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Două opțiuni a avut Adunarea Constituantă în 1991 cu privire la echilibrarea raporturilor între puteri, îndeosebi între Parlament, ca depozitar suveran al puterii legislative și cele două autorități de vârf ale puterii executive: Președintele României și Guvernul 1 . Fiecare opțiune cu avantajele, neajunsurile și riscurile ei. Adunarea Constituantă ar fi putut să instituie republica parlamentară, ca specie eminamente și formal democratică a regimului parlamentar, consacrat și prin constituțiile din 1866 și din 1923, dar nealterat esențial de regimurile autoritare ulterioare, sau să modifice tradiția parlamentară a regimului politic și să instituie un alt tip de regim. Regimul prezidențial nici nu a intrat în calculele Adunării Constituante, deoarece acesta, ca tip de separație și echilibrare a puterilor, nu a putut fi extins la niciun popor în forma sa clasică, izbutită exclusiv în Statele Unite ale Americii... -
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The evolution of the Romanian society in the direction of consolidating the rule of law is accompanied, in some cases, by the amplification of negative phenomena, materialized in the increase in the number of persons committing antisocial actions and evading criminal liability, which requires the taking of actions directly aimed at these categories of persons who can continue to commit crimes, some of them of extreme violence. At present, together with the adoption of the Government Emergency Ordinance no.60/2006 for amending and supplementing the Criminal Procedure Code, the national legislative framework regulating the procedure of starting criminal prosecution is in compliance with the European legal norms and meets the standards imposed by the European Union. The powers provided by the legislation are able to meet the requirements in this field and, at the same time, to support the efforts made by the judiciary police bodies specialized in the activity of investigating and tracking down persons evading the enforcement of judgments, whose ultimate purpose is the achievement of justice. -
In the current architecture of the Criminal Procedure Code, the regulation of the special methods of surveillance or investigation is based, from the perspective of the legislative technique, on a unified, foreseeable and predictable approach, eliminating the arbitrary. The special methods of surveillance or investigation are meant to contribute, by their results materialized in proofs, to proving in a direct manner the offences committed by the suspects or/and the defendants. The specificity and concrete particularities of the circumstances of some of the corruption offences, the offences assimilated to the corruption offences, as well as those of drug trafficking, trafficking in weapons, human trafficking, acts of terrorism, cybercrime, expressly enumerated within Article 139 (2) of the Criminal Procedure Code suppose that the probative includes, in a significant proportion, proofs obtained by way of special methods of surveillance or investigation. -
In this study, the author aims to highlight a number of limitations of the principle of availability in the second phase of the civil process, such as, for example, the need to approve enforcement by the court, the impossibility of representation of the legal person by another legal person, execution by persons or entities other than the creditor, as well as the imperceptible nature of certain goods. At the same time, this procedure cannot be initiated against those who enjoy immunity from enforcement, and the failure to register documents under private signature in the National Register of Real Estate Advertising was an impediment to enforcement until declaring the legal provisions of this obligation as unconstitutional. This presents the difficulties encountered by the holder of the writ of execution in his attempt to enforce it, as well as doctrinal and jurisprudential controversies, which led to the conclusion of the need to repeal the institution of approval of enforcement. -
This study examines preliminarily the documents upon which the Court of Accounts concretizes its activity, and it analyses further in a detailed manner the remedies at law against these documents, by emphasizing the non-unitary case law in the matter, namely: if the law court is competent in the first instance (the Administrative and Fiscal Section), and the Court of Appeal is competent in the second appeal (the Administrative and Fiscal Section) or, on the contrary, the Court of Appeal (the Administrative and Fiscal Section) is competent in the first instance, and the competence shall belong to the High Court of Cassation and Justice in the second appeal (the Administrative and Fiscal Section). Based upon a comprehensive analysis the authoress points out that the last solution shall be legal. -
The present study is dedicated to the approach from theoretical and practical perspective of the problem of instigation to commit an offence or to continue to commit an offence for the purpose of obtaining evidence in the context of using special investigative techniques. The problems presented are based on an ex post facto analysis, with applied character, by outlining some concrete hypotheses. There are highlighted aspects elaborated by the European Court of Human Rights by way of case law, but also relevant aspects from the national case law of Romania in order to identify the criteria for establishing the illegal nature of the activities of the criminal investigation bodies necessary to collect and provide evidence in the criminal trial. Likewise, there are presented and analyzed the conditions retained by the Strasbourg Court necessary to be fulfilled so that the activities of the state bodies do not exceed the scope of loyalty of administration of evidence. In addition, an attempt is made to delimit the instigation to commit offences from the legal activity of the undercover investigators in the context in which it has been authorized the use of the special method of investigation of using undercover investigators or collaborators, provided by the Criminal Procedure Code. -
Law No. 221/2009 regarding political convictions and their related administrative measures issued in the period comprised between March 6, 1945 – December 22, 1989 established, inter alia, that the victims of such convictions shall be entitled, within an interval of 3 years from the enforcement of this law (June 14, 2009) to request the Romanian State to pay moral damages (without any ceiling in terms of value) for the suffering caused by such convictions. The law was subsequently amended, in the sense that a ceiling was established for the value of such damages. In its first two decisions (No. 1358/2010 and No. 1360/2010), the Constitutional Court stated that both the original and the amended text of the law are unconstitutional, without denying, however, in principle, the fairness and lawfulness of granting such moral damages in the given situation. Until the present time, the Romanian State did not proceed to enact Law No. 221/2009, in consideration of the mentioned decisions issued by the Constitutional Court, although it was bound by the Constitution to proceed as such. Taking this situation into account, the author sets forth the idea that, at present, although we are apparently in the presence of a legislative void, the injured parties may claim, however, such damages in court, even at this time, on the strength of certain principles from the Constitution of Romania, from the European Convention on Human Rights and Fundamental Freedoms and from the Universal Declaration of Human Rights. -
By reference to the real guarantees, which, theoretically, ensure a greater security of the execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of flexibility. Through the fidejussion mechanism, the creditor will have as common guarantee at least two patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it can also be satisfied from the patrimony of the fidejussor or fidejussors. No one can become a fidejussor-guarantor against his will. Regardless of its nature, the fidejussion has a contractual nature, being able to arise only through the agreement between the creditor and the fidejussor. The law or the judgment only requires to bring a personal guarantee. When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still remains legal or conventional, as the case may be. The judge only orders the execution of the legal provision or of the convention. Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a party undertakes to another party to grant a loan to a third party, in which case the creditor (the person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay the loan received by the third party.
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Given the many amendments to the Government Emergency Ordinance no. 34/2006 and the entry into force of the new Code of Civil Procedure and the law implementing thereof, the author conducts an extensive review of the regulations relating to the appeal and recourse remedies at law, the competent courts of law and the possibility to join the appeals filed against the same public procurement procedure. In this context, the author carries out an analysis of a relatively recent and relevant judgment pronounced on a public procurement procedure by the Contentious Administrative and Fiscal Matters Section of the High Court of Cassation and Justice. -
The institution of the penal clause, regulated in Articles 1538–1543 of the new Civil Code, still encounters different interpretations, even contradictory sometimes, in the judicial practice and in the solutions of the courts. In particular, the interest of the practitioners and of the specialized doctrine is based on the possibility conferred to the court of law to reduce the penal clause in the two cases provided by the legislator, namely when the main obligation has been executed by the debtor to the benefit of the creditor and when the penalty is clearly excessive in relation to the prejudice which might have been foreseen by the parties on the conclusion of the contract. This study aims to analyse thoroughly the two hypostases in which the judge is allowed to defeat the principle of binding force of the contract and to intervene in the decrease of the quantum of penalties, an analysis materialized both from a theoretical point of view and especially from a practical point of view, offering relevant solutions from the recent judicial practice.
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The present study examines in detail the conditions for contracting authority’s cancellation of the award procedure for the public procurement contract, taking into account that the legislative act (Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services) underwent the last 2-3 years - in the terms considered - radical changes likely to run on the current legal regime. -
The institution of appeal in the interest of law has the role of unitarily ensuring the interpretation and implementation of law by courts of law. The legal nature of this procedure is not determined only by the criminal and civil normative provisions governing it. This study argues that this institution is constitutional in nature because, under the Constitution, the High Court of Cassation and Justice has the power to ensure the unitary interpretation of law by the courts of law. There are analyzed the consequences of the constitutional nature of this institution, the limits of obligativity of the settlements of matters of law given by the High Court of Cassation and Justice by means of the decisions ruled in these proceedings, as well as the ratio between the decisions of the Constitutional Court and the decisions of the High Court of Cassation and Justice respectively, ruled for a solution on the appeals in the interest of law. Recent case-law of the Constitutional Court reveals new aspects regarding the possibility of verifying the constitutionality of decisions ruled on this matter. -
This study analyzes the particularities involved by the powers of the Court of Accounts to establish contraventions and to apply offences punishable in the specific activity of control/audit they achieve. Two categories of offences can be identified, namely contraventions that the Court of Accounts only finds, not having the power to apply sanctions against them, and contraventions for which the Court of Accounts is competent not only to identify them but also to apply the sanctions for them. The rules on contraventions that may be applicable to deviations discovered by the Court of Accounts can be found in the Law on the organization and functioning of the Court of Accounts No 94/1992, as well as in other special regulations that are analyzed in this article. The approach is carried out not only from a legislative and doctrinal perspective, but also from a case law perspective, being exemplified in some solutions given by the courts in cases concerning complaints against the contravention reports drawn up by the Court of Accounts. Finally, some conclusions are presented, which also include the authors’ point of view on the perspective approach, including by the legislator, of this issue. -
Leave of absence is a motivated missing (absence) from the workplace, being a period when the employee does not work. As the leave of absence from the workplace is not legally regulated by the normative acts in force, in practice, when the employee requests leave of absence in order to solve some personal matters, discussions arise as to whether or not he receives salary during the leave of absence. This study raises for discussion some considerations and proposals referring to the legal status of the leave of absence from the workplace, both for the employees from the budgetary sector and for the employees from the private sector. -
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.
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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.
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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.
