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The study analyzes the provisions of the Law No 114/2021 on some measures in the field of justice in the context of the COVID-19 pandemic in civil cases. The mentioned normative act provides the conditions for conducting the court hearings in the civil trial by videoconference. The conditions are the following: to be decreed the state of alert instituted in order to prevent and combat the effects of the COVID-19 pandemic also for a period of 30 days from its cessation; to be about a civil case; to have the agreement of the parties in this respect; to have the possibility; the approval of the court of law. The Constitutional Court, by the Decisions No 157/2020 and No 457/2020, has established that the justice cannot stand still, not even during the COVID-19 pandemic, under this requirement the legislator regulating by the Law No 114/2021 the manner of conducting judicial proceedings during this period. However, the legislator did not rise up to the standards imposed by the Constitutional Court of Romania, in the sense that it did not regulate an effective way of access to justice, in the situation where the objective pandemic conditions restrict this possibility. Although we appreciate positively the provisions of the Law No 114/2021 referring to the development of the civil process by electronic means, we consider that the measures ordered should be generalized and not applied, as provided by Article 1 (2), only for reasons generated by the COVID-19 pandemic. -
According to the regulations of the Romanian pension law, persons who, prior to 1 April 2001, worked in the work groups I and II benefit of a series of easements at the calculation of pension rights, as well as of the reduction of the standard retirement age. In this study, the author examines a rich and interesting case law of the classification into the work groups I and II – according to Orders no. 50/1990 and no. 125/1990 issued by the Minister of Labor and Social Protection, the Minister of Health and the President of the National Labor Protection Commission, with the mentioning that, under certain conditions, these Orders also apply to the persons retiring subsequent to 1 April 2001, but who carried out activities classified in the work groups I and II (according to the above-mentioned Orders) prior to such date. -
Very high frequency of facts consisting of possession and sale of cigarettes from smuggling, as well as significant damage to the state budget by committing such acts with adverse consequences exacerbated in the current economic climate, require a consistent jurisprudence to prevent and effectively combat such deeds. Building on the diversity of solutions pronounced by the courts on the legal classification of the offense of possession, outside a fiscal warehouse and by an authorized warehouse-keeper, of unmarked excisable goods for which duty has not been paid and originate form smuggling, the author points out the need to promote a referral in the interests of the law and identifies a possible solution to unify the judicial practice, holding that the said deed meets the constitutive elements of the offenses provided for in art. 2961 par. (1) l) of the Fiscal Code, art. 9 para. (1). a) of Law no. 241/2005 on preventing and combating tax evasion and art. 270 para. (3) of the Customs Code. -
Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale. -
The (Romanian) Labour Code (Law No 53/2003 – republished) regulates (Article 88 et seq.) the legal institution of labour law of the „temporary labour contract”, which has Directive 2008/104/EC of 19 November 2008 as „European” legal basis. In the legal literature of labour law from Romania a controversy has arisen, whether the „mission” performed under a „temporary labour contract” may be considered or not as secondment [within the meaning of Article 45 et seq. of the (Romanian) Labour Code]. The position of the author of this study is firm, in a negative way, and, as a result, the employee in question is not entitled to the special rights regulated for the employees on secondment provided by Article 46 (4) and Article 47 of the Labour Code. -
Înalta Curte reține că aprecierea asupra incidenței în cauză a Deciziei nr. 369 din 30 mai 2017 a Curții Constituționale nu încalcă principiul egalității în fața legii ori pe acela al nediscriminării cetățenilor aflați în situații juridice similare și nu reprezintă o denegare de dreptate, ci este consecința principiului aplicării în timp a efectelor juridice pe care o astfel de decizie le dobândește de la momentul publicării ei în Monitorul Oficial al României, fără încălcarea neretroactivității, un alt principiu constituțional. Atunci când hotărârea judecătorească nu se circumscrie sferei de aplicare a unei asemenea decizii nu înseamnă că prin aceasta se încalcă drepturi procesuale fundamentale, ci se procedează la respectarea unor principii și norme imperative, general obligatorii, menite tocmai să asigure garanții procesuale la care recurenta-pârâtă face referire. -
In Romania there is a special regulation (Government Ordinance no. 79/ 2003) on the control and recovery of Community funds and related co-financing funds misused. In the study hereby it is undertaken a presentation and an analysis on the penalty-related legal liability covered by this particular regulation. -
In this article, the author analyzes the legal nature of the Constitutional Court, a political jurisdictional authority of jurisdiction, whose role consists mainly in controlling the constitutionality of laws and of other acts adopted by the Romanian Parliament and by the Government. The Constituent Assembly of 1991 opted for the institutionalization of the European model of constitutional jurisdiction, according to which a body independent in relation to the powers of the State assumes the role of guarantor of the supremacy of the Constitution. The constituent legislators have preferred to abandon the control of the constitutionality of laws enforced by the supreme court, which was established by the Fundamental Law of 1923. In the constitutional architecture of the Romanian State, designed after the change of the political regime at the end of 1989, the Constitutional Court is a political-jurisdictional body whose legal nature derives from the way in which it is organized and structured, as well as from the attributions conferred to it by the Constitution. At the same time, the Constitutional Court also appears as a regulating body of the public authorities with governing powers in the state, which it obliges, through its decisions, to return to the constitutional legality. The author highlights both the political and the judicial nature of the Constitutional Court and shows that there must be a balance between the two essential characteristics of this public authority, in order for it to fulfil its constitutional role in a complete independence and impartiality and not to transform itself into a political tool for solving the relations between powers, especially between the legislative power and the executive power, which should benefit to one or another of the political actors. -
On the strength of Art. 322, item 4 of the current Romanian Civil Procedure Code, the review of a decision that remained final in the appeal court or through the fact that no appeal was submitted against it, as well as the review of a decision issued by a recourse court (when the merits of a case is invoked) may be requested, inter alia, also if “a judge, witness or expert who took part in the lawsuit received a final conviction for any crime regarding a case or if a decision was issued on the strength of a writ that was declared false during or after the lawsuit or if a magistrate received a disciplinary penalty for exercising his office in bad faith or with gross negligence in that case”. The author is discussing in this study the manner in which a civil court must proceed if, at present (for the reasons provided by the criminal law), the perpetration of the abovementioned crimes can no longer be ascertained under a criminal decision. -
In this study the authors intended to investigate the procedural rules specific to the judicial control of the acts issued by the public authorities in the matter of restitution of properties taken over by the State during the communist regime, as well as the processual guarantees enjoyed by the persons concerned for the effective exercise of the right to a fair trial and the right to respect the goods regulated by Article 6 paragraph 1 of the European Convention on Human Rights and, respectively, Article 1 of Protocol No 1 to the Convention. During this scientific process, the authors have identified the shortcomings of the legislation in the matter and have formulated de lege ferenda proposals for complying with the Pilot-Judgment of the European Court of Human Rights in the Case Maria Atanasiu and others against Romania, whereby it has been decided that the Romanian State takes measures to guarantee the effective protection of these rights. The proposed legislative amendments have as purpose to re-open access to justice for the eligible persons, in compliance with the requirements of ECHR law, in the cases where public authorities refuse to resolve their requests for restitution of buildings abusively taken over by the State.
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In this study, the author fights – with arguments – an opinion that remained isolated in the Romanian civil law doctrine (an opinion according to which art. 32, paragraph 1 of Law no. 18/1991, republished on 5 January 1998, a text according to which certain categories of terms, assigned according to art. 18 paragraph 1, art. 21 and art. 43 of this law, cannot be transferred for 10 years to the company from the beginning of the year following the year in which the registration of the property was made under the penalty of absolute nullity of the deed of transfer would have been abrogated by Laws no. 54/1998 and no. 247/2005).
