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In the regulations of the new Criminal Code, the legislator has not opted for a limited criminal liability of the legal entity, but for a general liability which may result because of the commitment of any criminal offence. Except the state, the public authorities and the public institutions which carry on any activities not representing the subject matter of the private field, the other legal entities may hold the capacity of active subject, no matter the nature and the seriousness of the committed criminal offence. The criminal liability shall be laid upon the legal entity only when the respective entity having a position of management, provision, decision etc. commits the deed set forth by the criminal law in carrying out the business line or in the interest or on behalf of the legal entity. In case of committing a deed set forth by the criminal law, both the criminal liability of the legal entity and of the natural person who contributed to its commitment or only of one of these two categories of persons. -
Law no. 85/2006 on the insolvency procedure, under Article 138, ties to rules the cases and the conditions under which managerial or supervisory staff of the debtor (legal entity), facing insolvency, is to answer patrimonially for having caused the state of insolvency of the relevant debtor (legal entity). In practice, in relation to this wording, it was raised in case law the question whether those by right can make such a request (on grounds of Article 138), subsequent to the occurrence of closure of the insolvency proceedings (under Articles 131-137 of the same Law). The author argues – bringing arguments to that effect, that it is required a positive response. -
The article offers an analysis of the regulation of the institution of unworthiness to inherit as regulated by the Civil Code which entered into force on 1 October 2011. First the author had in view both the influences of the foreign regulations which served as a model for drafting the normative act and the conclusions of the Romanian doctrine and of the case law relevant in the matter, which the Romanian legislator has taken into account. Starting from the nature of civil sanction of the unworthiness to inherit, there are analyzed the modalities which can remove the effects thereof, formulating, at the same time, relevant de lege ferenda proposals in order to create a unitary system as comprehensive as possible relative to the related procedure. -
This article proposes to examine certain aspects related to the incompatibility of the criminal investigation bodies and of the prosecutor within the criminal lawsuit. The authors take into consideration mainly the incidence of incompatibility cases in the stage of preliminary acts, emphasizing the case of incompatibility set forth in art.48 paragraph (1) letter d) of the Criminal Procedure Code. Through their scientific undertaking, the authors try to demonstrate that incompatibility concerns, to the same extent, both the stage of criminal prosecution, and the stage of preliminary acts. Likewise, the scope of the above mentioned incompatibility case and the decision related to its prosecution are examined from the perspective of the provisions of the (European) Convention for the protection of human rights and fundamental freedoms and of the case law of the European Court of Human Rights, as well as in the light of the provisions of the new Criminal Procedure Code. -
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 authors examine criminal matters regarding prohibited practices in the area of competition from a comparative perspective. The study refers to the competition law in the European Union, in some of its Member States, in the United States of America, as well as in Romania. -
The article aims to analyze the main aspects that characterize the procedure of concluding the plea agreements, concluded between the prosecutor and the defendant, within the proceedings before international criminal courts. The fact that these courts have taken features from both legal systems, inquisitorial and accusatorial, as well as the fact that this procedure has been implemented in a stage subsequent to the adoption of the statutes of these courts, for reasons of practical necessity, makes their experience of over 12 years in implementing this procedure particularly useful to the European continental legal systems which, in their large majority, have recently adopted the Plea Agreement procedure. These also include Romania, once the „Plea Agreement” institution has been regulated within the provisions of Articles 478–488 of the new Criminal Procedure Code, which makes the study of the case-law of the international criminal courts also useful in the Romanian judicial practice. -
The overview hereby analyses provisions of the Supreme Court’s decision no. III/2002, which regulates interpretation and uniform application of provisions of art. 2151 in the Criminal Code regarding the crime of embezzlement committed by the landlords’ or tenants’ association manager in his capacity as employee. The author substantiates, however, that provisions of decision no. III/2002 may not be applicable to managers employed with landlords’ or tenants’ associations lacking legal entity status, whereas these associations may not enter into individual employment contract, which is why the manager is not employed and therefore, not a civil servant, and, likewise, it may not be applicable to managers employed with landlords’ or tenants’ associations on the strength of legal agreement, whereas, in default of an individual employment contract, they are not employed and therefore, not civil servants. -
The new regulatory framework, established in the matter of accelerating the process of restitution of real estate properties and of the compensatory measures by the Law No 165/2013 on measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania, also includes some regulations concerning the cases and the modalities of cancellation of the titles of property issued by the county commissions of land resources. In the ambience of the new regulatory framework, this study analyzes the regulations established by the Law No 165/2013 in the matter of cancellation or change of titles of property issued by the county commissions of land resources, as well as in the matter of cancellation or of changing the decisions issued by these commissions, which stood as basis for the issuance of the title of property. The analysis of these issues has been made by reference of the provisions of the Law No 165/2013 to other provisions established by the Law No 18/1991, the Regulation for application of this law, as well as by reference to the special normative acts of reparatory nature. -
Starting from Code of Canon Law we discuss some religious and legal aspects of the Catholic „natural marriage” which cannot be disconnected by t he contemporary cultural and social changes. Here we take into account the power of love which makes people see and wish not only the traditional appearance of marriage, but its real sense. From this point of view, we explain other sides of the nowadays marriage like irregular unions (civil marriages and partnerships) and invalidity of the canonical marriage. We consider that there should be avoided judges that do not consider the complexity of different situations in which people live or suffer. The Church works in the spirit of fraternity and charity and that is why those people who live in some exceptions of the „natural marriage” should be integrated in different ways within the Christian communities. -
A new decision of the European Court of Human Rights (the Judgment of 19 June 2018 pronounced in the Case Bursa Barosu Bașkanligi et al. against Turkey) strengthens the case law according to which the useful effect of the right to a fair trial presupposes also the right to execute the justice decisions (inaugurated in 1997), including those that protect the environment (initiated by the Judgment of 12 July 2005 in the Case Okyay against Turkey) and opens new perspectives in this matter. Limited to procedural issues, the decision contributes, however, to the nuancing of the problems, encourages the progress of the effectiveness of environmental law by judicial means and, through the suggestions offered, underlines the need to particularize the legal reaction to the specific of the ecological realities. The deception is mainly resulted from the limitation to the data of the judicial precedent and the failure to fully use the capacities related to the involvement of the civil society in promoting the environmental judicial progress.
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Due to the prevailing technical nature and to the insufficient discussion on this subject in the doctrine and the specialised literature, the search of computers gives rise to controversies. The author presents, step by step, every phase of this probative procedure, emphasizing the criminal processual particularities in the light of the regulation in force (Article 168 of the new Criminal Procedure Code) and of the previous one [Article 56 (4) of the Law No 161/2003 corroborated with Article 100 and following of the Criminal Procedure Code of 1968], as well as the technical – computer particularities.
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As a sanction for non-compliance of obligations incumbent upon the convict during probation, revocation of the conditional suspension of penalty execution is governed by provisions of art. 83 and 84 of the Criminal Code in force. In recent years, legal practice of law courts in Romania are increasingly raising the question as to the deadline revocation of conditional suspension in case of non-compliance of civil responsibilities may be claimed; additionally, law courts embrace a different approach on the subject of procedural background in terms of admissibility of a claim as such. Taking our stand upon these premises, the review hereby aims to clarify some issues that, amid a weak legal framework, generated inconsistent case law in court activities, along with the above mentioned matters, while high interest was taken into consequences of probation period completion during the case trial. On the strength of a systematic review of relevant provisions in the field, and of a scrupulous comparative analysis of provisions set forth in the new Criminal Code and the new Criminal Procedure Code, the article highlights different cases brought to courts’ attention, the author considering that the claim’s enunciation and obtaining the revocation decision should occur before the probation period is completed and, implicitly, prior to the moment the convict’s rehabilitation de jure supervenes.
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In this study, the authors have chosen to present and to analyze the criminal law institution of the conditional release because, as practitioners, more than once, they came to discover a different application thereof, a different approach of the criteria laid down by this institution and even a difference of opinions within the assessment of the opportuneness of ordering this measure by the judges of the same court, this generating an uneven practice with regard to the application of the same rule of criminal law. -
The institution of administrative disputes in the matter of the ordinances or of the provisions of ordinances established as unconstitutional, as well as of the constitutional and legal regime thereof is less analyzed in the specialized literature and debated in the judicial practice from Romania. In this context, this study intends to make an analysis of the most controversial aspects related to the applicability of the institution of administrative disputes in this matter, as well as of some aspects referring to the particularities of exercising the action for administrative disputes against the ordinances or against the provisions of ordinances established as unconstitutional by the Ombudsman. -
The new normative framework in the matter of insolvency regulated by the Law No 85/2014 on the procedures for preventing insolvency and for insolvency brings some significant mutations in this matter, regulating the mentioned legal institution, of a great importance to the economic environment, by more clear, concise and predictable rules. In the ambience of the new regulation in the matter of insolvency, as well as of some special regulations in this matter, this study intends to make an analysis of a few general aspects regulated by the new normative framework in the matter of insolvency and by the special regulations in the field, pointing out, through a comparative analysis to the provisions of the former law, the elements of novelty brought in the matter of insolvency.
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In the ambience of the legal framework established by the new Civil Procedure Code, this study proposes an analysis of some aspects referring to the determination of the jurisdiction of courts which settle civil disputes in matters of performance of civil contracts, in relation to the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses both the problems of determining the jurisdictions of the courts which settle disputes derived from the performance of civil contracts depending on the value of the object of the civil contract and the problems of determining the jurisdictions of the courts which settle the requests concerning the obligations to do or not to do, non-assessable in cash, having a contractual source. There are also analyzed the modalities for determining the jurisdictions of the courts which settle disputes derived from the tenancy contract, with its varieties, and, respectively, the leasing contract. -
In the ambience of the legislative framework instituted by the new Civil Procedure Code, this study intends to make an analysis of several aspects referring to the determination of the jurisdiction of law courts which settle disputes in matters of administrative disputes, regulated by the Law on administrative disputes No 554/2004, in comparison with the procedural provisions instituted by the new Civil Procedure Code. In order to achieve the proposed approach, the study analyses the compatibility of the procedural rules of common law included in the new Civil Procedure Code referring to the determination of the jurisdiction of the law courts in relation to the provisions of the Law No 554/2004 regulating the jurisdiction of the law courts in matters of administrative disputes. -
The amendments brought to the new Civil Procedure Code by the Law No 138/2014, especially in the matter of enforcement, have produced significant mutations in the matter of administrative disputes as well. In the context of the amending provisions brought to the Law on administrative disputes No 554/2004 by the Law No 138/2014, this study intends to make an analysis of the judicial remedies that may be exercised against the judgments delivered by the background courts in matters of administrative disputes, as well as an analysis of the procedure of enforcement of the final judgments, delivered by these courts. -
In the context of integration of Romania into the European Union and of the normative acts adopted by the Romanian legislator in order to ensure the compatibility of the internal law with the European Union law, the tax disputes and, in particular, tax administrative disputes are conferred a great importance. In the ambiance of the European rules and of our internal law, this study intends to analyze several aspects regarding tax administrative disputes, as well as the application of the principle non bis in idem in the matter of tax administrative disputes, in relation to the case-law of the European Court of Human Rights and of the European Court of Justice of the European Union. -
The issue of territorial planning and urbanism became especially important after the entry of Romanian in the European Union, due to the complexity and multitude of problems imposed by the dynamics and evolution of society. The ambience of constitutional provisions, conventional and community rules, the issue of the administrative court institution regarding urbanism and territorial planning and, notably regarding cancellation of building permits, acquires great importance and is intended to guarantee the fundamental rights and freedom of citizens in this complex field, less explored in literature. Based on these challenges, this study analyzes several issues that rise interest in attacking building permits in administrative court. -
In this study, the author brings back to memory a doctrinal discussion, inspired by the decision of a tribunal (seized as a court of judicial control), published by the „Romanian Journal of Law”, in two issues, in the period between 1983 and 1984, a discussion in which its protagonists, accepting the idea of an extensive interpretation of the provisions of the old Civil Procedure Code regarding the procedure of verification of scripts, concluded that this procedure may also cover the application for summons, in case that one of the applicants claims that he did not initiate the trial, the signature on the application is not his, nor did he mandate his brother (the co-applicant) to initiate the trial in his name. The doctrinaires have reached, in illo tempore, to the conclusion that the denial of the signature on the application for summons by the person to whom the document is attributed, in fact challenging of the quality of party to the trial, as an applicant, may be invoked, for the first time, also in the means of appeal, the court of judicial control following to submit the application for the procedure of verification of scripts. The tribunal has appreciated that the verification of the signature on the application for summons could only be made by its indictment as false and sending the case to the prosecutor. This point of view was not accepted by the person filing the recourse who considered that the proof of his statements could also be made through a procedure of verification of scripts of the document, before the civil court (which could order, if necessary, a graphological expertise to be made), not wanting to expose his brother, or himself, to criminal investigations. The fact that the second author involved in the discussion claimed the lack of consistency of the claim that the person filing the recourse has not acquired the quality of party (namely of appellant), since he could only exercise the recourse as a party (and not as a third party), has offered the occasion to the last two authors participating in the doctrinal discussion to make the distinction between the quality of party to the trial and the processual quality.
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In this study, the author, while reporting certain provisions of the new Civil Code (Law no. 287/2009) and of Law no. 71/2011 for the implementation of the new Code, as compared to certain provisions of the Government Emergency Ordinance no. 44/2008 regarding the performance of the economic activities by self-employed persons, believes that through Art. 11 of Law no. 71/2011, one has not granted legal personality to the individual and family enterprises regulated by the ordinance mentioned above, while on the contrary, through Art. 2324 (4) of the new Civil code (in force as of 1 October 2011), one has implicitly amended Art. 31 of the said Emergency Ordinance. Finally, the author opinionates that the “Monist” concept of the new Romanian Civil Code (namely, the cancelation of the trade law and the existence of a unique civil law, which also incorporates the former trade law) is more of a formal issue, not a substance one.
