial practices is concerned, the same conclusion is drawn, namely that a consumer is exposed to a double risk: that of being deceived about the nature or the characteristics of the goods which it acquires, as well as that of being incited, by fictitious or illusory promises, to buy or to resort to the supply of a service. Consequently, the legislator has stepped in by elaborating regulations both in relation to the illegal commercial practices and with regard to the commercial publicity. The author of this article presents all these aspects having in view the scale of the legal situations that can arise and the required solutions.
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The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional rules. Guaranteeing the respect for this principle, being essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the normative acts adopted, in content and form, the constitutional rules. The entry into force of the new criminal codes has generated a significant case law of the Constitutional Court concerning the verification of constitutionality of some regulations of the Criminal Code and of the Criminal Procedure Code. Through this study we intend to analyze the following more important aspects: a) how the constitutional principles and values have been materialized in some criminal rules and criminal processual rules of the new codes; b) the effects of the decisions of the Constitutional Court in the process of constitutionalisation of the criminal law; c) applying the decisions of the Constitutional Court in the judicial activity, especially those which have established the unconstitutionality of some regulations in the new criminal codes.
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In this article, the author intends to analyze, by comparison, the terms domicile and residence, as they are used by the constituent legislator in Article 27 of the Constitution, as well as by the Civil Code and the Criminal Code in force. The author points out that the terms of domicile and residence, used in the civil legislation as attributes of identification of the natural person, are different from those covered by the doctrine of criminal law and by that of constitutional law, in the light of the protection of the inviolability of the home of a person, as a legal instrument for the respect of the freedom and private life of persons. The author demonstrates that the purpose of establishing the inviolability of the domicile by constitutional rule is to ensure the respect for the private life of individuals. Particular attention is given to the problems of constitutionalisation of the inviolability of the domicile, as well as of the European protection of the right of every person to the inviolability of their own homes. The author also presents the constitutional guarantees of the inviolability of the domicile and of the residence and how they are materialized by the criminal procedure rules.
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The judicial practice in the matter of representation, including in that of the Supreme Court, reveals difficulties in interpreting Article 84 (1) of the Civil Procedure Code. A poor interpretation thereof, by ignoring ratio legis, creates a gap for the illegal practice of the specialized legal professions. In the same context, it is necessary to distinguish between the plea of lack of evidence of the quality of representative and that of illegal representation, and the latter must be preceded by the plea on the nullity of the contract from which the judicial mandate arises.
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The author analyzes the territorial jurisdiction of the court to settle the actions for annulment of the decisions of invalidation or for amendment of the settlement decisions issued by the National Commission for Real Estate Settlement pursuant to the Law No 165/2013, appreciating that it lies with the civil section of the Bucharest Tribunal, as the court in whose district it is located the headquarters of the entity issuing the contested act. The term „entity” within Article 35 (1) must be understood in relation to the provisions of Article 3 points 4 and 5 of the Law No 165/2013, which enumerates the entities involved in the restitution procedure in various stages thereof, as well as the document issued by these entities.
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In this study, the author analyzes the practical implications of the amendments brought to the Civil Procedure Code by the Government Emergency Ordinance No 1/2016, following the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code by the Decision of the Constitutional Court No 895/2015. After a brief historical presentation of the legislative events that have led to the current situation regarding the approval of enforcement, the author, by examining the effects of the Decision of the Constitutional Court No 895/2015 and of the Government Emergency Ordinance No 1/2016, identifies the categories of situations that may arise in the practice of enforcement.
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In this study the author, after making certain considerations on the concepts of human rights and world order, in the context of globalization, as well as of the trends of globalization of law, points out to the necessity to undertake some urgent actions in order to proclaim, establish and, mostly, guarantee the human rights and fundamental freedoms worldwide. In the author’s opinion these legal rules which have the consent of all States would represent, along with solving the contradictions between the international economic system with a quasi-global organization and the prevailing political structure of the human society which is at state level, a starting point in achieving a real world order, in compliance with the current stage of the socio-historical movement and with the challenges of the 21st century.
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On 1 April 2016 there were celebrated 150 years since, by Decree of the Princely Lieutenancy, it had been approved the Regulation for establishing the Romanian Literary Society, with the special mission to determine the spelling, to elaborate the Romanian grammar and to start and develop the Romanian dictionary, thus representing „the act of birth” of the national academic institution. Transformed in 1867 into the Romanian Academic Society, it opened its area of concerns, along with literature and philology, to history and natural sciences, following that, by the Law of 1879, it would acquire legal personality and become „national institute” under the name of Romanian Academy. Over a century and a half of uninterrupted activity, the Academy was the major factor of enforcement of the Romanian spiritual unity, „the vital centre” of irradiation and promotion of the national science and culture. In this context, the law has been and still is at the same time foundation, form of culture, field of scientific knowledge, value of expression of the academic concerns, and the jurists, some of its most devoted promoters. Under the terms of transformation of the university into a setting almost exclusively for transmitting knowledge and skills of training of future professionals of law, the only forum for conducting the fundamental legal research and for the development of the science of law remains the Legal Research Institute of the Romanian Academy. In order to play such a role it must redefine its mission and re-establish its priorities, so as to provide the proper setting for the legal reflection and for the achievement of theoretical projects that should lead to the crystallization of the new Romanian doctrine of the law. -
International agreements constitute a category of legal acts within the European Union (EU). They are concluded by the EU acting alone or jointly with Member States depending on the provisions of the founding Treaties. With the entry into force of the Treaty of Lisbon, the European Union (EU) acquired legal personality. It is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf. The external competences of the EU are defined in Article 216 of the Treaty on the Functioning of the EU. The division of competences between the EU and Member States is also expressed at international level. The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.
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Constitutional case law has got an important influence over the normative regulations and the legal system in general, due to the multitude of ways in which the Constitutional Court can intervene in order to modulate and harmonize legal provisions and the authorities’ actions with the rules and principles enshrined in the Basic Law. The risk of sanctioning the disregarding the constitutional exigencies, either in terms of formal conditions or in what concerns the fund rules, is a factor of accountability of the legislature. Therefore, the role the constitutional review plays in increasing the quality of laws and its positive effects on the lawmaking process should reinforce the importance of the Constitutional Court in the institutional state’s architecture.
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Within this study the author presents us some essential points of reference regarding the present situation of the legal education and its prospects for recovery. The author’s approach starts from the finding that education at all levels is in a period of crisis, despite the legal framework developed over the last years and materialized, mainly, in a new national education law. The explanations of the crisis in our legal education are multiple, the author making special reference to the unjustified proliferation of the private legal education and to the existence of a disproportionate relation between the public and private faculties of law. A particular importance is also given within this study to the teaching staff of the university education. The author pleads, in essence, for the financing of the education institutions in relation to the performances achieved, for setting some high standards of promotion of the teaching staff within the legal education and for a more exigent regulation of the incompatibilities and of the conflicts of interest.
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The paper aims to emphasize the consequences of the Judgment Costanzo pronounced by the Court of Justice in 1989 on the competences and powers of the public administration authorities, when these authorities are acting within the scope of application of the European Union law. From the perspective of the persons of private law directly concerned, the paper makes available to them the manner in which they can invoke the Union law – as a right opposable against the national administrative authorities – without requiring the intervention of the courts to obtain the removal from the application of the measures of national law contrary thereto. -
This scientific approach debates and proposes solutions for a problem of judicial practice also reflected in the doctrine of speciality, namely whether it subsists the offence of tax evasion provided in Article 9 (1) b) or c) of the Law No 241/2005, whose active subject is a legal person, in case of absence of the accounting records of the taxpayer. The author’s certain conclusion is based on arguments related to the legal text and which the practice has embraced as a corollary, and he proposes a solution in the sense that the judicial bodies may analyse that all the constituent elements of the reference offence are present even in the absence of the documents of accounting records. Likewise, the article also deals tangentially with a possible problem related to the constitutionality of a legal phrase that is part of the constituent elements of the offence of tax evasion and criticizes the redundant and incoherent phrasing of the legislator.
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Within this article the author presents the main opinions which were expressed in the literature of speciality on the matter of deviated offence. This reveals that there is no unitary point of view referring to this institution, three opinions being expressed in the matter. According to a first opinion it is deemed that the deviated offence concerns an apparent plurality of offences (natural unity), whether we refer to error in personam/error in objecto or to aberratio ictus. According to a second opinion, in case of deviated offence, regardless of the form it takes, there is a real plurality of offences, in the form of concurrence of offences. There is also a third opinion that, in the case of error in personam/error in objecto, it should be noted the existence of a single offence, while in case of aberratio ictus it should be noted the concurrence of offences. The judicial practice in Romania, in order to avoid any problems that might occur, has opted to note the perpetration of a single offence, both in case of error in personam and in case of aberratio ictus.
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The study intends to provide an overview of a recently established public institution, namely the National Agency for the Administration of Seized Assets. Its establishment was an objective included in the National Anti-corruption Strategy for 2012–2015, approved by the Government Decision No 215/2012. The analysis will focus on aspects concerning its general status, structure, personnel and it will be made from a critical perspective on some legal provisions inclusively. In this way, we will try to draw attention to some deficiencies of the regulation, by proposing solutions which hopefully will be considered in the future.
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The disciplinary misconduct related to the „non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, as well as the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment”, regulated by Article 99 i) of the Law No 303/2004 on the by-law of judges and public prosecutors, was introduced by the Law No 24/2012 amending and supplementing the Law No 303/2004 on the by-law of judges and public prosecutors and the Law No 317/2004 on the Superior Council of Magistrature; it could not be found in the original version of the Law No 303/2004, nor in the Law No 92/1992 on judicial organization. The material element of the objective side of the disciplinary misconduct regulated by Article 99 i) of the Law No 303/2004 includes two distinct hypotheses: the first hypothesis has as object the non-compliance with the duty to abstain when the judge or the public prosecutor knows of the existence of one of the causes provided by law for his abstention, and the second relates to the filing of repeated and unjustified applications of abstention in the same case, which has the effect of delaying the judgment.
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Important matters of law generate the verification of the legality of the acts of the legal persons of private law specified in the title. Such verification, as revealed by the judicial practice in this matter, involves the relation of the theory concerning the legal acts within the scope of public law to the corresponding theory within the private law. This interdisciplinary approach is necessary in order to correctly identify the conditions of validity related to the legal acts qualified as being acts of authority, given their nature, purpose and addressees.
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The new Fiscal Code and the new Fiscal Procedure Code harmonized with the European Union legislation have brought significant mutations in the development of the relations of fiscal law and of fiscal processual law between the public tax authorities and the taxpayers/payers. These relations of fiscal law and of processual fiscal law have as their primary foundation the fiscal administrative act, which underlies the entire edifice of the fiscal matter. Starting from these desiderata, this study aims at analyzing several aspects regarding the implications which the new regulatory framework in fiscal matters has brought in the field of adoption of some fiscal administrative acts, emphasizing, at the same time, the distinction which must be made between the fiscal administrative acts and the administrative acts whereby budgetary claims are individualized.
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Declanșarea și judecarea unui proces atrag per se o serie de cheltuieli bănești care se materializează în taxele judiciare, onorariile avocaților, experților și ale altor specialiști, ori în sume de bani cuvenite martorilor chemați să răspundă în fața judecătorului, pe lângă multe alte inconveniente. Dacă sarcina înfăptuirii justiției aparține statului, principiu recunoscut în majoritatea sistemelor democratice, se pune problema sarcinii suportării cheltuielilor pe care le presupune judecarea unui litigiu. S-a ajuns astfel la „compromisul” prin care cheltuielile de judecată să fie împărțite, aproximativ proporțional, între stat și părțile litigante. Culpa procesuală este izvorul cheltuielilor de judecată, partea îndreptățită la acordarea acestora este partea litigantă, potrivnică celei care cade în pretenții și, pe cale de consecință, cea care a fost în culpă procesuală, prima fiind „victima” celei de-a doua. Ab initio trebuie precizat că stabilirea cheltuielilor de judecată va fi făcută de instanță numai în măsura în care acestea au fost solicitate în cursul procesului pendinte, faptul că instanța nu le-a acordat reprezentând o omisiune a acesteia, care poate fi îndreptată pe calea unei cereri de completare a hotărârii, dacă partea are deschisă această procedură. Probleme s-au ivit în legătură cu actualizarea cheltuielilor de judecată în faza de executare silită, când executorul judecătoresc proceda la punerea în executare a hotărârii judecătorești. Astfel, s-a născut întrebarea „Poate executorul judecătoresc să actualizeze sumele cuvenite creditorului cu titlu de cheltuieli judecătorești?” Înalta Curte de Casație și Justiție a limpezit problema de drept ridicată și a statuat că sumele acordate printr-o hotărâre judecătorească pot fi actualizate în funcție de rata inflației, de executorul judecătoresc în etapa executării silite (cu notă aprobativă). -
In a traffic accident resulting in numerous injuries there have been drawn up several forensic documents, the time limit for medical care being extended to 100 days because of the emergence of some post-operative complications. After numerous postponements and after the reinstatement of the case on the list of cases twice, the court requested that the acts be approved by the Superior Forensic Commission next to the National Institute of Forensic Medicine, although there were no contradictions between them. This body has decided that there is no causal relation between the accident and the extension of the number of days of medical care, invoking medical negligence and the failure of the injured person to go through the entire recovery treatment. Based on this advisory opinion the court has ordered the acquittal, ignoring the other evidence, without giving reasons. According to the author, the solution of the court is ungrounded and unlawful.
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The offences provided by the Law No 31/1990 on companies form a domain relatively little explored by the criminal law specialists and quasi-unexplored by the civil law specialists. This study deals with the two offences grouped within Article 2721. These offences have a few specific elements. First, the active subject in the legal rule hypothesis is qualified, namely a person that holds a certain quality of company member. Secondly, for two of the offences, the hypothesis of criminal rule must be supplemented by the rules of company law regulating the issue of company securities. By the fact that the hypotheses of the other offences regulated in Article 2721 are part of the company law, first it is the duty of the civil law specialist to decode the meaning of the material rule, because a rigid application of the purely criminal vision in a field of the private law can lead to wrong conclusions, with serious consequences on the subjects of the offences. But, in order to cover the entire interpretative area, the same consideration must be given to the criminal aspects as well, where the role of the criminal law specialist steps in, so that the reader – either a civil law specialist or a criminal law specialist – forms a proper idea about a far too little investigated field.
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In this case study, the authors analyze a less common situation in the judicial practice, namely the one of the confirmation of the judicial administrator, in so far as the judicial control court admits the appeal of the creditor that had requested by means of an application for summons the appointment of another insolvency practitioner. The institution of judicial control finds its legal basis in Article 129 of the Basic Law, according to which against the judgments, the parties concerned and the Public Ministry may exercise the legal remedies, under the terms of the law. The provisions of Article 501 of the new Civil Procedure Code give efficiency to the above-indicated constitutional text, given that, without the binding nature of the judgments pronounced by the judicial control court, the purpose of control and, finally, the well-grounded and legal settlement of the cases would not be achieved.
