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This study analyzes a correlation between the Fiscal Procedure Code (the suspension of the extinctive prescriptions in tax matters) and a provision of the Civil Code (suspension of the extinctive prescription as long as the debtor deliberately conceals from the creditor the existence or the exigibility of the debt). The corroboration of these texts, implicitly imposed by the Criminal Procedure Code, raises a series of legal issues, which the author analyzes and, in her opinion, settles them as well. -
This article analyzes the particularities of the suspension by judgment of the enforcement of administrative acts. The legal institution of suspension of the enforcement of administrative acts is a legal instrument made available to the persons claiming to be injured and constitutes a guarantee against the producing of some irreparable damage. The author investigates the conditions and legal effects of the suspension of the enforcement of the administrative act after formulating the prior complaint and the suspension requested in the main proceedings, including also some proposals de lege ferenda. The research is carried out taking into account the latest amendments to the Law on administrative disputes No 554/2004 by the Law No 212/2018 amending and supplementing the Law on administrative disputes No 554/2004 and other normative acts. Also, within this research, the author refers to the decisions of the Constitutional Court on the pleas of unconstitutionality raised in this matter. -
In this study has been underlined the most important trends and options regarding the role of state sovereignty in the contemporary world. Has been analyzed the place of the sovereignty in the process of integration and globalization. The conclusion is that even in this process, sovereignty of state continues to be an important component in the relations of states, based on cooperation and non-subordination. -
The final table of claims is the result of the expiration of the time limit for contestations, without such a contestation being lodged or, as the case may be, the outcome of the solutions given by the courts after the examination of the contestations. In the final table there may be entered also the current claims, at the request of their holders, and this can no longer be contested for the usual reasons for which the preliminary table could be challenged. Instead, in compliance with Article 113 of the Law No 85/2014, the final table may be contested by any party concerned (so, not only by debtors or creditors), throughout the procedure (so not just 7 days after the publication of the preliminary table in BIP) for the discovery of a forgery, of a fraud or for an essential error in the drawing up of the table or for the discovery of some decisive titles, previously unknown (called, in practice, brevitatis causa „contestation for essential error”). We have pointed out that the current regulation reiterated the error in Article 75 of the old Insolvency Law No 85/2006, whereas it only refers to the recording in the table, and not to the omission to record in the table, when it regulates the objective of the contestation. Posting of the definitive table is an important landmark in the procedure, since a 30-day period is running therefrom during which a draft reorganization plan must be proposed, under the sanction of bankruptcy. The preliminary table of claims contains all claims accepted by the judicial administrator, as a result of the verification made under Article 106 of the Law. The claims arising before the opening of proceedings are recorded therein, both the ones overdue and the ones not due, pure and simple or conditional ones, as well as those in dispute (if these are known to the judicial administrator). -
In the context of the new legal framework existing after the entry into force of the Law No 85/2014, this study analyzes the final table of claims and the contestations against it, by emphasizing the notable differences as compared to the old regulation – the Law No 85/2006 – and the importance of the final table of claims over the debtor’s estate in the insolvency procedure, as well as the exceptional character of the contestations against it. The registration of claims in the final table of claims against the debtor’s estate is generating rights for the creditors, and, consequently, the analysis and the thorough study of how this is produced, of the content of the final table of claims, of the time of its registration and publication, as well as of the rights and obligations of the participants in this procedure are essential. The contestations against the final table of claims have an exceptional character and the conditions in which these may be formulated are strictly, expressly and limitatively enumerated by the law. Under these circumstances, this legal remedy is approached from the perspective of the persons who may have the legal standing to file the contestation, from the perspective of the time limit for their submission – which appears as a highly opportune legislative novelty for the stability of the procedure – and, finally, from the perspective of the exceptional situations which may lead to the admission of such contestation. -
The law provides that all declared claims will be subject to the verification procedure, with the exception of claims established by enforceable court judgments and enforceable arbitral awards, as well as budgetary claims resulting from an uncontested enforcement title within the time limits provided by special laws. In case the court judgments or arbitral awards are annulled, quashed or modified in the means of appeal, the judicial administrator/judicial liquidator will restore the table of claims accordingly. In case the court, by annulling or quashing the judgment, does not settle also the merits of the case, the judicial administrator or the judicial liquidator will proceed to the verification of that claim, by notifying the creditors in the event of total or partial non-inclusion of the claim, the creditors having, against the measure of the practitioner, in the Bulletin of Insolvency Procedures the extract of the report of the judicial administrator or of the judicial liquidator in which that measure is described. The judicial administrator will proceed immediately to the verification of each application and of accompanying documents and will conduct a thorough investigation to determine the legitimacy, the exact value and priority of each claim. For this purpose, the insolvent practitioner has the right to request explanations from the debtor, will be able to discuss with each debtor, requesting additional information and documents, if he considers it necessary. The regulation included in paragraph (2) of Article 106 of the Insolvency Code has an absolute novelty character, because until the appearance of the Law No 85/2014 the judicial administrator/judicial liquidator did not have the right to establish that the extinctive prescription of the claim has arisen. This is provided that, in the conception of the new Civil Code, the prescription can only be invoked by the one in whose favour it runs. Therefore, if the insolvent practitioner will appreciate that for the amount of money declared by a creditor within the procedure the extinctive prescription has arisen, he will notify the creditor in that regard, without further checks on the pretended claim, the legislator considering that in this case it acts, although it is a body applying the procedure, as a representative of the insolvent debtor, obviously with the possibility of the creditor interested in challenging the measure to the syndic-judge. As a result of the verifications made, the judicial administrator/liquidator will draw up and register with the court a preliminary table containing all claims against the debtor’s estate, overdue or not, under condition or under dispute, arisen before the date of the opening procedure. In the table there will be mentioned both the amount requested by the creditor and the amount accepted and the priority rank, and in the case of the creditor undergoing the insolvency procedure the appointed judicial administrator/judicial liquidator will also be indicated. In the case of the simplified procedure, in this table the claims arisen after the opening of the procedure and until the moment of going into bankruptcy will be recorded. In the case of claims which benefit from a preference cause, there will be presented the title from which the right of preference arises, its rank and, if applicable, the reasons for which the claims have been partially recorded in the table or have been removed. The claims that are benefiting from a preference case shall be entered in the preliminary table with the full value, indicating at the same time the title from which the preference right arises, their rank and, if applicable, the reasons for which the claims were only partially recorded in the table or have been removed, and in the final table, up to the market value of the guarantee determined by assessment, ordered by the judicial administrator or by the judicial liquidator, by an authorized assessor. However, Article 122 (1) of the Framework-Law makes the drawing up of the final table of claims conditional upon the handover by the assessor of the guarantee assessment report. In case the capitalization of the assets over which the preferential cause takes effect will be made at a price higher than the amount entered in the final consolidated table, the positive difference will be assigned to the guaranteed creditor, even if a part of his claim had been recorded as a secured debt, until covering the main claim and the accessories that will be calculated according to the documents from which the claim arises, until the date of the capitalization of assets. This provision will also be applied in case of failure of the reorganization plan and the sale of the asset in the insolvency procedure. -
This paper summarises particularly complex issues raised by the offence of concealment. It begins with an analysis of the rational value of amendments brought to the offence of concealment (Article 270 of the new Criminal Code) and continues with the analysis of other problems raised by this offence, which either have not yet found a satisfactory solution or have solutions, but they are not known, understood and unanimously adopted in the criminal law practice. -
The article aims to give a new interpretation of the functioning of the separation of powers principle, starting from the tango metaphor. Within it, music represents the principle (the supreme norm), dance, the gesturing of music, so the principle. The two protagonists of the dance (the man and the woman) are seen as the embodiment of the legislature and the executive. The judiciary is constituted by the dance teacher who is the main pawn in the tango logos, adapting the movements (sermo) to the music (ratio), while giving the framework in which to evolve the two protagonists who improvise starting from the principles. From the combination of music and dance, as ways of social organization, it results happiness. Against the background of a subtle harmony, the tango metaphor can account for the functioning of society, the relationship that is established between the tango partners, between them and music, between them and the dance teacher, but also between the protagonists and the public, shows how it works society as a whole. -
In this study the author analyzes the provisions of the new normative act on regulating the activity of teleworking, namely of that form of organization of work „by which the employee, on a regular and voluntary basis, fulfils the specific attributions of his/her position, occupation or trade, elsewhere than the workplace organized by the employer, at least one day per month, using the information and communications technology”. Due attention is paid to the individual labour contract, having such an object, to its specific content, to the rights and obligations of the parties, to the contraventional liability in case of non-compliance with the legal norms. The study emphasizes the advantages and benefits of teleworking both for employers and for employees.
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The reasons behind our research are justified by the numerous legal acts of the European Union adopted in the most diverse areas, acts which include an unprecedented development of substantive EU law, particularly during the last period (2000–2017). As a consequence, the situations in which the infringement procedure can be initiated are also exponentially multiplied. An in-depth analysis of the subject can be edifying if we make a quantitative comparison, and not only, of the EU acquis, existing in the ’60s, at the beginning of the Community construction, compared to the present, already 60 years after the signing of the Treaties of Rome, which have led to the adoption of a highly derivative legislation within a Union of 28 Member States. Regarding the infringement procedure, for doctrinaires, but especially for practitioners, we will analyze the following outstanding issues: who can trigger the procedure; against whom the procedure may be triggered; the situations and methods for initiating the procedure and the steps taken. All these aspects are presented taking into consideration the quality of Romania as a Member State of the European Union with full rights and obligations. -
Rapid expansion and diversification of international relations boost the improvement of public international law, by adopting new rules or by adapting the existing ones to the new relationships between states and other international entities, in order to protect the global legal order by preventing the acts of aggression or other events that may affect the safety of states, human rights, environment or other universally recognized values. -
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The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory” in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge’s intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties’ benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code.
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In the context of the amendments operated on the Administrative Disputes Law No 554/2004 by the Law No 212/2018, the author proposes to analyse the time limits in which the prior complaint can be filed and to analyze each of them separately, by grouping them according to the subject of the prior complaint and to the object of the prior complaint. The author makes the transition from the time limits imposed on the addressees of the administrative act to the time limits imposed on third parties, in the situation of the typical and assimilated individual administrative act, by investigating the length of the time limit, the moment from which it starts, the legal nature or the applicable legal regime and the sanction applied in case of non-compliance with these time limits. The main time limits within which the prior complaint can be filed are analyzed, special attention being given to cases where the prior complaint is not mandatory. Finally, the author emphasizes the importance of applying these time limits in just measure so that the prior complaint procedure does not become an obstacle, not related to the concrete situation, in the way of access to justice of the alleged injured party, nor it becomes an instrument of abuse. -
By the provisions of the Law No 122/2006 on asylum in Romania, as amended and supplemented, the legislator has chosen to derogate from the provisions of common law in the matter of recourse with regard to the time when it starts to run, having as starting point the moment when the judgment of the first instance court was pronounced, without having in view the presence or absence of the party concerned, as well as without taking into consideration the special situation of the asylum seekers from Romania, foreign citizens or stateless persons, most of them not speaking Romanian. This study intends to emphasize how, by this derogation from the processual civil provisions which represent the common law in the matter, it is violated the free access to justice established by the provisions of Article 21 of the Constitution of Romania, supporting the running of the time limit for recourse from the time of communication of the judgment of the court of first instance, and not from the time of pronouncement. -
This study deals with the problem of the judicial remedy and of the time limit for exercising it in case of the rejection on the merits of the application for establishing guardianship. The analysis is carried out from the perspective of the civil procedural provisions which regulate the procedure for settling the non-contentious applications. -
The crime of family abandonment is a continuing offense. The courts have strictly enforced the decision no. 10/2008 issued by the High Court of Cassation and Justice, joint Sections, which sets forth that in the case of continuing and continued offenses, the prior complaint shall be admitted within two months from the date the injured party or the party entitled to file the prior complaint has knowledge of the identity of the offender. The decision issued in second appeal in the interest of law shall be binding and might lead to the suspension of the criminal trial in all cases concerning abandonment of family. Thoroughly analyzing the doctrine and jurisprudence, the author identifies a solution for solving this dilemma. -
Privileged wills are sometimes viewed as an anachronism. In civil law systems such as Romania or France, the freedom of disposition is limited by certain institutions (e.g. the hereditary reserve and the forced heirship), while this is not the case in common law jurisdictions. Nevertheless, civil and common law systems inherited the Roman notion that in some extraordinary circumstances the testator should be allowed to bypass the rigid formalities required for the validity of a will. In turn, civil law systems view such privileged wills as a rather simplified version of the notarial form, while English law fully lifts the written requirement for these cases. The purpose of the current article is to prove the enduring relevance of privileged wills in the contemporary world through an analysis of their origins, current regulation and prospects.
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Prin Hotărârea Guvernului nr. 196/20161 au fost aprobate tezele preliminare ale proiectului Codului administrativ, a cărui adoptare ar permite folosirea unei terminologii unitare pentru aceleași realități juridice, instituții, principii și concepte, reducându-se astfel riscul interpretării lor diferențiate și contradictorii în practica administrativă, precum și în doctrina de specialitate. Codificarea cadrului legal din domeniul administrației publice prin intermediul unui Cod administrativ și al unui Cod de procedură administrativă urmărește simplificarea legislației în domeniul administrației publice, obiectiv urmărit și în Strategia pentru consolidarea administrației publice în perioada 2014–2020, aprobată prin Hotărârea Guvernului nr. 909/2014. -
The study addresses the issue generated by the express regulation of the principle of loyalty in matters of evidence, especially from the perspective of the incidence of the sanction of exclusion of evidence in the cases where this principle has been violated. The author notes that, in general, legality and loyalty in the administration of evidence means the idea of honesty which the judicial bodies must show when constructing evidence, and the violation of these principles generates the solution of applying the sanction of exclusion of evidence. In addition, the article deals also with an aspect of these problems that has not yet received a unitary solution in the national doctrine and case law, respectively that of the existence of a conditionality between the incidence of the sanction of exclusion of evidence on the fault of judicial bodies in the illegal administration of evidence. With theoretical arguments and with examples from the practical activity of the courts, the author shows that the solutions are, on the one hand, in the sense of excluding evidence, and, on the other hand, in the sense of validating them, the court rulings being determined in these cases precisely by the finding of the good faith of the criminal investigation body.
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This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
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In the hypothesis of foreign arbitration awards, in order to obtain the approval of the enforcement, pursuant to Article 666 of the Civil Procedure Code, to the application for enforcement, the creditor will have to attach the foreign arbitration award translated by an authorized translator, under the conditions of Article 150 (4) of the Civil Procedure Code, and the final judgment by which it was approved, under the conditions of Article 1127 et seq. of the Civil Procedure Code, the enforcement on the Romanian territory of the respective arbitration award. To the extent that the foreign arbitration award on which the application for enforcement is based is not translated by an authorized translator, the court executor should issue a conclusion refusing to open the enforcement procedure, pursuant to Article 665 (2) of the Civil Procedure Code, for non-fulfilment of this condition provided by law. If, however, the court executor would proceed, in the absence of the submission of the foreign arbitration award translated by an authorized translator, to open the enforcement procedure and would request the approval of the enforcement, we consider that the application for approval of the enforcement should be rejected, pursuant to Article 666 (5) point 2 of the Civil Procedure Code, since, in such a situation, the court executor does not prove, in the incidental legal conditions, the existence of an enforceable title. -
Potrivit art. 226 alin. (5) C.pen., plasarea, fără drept, de mijloace tehnice de înregistrare audio sau video, în scopul săvârșirii faptelor prevăzute în alin. (1) și alin. (2), se pedepsește cu închisoarea de la unu la 5 ani. Conform art. 207 alin. (1) C.pen., constrângerea unei persoane să dea, să facă, să nu facă sau să sufere ceva, în scopul de a dobândi în mod injust un folos nepatrimonial, pentru sine ori pentru altul, se pedepsește cu închisoarea de la unu la 5 ani. Potrivit art. 291 alin. (1) C.pen., pretinderea, primirea ori acceptarea promisiunii de bani sau alte foloase, direct sau indirect, pentru sine sau pentru altul, săvârșită de către o persoană care are influență sau lasă să se creadă că are influență asupra unui funcționar public și care promite că îl va determina pe acesta să îndeplinească, să nu îndeplinească, să urgenteze ori să întârzie îndeplinirea unui act ce intră în îndatoririle sale de serviciu sau să îndeplinească un act contrar acestor îndatoriri, se pedepsește cu închisoarea de la 2 la 7 ani (cu notă parțial aprobativă).
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The present study is an analysis of the theoretical and recent judicial practice occasioned by the offences of trafficking in human beings and by proxenetism. His author has quoted relevant opinions from the specialized doctrine, succeeding in creating a complete picture of the two types of offences, and these elements were doubled by invoking some aspects of the judicial practice in the field. Some of the statements invoked in this study are criticized in an argumentative manner. The manner of conceiving the theme reveals its author’s intention to emphasize also those aspects that confer a comparison content of the offences trafficking in persons and trafficking in minors, on the one hand, and proxenetism respectively, on the other hand. In the course of the analysis, aspects related to other forms of exploitation of the person, as defined in the Criminal Code, were tangentially pointed out as well. At the same time, the article also contains some very pertinent de lege ferenda proposals, based on the good knowledge of the analyzed field.
