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In this study the authors make an approach that highlights the lack of harmonization between organic laws and the post-December period constitutional laws, in relation to regulating the free use right with referring to the public property, primarily, and the private property of the state/territorial-administrative units, in subsidiary; then the legislating of the new Civil Code which fully ceases the unconstitutionality status; and finally several aspects of specific administrative technique are being addressed. -
In the study hereby, the author sets under review the body search institution, from the perspective of theoretical and practical approaches. Body search has a distinct character, being undertaken in some cases separately from other evidence procedures, but it is also frequently undertaken on home searches, detention or arrest of a person. The author puts forward, within the study, the main legal regulations applicable in the field of body search, focusing on the new amendments to the new Code of Criminal Procedure, and reasoning some de lege ferenda proposals.
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In the study hereby, the author provides a critical analysis of the various positions adopted by the U.S. Supreme Court of Justice in terms of the relationship existing between the practical need of making use of hearsay evidence in criminal proceedings and the obligation incumbent upon the legal bodies to guarantee the culprit the effective exercise of the opportunity to test via counter interrogation the reliability of such evidence. The author proposed that the analysis of judicial practice to be carried out compliant with the structure followed within the specialty works in the United States, in order to distinctly put forward each category of cause in which a conflict might arise between the admissibility of hearsay evidence and compliance with the procedural guarantees established under the law in favour of the culprit and to distinctly highlight, for each category in question, solutions framed by the U.S. Supreme Court of Justice with the view to settle the conflict arisen.
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Potrivit dispozițiilor art. 25 din Ordinul CSA nr. 20/2008, în cazul în care în unul și același eveniment au fost prejudiciate mai multe persoane și valoarea totalã a prejudiciului depãșește limitele de despãgubire specificate în polița RCA, despãgubirea va fi stabilitã în funcție de cota-parte din valoarea prejudiciului ce revine fiecãrei persoane îndreptãțite la despãgubire.
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The present study aims to examine the law principles issue based on principles of doctrinal realities under which there are principles of law, general principles of law and specific principles of various branches of law. The 1st Article of The New Civil Code is a challenge for us because this text introduces customary legal and legal doctrine among the classic sources of law. The legal doctrine is recognized by the Civil Code as a work of philosophical synthesis which it can be valued only by the jurisprudence. All in all the general principles of law- the rule of law, equity and justice, legitimacy and legal regulations- are applicable to all branches of law. -
The author briefly examines the issue of securities in the Romanian private law and she further presents the regulation of their administration according to the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011), entered into force as at October 1st 2011.
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The interest loan is a form of the consumption loan, having as legal grounds, mainly, the provisions of the new Civil Code, art. 2167-2170. This agreement is presumed onerous, the borrower having the obligation to pay, in due time, an amount of money or other type of goods, as interest, representing the equivalent amount of using the borrowed capital. The legal regime of the agreement, including of the generating interest, in its diversity of types, forms the object of the analysis of this study, conducted both according to the common and special provisions of the new Civil Code and in the light of the special legislation, the Government Ordinance no. 13/2011.
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Within the study hereunder, the legal regime of joint ownership, in both its forms (common and temporary, respectively forced and perpetual) is analyzed, from a critical point of view, with special regard on the second type. The author analyzes the differences between the legal regime of these types of ownership established under the Civil Code (Law no. 287/2009, as republished) by comparison with the regulation of the Civil Code of 1864. The inconsistencies instituted under the new regulation, the illegitimate and unconstitutional nature of some of them, as well as the recent legislative amendments intervening in this respect are analyzed, all these being accompanied by examples extracted from the Romanian and foreign jurisprudence.
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New regulatory agency contract and the new regulatory liability, both contained in the new Civil Code, has some innovative features, such as to update the rules of private according to the needs of contemporary society. Legal provisions are yet perfectly, returning doctrine designed to further research in this area. Quality and consistency can be confirmed by jurisprudence equitable solution, thoroughly motivated, able to offer real victims a chance to repair the damage by restoring the previous situation.
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The author conducts a thorough analysis of the legal content regarding the crime of misappropriation of public tenders provided by art. 246 of the new Criminal Code, incrimination ex novo. With reference to the structure of this infringement, the object of criminal protection, the subjects, the objective and subjective aspect, the forms, modalities and sanctions provided by the law are examined in detail. Within the complementary explanations, the connections of the misappropriation of public tenders with other crimes and some procedural aspects are tackled with. Further, the legislative antecedents of this incrimination regulation, the solutions to be followed in case of occurrence of temporary situations and some elements of comparative law are presented. The author does not hesitate to express his opinion as regards the constitutional content of this criminal deed, its systematization and nature and to advance some of his own solutions and ideas related to this aspect. Towards the ending of this analysis several conclusions and proposals de lege ferenda are presented in order to determine an appropriate protection of the values and social relations concerned by this incrimination, an unitary enforcement of the text and implicitly a better performance of the criminal justice within Romania. -
In case of the minors aged between 14 and 18 years old, who are liable from the criminal point of view, the presumption according to which their judgment has not reached its maturation, but is in full process of development and stabilization is instituted. In view of these circumstances, minors under this category of age do not have the psycho-physical ability to fully become aware of the gravity of the perpetrated crimes and, especially, their injurious consequences on the social values protected by means of criminal regulations. Given this context, the author claims that the new Criminal Code excludes the possibility of enforcing punishments in case of under aged criminals and establishes a specific system of criminal penalties, entitled educational measures, classified into two categories: educational measures without deprivation of liberty and educational measures with deprivation of liberty.
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This study accurately describes some of the controversial aspects within the labour legislation: applicability, in terms of probation, of the regulations regarding the period of probation, concluding that art. 31 par. (3) of the Labour Code (termination of the employment agreement without notice and justification) is also effective in this case; decrease of working time from 5 business days to 4 business days per week in case of temporary reduction of activity, with the specification that the alteration of this program can only be operated if a minimum 30 business days reduction of activity has already occurred; the deadline by which the employer must enforce disciplinary sanctions, pointing out that the deadline of 30 days is computed as of the date the employer receives the disciplinary investigation report which qualifies the deed of the employee as disciplinary offence, while de deadline of 6 months is computed as of its time of perpetration; the parties to the collective negotiation at the unit level and the parties to the collective employment conflict at the same level, stating that, in case of such conflict, only the representative union or the employees’ representatives, as the case may be, can act as party on behalf of the employees and not the representative union federation which, under certain conditions, can participate in the collective negotiation; cumulative number of employment agreements with different employers, specifying that, basically, no definite and generally valid answer can be given, as the position of each employer within such agreements is fundamental (if accumulation is accepted and to what extent). In conclusion, the settlement by law of these controversial aspects is suggested.
