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Analyzing the draft of the Romanian law regarding the protection of national minorities in Romania (to be adopted pursuant to the Framework Convention for National Minorities adopted in 1995 by the Council of Europe), the author believes that inserting the definition of the “national minority” term into law is inappropriate; the mere listing of some objective criteria, useful for identification, is sufficient and useful. -
The relatively recently legal notion of imprevision brought under Romanian regulation by the new Civil code that came into force October 1st, 2011, is expected to be subject of numerous specialized analyses in order to clarify the various aspects that make up its identity, characteristics and effectiveness. Following the purpose described here-above, this study aims especially at conjugating the theory of imprevision with the copyright transfer agreement. The article hereafter contains standpoints and de lege ferenda suggestions in relation to the party entitled to institute the legal proceeding relative based upon the imprevision theory, the criteria to be observed in order to adopt a solid legal settlement in this respect, the contracting parties and the court’s role in interpreting and applying the imprevision theory.
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Case law has outlined a solutions divergence on whether prisoners of war and / or persons who have been deported on ethnic grounds in the 5th decade of the last century may or may not benefit from compensations governed by previous regulations regarding these two categories of persons. Author’s well-founded view is oriented towards a negative direction.
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Examining art. 201 of Law No. 71/2011 for the implementation of the new Civil Code (Law No. 287/2009, republished on July 15, 2011) in conjunction with art. 6 paragraph (4) of the said Code, the author concludes that judicial bodies (judiciary authorities and arbitration courts) can, ex officio and at any stage of the trail, claim the limitation periods that have begun under the former regulation (Article 18 of Decree No. 167/1958) as well, regardless of whether such limitation periods have been met or not until the entry into force of the new Civil Code; subsequently, only the limitation periods which have begun after October 1st, 2011 (the date of entry into force of the new Civil Code) shall be able to be claimed exclusively by the interested party and only until the first term the parties were duly summoned at (this according to art. 2513 of the new Civil Code).
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The new Romanian Criminal Code’s lawmaker took most of the regulations from the Criminal Code in force, the so-called constants of criminal law, but also introduced new ones, unknown to our law, some of which being required by the current socio-economic conditions and others being introduced out of the lawmaker’s desire to bring something new to the criminal law in force or simply to take them from other foreign laws, although criminal law science did not call for this. In this study, the authors make an inventory of these innovations, while attempting to analyze thereof and show the unfittingness of their introduction or acquisition from other foreign laws.
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In Romania, the former Code of Civil Procedure (of 1865, republished in 1948 and amended and supplemented many times since then) with effect from February 1st, 2013 will be repealed and replaced by the current Code of Civil Procedure (Law No. 134/2010, republished on August 3rd, 2012). The topic of producing evidence in the new Code of Civil Procedure is being approached in this study; its authors believe that the new Code has not made essential amendments to the provisions relating to producing evidence, but only a number of additions in some areas such as: trial investigation; selection of the producing evidence procedure; the place of the trial investigation (in closed session and not in open court); producing evidence etc.
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The change of vision brought by the new Civil Code in re ation to the partition contract requires an examination more attuned to the practical aspect. This study shows that, due to the fiscal taxation and the problem of the community regime of spouses, it shouldn’t be indifferent to us the translative effect of the partition contract. The transition from the declarative effect has clearly intended to provide a more coherent system in regard to certain issues like the fate of deeds closed by a co-owner over the whole property as well as the guarantee for eviction and defects. However, we tried to state that the retroactivity of the declarative system provided as well palpable benefits for the person seeking to enter into a partition by mutual agreement. Also, in the final part of this study we provided some details regarding the conditions for registration in the land book of the legal hypothecation stipuled for the previous co-owner regarding the debt from eviction.
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In this study the authors examine the issue regarding the ways to determine lineage and the recognition of the child (art. 408 and art. 415 and the following of the new Romanian Civil Code - Law No. 287/2009, republished on July 15, 2011 and entered into force on October 1st, 2011) noting the differences in relation to the previous regulation (the Family Code in force from February 1st, 1954 until September 30, 2011); in this context, on the one hand, the positive aspect of the new regulations is highlighted, and on the other hand, a series of lex ferenda proposals are also being carried out.
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The new Civil Code, unlike the old Code, includes a quasi-complete provision on the invalidity of the contract based on the fundamental distinction between absolute invalidity and relative invalidity. Invalidity - either absolute or relative - can be both complete and partial. Regardless of its form or the way it is established or in which it operates, partial invalidity may appear either as an explicit invalidity, therefore, in the form of clauses declared null or voidable or, more recently, either in the form of clauses deemed unwritten, or as tacit invalidity (obviously partial). In terms of terminology, the phrase or formula “clauses deemed unwritten” is an easy, therefore practical way to designate certain ancillary unlawful clauses which are automatically void. Ratione temporis, partial invalidity, regardless of its form, is and shall remain subject to the law in force at the date of conclusion of the contract and not to the law in force at the date the invalidity was determined or that when the contract was cancelled and neither subject to the law in force at the date the parties are reinstated to the previous status.
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The article analyzes recent and older judgments of the High Court of Cassation and Justice and other courts on the regularity of the document instituting court proceedings, through the indictment prepared by the prosecutor. By highlighting the lack of uniform settlement of irregularities arising in the procedure laid down in Art. 300 of the Criminal Procedure Code, the authors try to find harmonious solutions for the procedural incidents arising in matters. Also, a significant part of the article is dedicated to the provisions of the new Code of Criminal Procedure relating to the analyzed matter, highlighting some deficiencies specific to the new rules. -
Criminal Rule incriminates the refusal to collect “biological samples”, highlighting the driver’s bad faith. Law does not refer to the case where the driver has agreed to provide the first biological sample but refuses the collection of the second. Such situations hindering the criminal prosecution body were met in practice. After a thorough assessment of the incriminating wording in accordance with the criminal provision’s rules of interpretation, the author concludes that the refusal to provide the second biological sample is an offense.
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Assuming the many relationships between cybercrimes stipulated by Law no. 161/2003 and Law no. 365/2002, as well as between those and criminalization under the Criminal Code in force, the author seeks an analysis which could highlight the concerns that may arise in this context. Also, given the applicability title various criminal provisions acquire in a particular concurrence of skills, the author found it necessary to identify the specific indictment’s wording to be applied first, based on an analytical process. These findings were also analyzed with regard to the provisions of the new Criminal Code, verifying whether the new regulations preserve or not the concerns identified within current legislation. Last but not least, reasoning used in the literature in the matter was considered as well as the judicial practice solutions to see how they have resulted in the appropriate identification of the indictment’s wording applicable.
