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The company’s entry into insolvency proceedings may be the result of an unfavourable economic situation or the abusive or negligent attitude of the governing bodies may contribute to this outcome. Sometimes people outside the company may have exercised a direct or indirect control of the company’s activities and be liable for insolvency. In these last hypotheses, the legislator chose to sanction insolvency peers who are held patrimonial alongside the insolvent society in order to satisfy creditors’ claims. As a rule, the former statutory administrator is the one who is called upon to respond to the mismanagement of the company’s business. Taking responsibility for this person implies the making of a claim for property liability which is the subject of a separate litigation in the company’s insolvency proceedings. This distinct dispute is settled in a contradictory procedure, with the administration of evidence in order to establish the meeting of the conditions of civil liability under Article 169 of the Law No 85/2014. When, prior to the opening of insolvency proceedings or during the course of the proceedings, whether or not an application for the liability of the statutory administrator was initiated, the question arises as to what happens when the death of the statutory administrator occurs. Such a request to obtain a patrimonial response in conflict with the heirs of the predecessor administrator may be made or continued or the liability is limited to the person of the deceased and a decision cannot be made to order the successors to answer for de cujus clerical errors. -
In its capacity of party to the (European) Convention on Protection of Human Rights and Fundamental Freedoms and its Additional Protocols, inter alia, Romania has committed to comply with Art. 6 of the mentioned international instrument as well as with art. 2 of the Additional Protocol no. 7. For this reason, it is imperative that documents which have important procedural consequences and emanating from a body which is part of the executive power, to be susceptible of a fair and adversarial control from a judge, meeting the fairness guarantees consistent with the rule of law – this is, in fact, the ratio legis of art. 2781 of the Criminal Procedure Code. Equally, according to art. 2 of the Additional Protocol no. 7 to this Convention, any person convicted of an offense within the autonomous meaning of this term, has the right to submit the “declaration of guilt” concerned to the analysis of a higher court, benefiting from the double degree of jurisdiction in criminal matters. This study aims to analyze the compliance of the referred supranational provisions with the provisions of positive domestic law. -
The retransmission of the right to successoral option raises some difficulties of theoretical understanding and practical application, at least for the following reasons: the Civil Code, now in force, substantially changes the logic of the previous regulation of this legal institution; in practice, there are being debated, with a significant frequency, inheritances opened before 1 October 2011 (the moment when the current Civil Code entered into force) and which consequently fall under the incidence of the provisions of the former Civil Code (which ultractivates); there are encountered, in practice more frequently, several inheritances in respect of which the right to successoral option has been successively retransmitted; the institution about whose issues we are concerned herein, in particular, have some resemblances to the successoral representation and to the retransmission of the inheritance. For all these reasons, and we believe that there are not few, nor the only ones, we will discuss further the retransmission of the right to successoral option, starting from the theoretical aspects, which are indispensable for its just understanding and for its proper application in practice. In this context, we will give concrete examples, with the hope that they will be of use to theoreticians and, in particular, to practitioners in the field of successions.
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In this study the author analyses the individual amnesty at the level of the constitutional disposition, in the light of the compared law as a prerogative of the head of State. Covering this analysis, the author concludes that the deed of individual amnesty represents a discretionary and sovereign duty known in most cases as a prerogative of the executive body which exercises this prerogative being able to pardon, usually, without any justification, any individual, no matter the offence he/she committed, provided that he/she was finally sentenced. -
The proposed study aims, in particular, at questionable normative aspects concerning „the action for nullity of the registration of the trademark” in the regulation of the Law No 84/1998 on trademarks and geographical indications. In fact, contrary to the reference that some texts of this law make to „the nullity of the registration of the trademark” or to „the cancellation of the trademark”, the nullity has as object the „administrative legal act of the State Office for Inventions and Trademarks of registration of the trademark”. Likewise, it argues on the uselessness of some rules devoted to this action at law. -
In this study, the author carries out a critical analysis of the provisions of articles 508-534 of the current Civil Code (Law no. 287/2009, as republished on 15 July 2011 and which came into force on the 1st of October 2011), texts which regulate „the legal obligation to support”. Essentially, the author, after emphasizing a series of new judicious and useful regulations of the above mentioned texts of the current Civil Code shows at the same time numerous deficiencies of articles 508-534 of the Civil Code which has recently become effective and which, in his opinion, involves many amendments, supplements and even abolitions of the concerned rules. -
The study presents critical issues on contraventional complaints’ settlement procedure from point of view of Law 202/2010 regarding certain measures to accelerate the process. The reason for this amendment was obvious: the rapid settlement of trials far more numerous than in other matters also due a consequence of the fact the offenders’ procedural interest was that many times only that of suspension of the enforcement of fines and other sanctions imposed by the records of offense, suspension which, according to legislation in the matter, became effective by law upon the registration of the contraventional complaint until the date of the final and irrevocable judgment. In the second part of the study, the author has analyzed the nature of contraventional law given that offenses were removed from the criminal law and have undergone administrative arrangements. Issues of unconstitutionality by removing appeal in certain contraventional matters were addressed, arguing that thereby they have infringed art. 2 of Protocol 7, supplementing the (European) Convention on Human Rights and Fundamental Freedoms. In the final considerations, the author revealed that the ruling no. 500/2012 of the Constitutional Court case-law is a welcomed revival for the Romanian legislation arguing that it forces a reconsideration of the regulation on contraventional proceedings as a whole. -
Maybe some of the most controversial crimes, the rape and the sexual deviations, gave birth to numerous debates in the specialty literature, as well as in the doctrine, but also different, sometimes contradictory solutions in the legal practice. The author shows that not even the High Court of Cassation and justice succeeded to convince or end these controversies, even though that, through decision no. III/2005, tried to clarify the meaning of the material element of the rape crime. The lawmaker, through the incrimination norm of the rape and sexual aggression crimes of the new Penal Code tries to clarify and avoid, for the future, such issues. The present study highlights these possible problems and solutions. -
The paper is based on the non-uniform practice of the courts within the jurisdiction of the Court of Appeal Oradea, as well as from the country, referring to the following situations: the rejection of the proposal for preventive detention during the criminal prosecution; the rejection of the proposal for extension of preventive detention during criminal prosecution; the cessation de jure of the preventive measures; the revocation of preventive measures and the replacement of a preventive measure with other preventive measure. Within this paper the author deals with controversial aspects in the matter of judicial remedies concerning the preventive measures. -
This paper presents a brief analysis of the problems raised by the offence of theft. The authors emphasize, on the one hand, the close connection between these problems and some errors occurred in the civil theory of possession, and, on the other hand, some shortcomings of the current definition of the offence of theft. Similarly, there are presented some possible corrections, both at theoretical level and at legislative level. -
The purpose of imposing the criminal processual sanctions is to respect the principle of legality that governs the criminal trial. The principle of legality, established in Article 2 of the Criminal Procedure Code, is the fundamental principle of the criminal trial according to which the conduct of the entire criminal trial, namely in all its phases (criminal prosecution, preliminary chamber, judgment, enforcement phase), takes place strictly according to the provisions stipulated by the law. The effects of this principle are materialized in a series of processual guarantees, one of the most powerful guarantees of the fulfilment of the processual and procedural acts according to the legal rules being precisely the processual sanctions. The problems which arise in the practice in connection with the application and interpretation of the regulations incidental in the matter of criminal processual sanctions have led us to proceed to the elaboration of this study. -
The developments which the Romanian, European and international society has experienced, especially in the last decade, coincide with the 10th anniversary of our country’s accession to the European Union, requiring new approaches of the multiple dimensions which the integration process involves. The integration into the European Union, which has generated a series of changes at constitutional level, is also one of the objectives of Romania at international level. Likewise, the process of accession to the European Union has conferred to the Romanian citizens, inclusively, the right to participate in the European Parliament elections, both as candidates and as voters, according to Article 38 of the Romanian Constitution, republished. In this study, the author intends to discuss the problems of Romania’s accession to the European Union from the perspective of the constitutional provisions. -
The liberty of the person is one of the most important social values, its importance requiring its protection by criminal law rules, in all the states with acknowledged democratic systems. Taking into consideration the content of the offense of deprivation of liberty in the new Criminal Code, the authors made a brief examination of these provisions and carried out a comparative analysis with the current provisions. The comparative analysis refers to the differences existing between the two accusations, differences noted in particular as regards the accusation of aggravated forms of this offense. The authors also carried out a comparative law examination proving that the illegal deprivation of liberty is an action regarded as an offense by all the countries, and that there are many elements of similarity, as well as certain insignificant differences between its content in various legislations. In the conclusions they formulated, the authors proposed the addition of other aggravated forms to the provisions of the new Criminal Code, forms that are in fact provided both in the current Criminal Code and in the legislations of other European Union countries. -
In a democratic society, the legal legitimacy of the State and of the State’s power, of its institutions, but also the social and political foundations of the society as such, are generated and determined by the Constitution, defined as expressively as possible as being: „Fundamental political and legal establishment of a people” (I. Deleanu). The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional norms. Guaranteeing the respect for that principle, 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 adopted normative acts, in contents and form, the constitutional norms. Amending the Basic Law of a state is an extremely complex political and legal act with major meanings and implications in the social, political, and State system, but also for each individual. Therefore, such an approach should be well-justified, in order to respond to some well-defined social, political, and legal requirements and particularly in order to meet the principles and rules specific to a democratic constitutional and State system ensuring the stability and functionality it needs. These are some aspects of the contemporary constitutionalism in Romania which we are trying to analyze critically in this study, in order to make the distinction between ideal and constitutional reality. -
A special category of workers is represented, pursuant to the European and national norms, by the professional maternal assistants. In accordance with Article 1 of the Government Decision No 679/2003, these are natural persons, legally certified, who ensure, through the activity they carry out at their home, the raising, care and education necessary for the harmonious development of the children they receive in placement or in their custody. Although maternal assistants carry out their activity under an individual employment contract (of a special nature), they do not benefit by all the rights in their fullness which the other workers have. Thus, they do not have the right, only restrictively and with permission, to weekly rest, days off or rest leave. This situation is justified by the superior interest of their mission, that of ensuring the raising, care and education of children, their integration without discriminations in the family of the assistants. This is the reason why the European Court of Justice (Grand Chamber) has ruled (in the Romanian Case C-147/17) that the activity of maternal assistant does not fall within the scope of Directive 2003/88.
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The new Criminal Code, bringing numerous novelties in the sphere of incrimination of the Romanian Criminal law, sets forth under Article 284 the sanctioning of an attorney’s act or of a person acting as representative in a legal business for failure to defend, in good faith and fairness, the rights and interests of the person represented, with the view to discriminate in favour of another person, with opposing interests. -
The author performs a detailed analysis of the characteristic traits of indictments under the new Criminal Code which are correlated with, related to or in interdependence relationship, as appropriate, with fraud, in view of similarities and disparities thereof, with frequent references to valid national legal practice and in relation to the new Criminal provisions. To that effect, there are dealt with, in particular in the light of their disparities, offences such as: fraud in the insurance field, encouragement of the perpetrator, concealment, omission of the referral, misleading the legal authorities, blackmail, theft, breach of trust, breach of trust by defrauding the creditors, unfair assistance and representation, influence peddling, issuance of counterfeit securities, forgery of foreign securities, counterfeiting of a technical record, perjury, false identity, but also the ones laid down in Article 84 of Law no. 59/1934 on cheques and in Article 271 points 1 and 2 of the Company’s Law no. 31/1990. Thereafter, in the case of the offences mentioned above, there are considered differentially, as appropriate, the subject of criminal care, the offence, the objective and the subjective side, forms, procedures and penalties provided for under the law. Also, the author does not hesitate to put forward his opinion on deciphering the legal wording of the offences under review or the sphere, in practical situations, of one or the other of the aforementioned rules of incrimination and to advance some of its own solutions and ideas.
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This study proposes a comparative analysis of the norms of incrimination which include under the incidence of the criminal law some deeds recognized as international crimes through conventions and treaties. The crimes included in Title XII – Crimes of genocide, crimes against humanity and war crimes in the Romanian Criminal Code and the Crimes against the peace and security of mankind, war crimes defined by the Criminal Code of the Republic of Moldova are studied by the comparison method. From the comparison made the author comes to the conclusion that both the Romanian legislation and the legislation of the Republic of Moldova have fully complied with the international provisions in the field of regulation of international crimes. In addition, it is appreciated that both states, through their own legislative regime, have taken steps to make the national laws uniform with the international regulations, in order to provide a unitary framework in respect of sanctioning of the international crimes.
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According to Article 19 of the Government Emergency Ordinance No 20/2021, the doctors, regardless of specialty, acquire or lose by a Government decision which declares or terminates the state of alert, without any training, evaluation or sanction, a special professional competence to treat persons infected with SARS-CoV-2 coronavirus, for which they would not be liable with their patrimony if they complied with the guides and protocols approved by the order of the Minister of Health. The regulation represents a violation of Article 34 (3) of the Romanian Constitution, generating an uncertainty regarding the existence and extent of the doctors’ rights and violating the fundamental right to the protection of citizens’ health. First, the criteria for exercising the medical profession (acquisition and loss of a professional competence) are delegated by emergency ordinance by the exceptional legislator (the Government) to the executive (the Government), in order to be established by a legal act with inferior force than the law, in violation of Article 1 (4) and (5) of the Constitution. Secondly, the fundamental rights to Life, provided by Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and, respectively, to Health care, regulated by Article 34 of the Constitution, guaranteed by the control of the medical profession (embodied in legal provisions imposing some strict conditions for acquiring professional competence and liability for the medical act), are eluded by the permission granted to non-specialists to intervene, apparently without liability, on the human body. -
This paper analyses the concepts of harmonization, approximation of laws and the establishing of minimum norms in EU law, with an emphasis on the criminal European law. These notions are followed since their creation, first in the internal market and then, in the area of freedom, security and justice, through all avatars they got through alongside the evolution of the EU integration process. Without a legal definition, the meaning of those concepts was created and then partially contested by legal authors. Though, there is still a debate between some authors about the differences in the nuances of those legal notions specific to EU law, the majority of legal thinking agreed that all these notions are reflecting the same idea of vertical integration of EU law. Another major influence upon defining those concepts in the criminal European law was represented by the EU Court of Justice case-law in the Environmental Crimes Case and Shipping Pollution Case, setting out, for the first time, a constitutional basis for the creation of criminal European law: the principle of effectiveness combined with the principle of loyal cooperation. The final part of this study analyses the harmonization and the establishment of minimum standards in criminal European law in post-Lisbon era, taking into consideration all important changes brought by this treaty, such as the fully constitutional basis for harmonization and mutual recognition in the criminal law area of the EU.
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The entry into force of the new Criminal Code has determined, as it was natural, new approaches to doctrine and jurisprudence, and one of the perspectives of analysis is the correlation with the constitutional provisions. This study aims to establish an examination of constitutionality, as regards the offence of deceit, from the practice of the Constitutional Court on the previous Criminal Code provisions, identifying situations where the new rules can generate discussions on the compatibility with the Constitution. -
This study, entitled „Harmonisation between tribunals. Some points of reference”, is dedicated to some considerations on the collaboration between the national tribunals, on the one hand, and the tribunals established at the level of the European Union – the Tribunal of Justice of the European Union and the European Court of Human Rights –, on the other. The author starts from the finding that the European citizens can protect their rights both through the courts in their own country and through the previously mentioned European courts.
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As a systematic mean of exposing knowledge, in a specific and accessible form, the encyclopedia played an important scientific and cultural part, much amplified given the conditions of the age of internet. The encyclopedia of law offers important particularities, linked to its own tradition, the importance of the knowledge it offers and the extraordinary dynamics of the field. The project initiative of a Romanian Encyclopedia of Law answers a historical need, as a work of accomplishment and affirmation of the Romanian culture, in the context of the European and global cultural diversity. Moreover, it stands as an endeavour imposed by the new stage of development in Romanian law. After the finalization of the great legislative reform post-1989, by the adoption and entry into force of the major codes: civil and civil procedure, criminal and criminal procedure, legal doctrine needs a synthesis and conceptual abstraction specific to an encyclopedia.
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The article hereby reviews the arguments on the need for detention of the presumption of innocence in contravention and, therefore, the proper application of the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms. Arguments are the result of uniform and consistent theories and practices of the European Court of Human Rights and the provisions of the Constitution of Romania, republished. Given these arguments, the author considers that the presumption of innocence in contravention is mandatory for the Romanian courts when a complaint of contravention is submitted for trial against a sanctioning act. In conclusion, it urges that the High Court of Cassation and Justice order by an appeal, in the interest of the law, guidance for uniform practice in contravention and / or the legislator to amend laws on this issue, to that effect.
