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Donația poate privi nu doar un bun determinat în materialitatea sa, ci și o universalitate de bunuri prezente și viitoare, precum și o fracție determinată ori determinabilă din patrimoniul donatorului. Prin urmare, contractul de donație era perfect valabil între părți, producând efecte juridice erga omnes (prin formalitățile de publicitate realizate în acord cu art. 58 din Legea nr. 7/1996, în forma inițială, câtă vreme pentru terenul pentru care se emisese titlul de proprietate conform Legii nr. 18/1991 nu exista carte funciară deschisă, ci doar mențiune în registrul de transcripțiuni). Faptul că donatarul a dispus asupra cotei sale determinate din terenul care urma a fi supus procedurii de ieșire din indiviziune nu invalidează liberalitatea, fiind în mod evident că odată cu partajul – convențional sau judiciar – cota parte dobândea doar atributele de materializare fizică (existența ei fiind însă certă de la momentul nașterii stării de indiviziune). -
The rental of safe deposit boxes shall be regulated by the Civil Code (Law no. 287/2009) within the banking agreements, together with the current bank account, deposit and credit facility. The above mentioned regulation makes obvious a special agreement, customized by its content, different from the civil deposit and from the rental. Being concerned with the protection of the client’s valuable goods, the legislator allocates a larger space to the access to the safe deposit box – voluntarily or in a forced way (art. 2197-2198). This study examines the rental of the safe deposit boxes according to the Civil Code in the classical way of approaching the agreements. -
In this study the authors criticize an isolated opinion (the vice of consent of lesion is inapplicable to the individual labour contract) expressed more or less recently in the Romanian legal literature. The provisions of Article 1221 and (limitatively and partially) Article 1222 of the Civil Code supplement the provisions of the Labour Code. On the other hand, Articles 1223–1224 of the Civil Code are completely inapplicable in case of individual labour contract. -
Suspicious death is one of the key legal institutions on the right to life. This study aims to present the concept of suspicious death in Romanian law, its evolution and the relationship between its legal provisions and Article 2 of the European Convention of Human Rights. Even though impossible to quantify at present moment, many of the abuses committed by agents of the communist regime, abuses which led to the death of their victims, may constitute reason enough to consider them suspicious deaths under Romanian criminal law. Article 2 ECHR, from a procedural point of view, may be interpreted as obliging the Romanian state to organize an effective investigation into the circumstances that led to the deaths of the opponents of the communist regime in Romania, if and when the circumstances in which the death occurred raise the possibility that that death to be a result of an abuse committed by an official of the Romanian state or in his or her custody.
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In this study the author gives an overview of the facts of unlawful fell down and theft of trees, of their incrimination as offences or contraventions, analyzing afterwards the incidence of the case law of the European Court of Human Rights in this matter, the study ending in some de lege ferenda proposals and best-practice proposals on problematic aspects in this matter. -
The authors, examining the provisions of the Government Emergency Ordinance no. 51/2008 regarding legal public aid in civil matter, consider that, although this regulation does not comprise any provision regarding its incidence in relation to the payment of a security (due, according to art. 403 of the Romanian Civil Procedure Code, for suspension of the enforcement until settlement of the challenge to enforcement or of other application regarding enforcement), the rules and principles of the above-mentioned regulation also apply to the security mentioned, taking into consideration the provisions of art. 6 of the (European) Convention on Human Rights and Fundamental Freedoms, corroborated with the case law in the matter of the European Court of Human Rights in Strasbourg. -
After the entry into force of Law no. 118/2010 (3 July 2010), one has wondered if the provisions of this Law, regarding the reduction – for the staff of the budget units – of the wages by 25% is applied also in the case of the teaching and auxiliary personnel within the budgeted education units, and with respect to pecuniary rights related to the leave of absence for July – August 2010. By evoking controversial solutions in terms of jurisprudence, the author, following an exhaustive analysis of the regulations in the field, reaches the positive conclusion (therefore the reduction of said rights by 25%). -
The principle of legal contractual certainty, as regards its component the „sustainability and efficiency of the contract”, is a fundamental principle of the contract law, which emphasizes the need to maintain the contract in the cases of partial nullity and which is dealt with under a double dimension: a quantitative one and a qualitative one. The quantitative dimension concerns the „continuity of the convention” in time and is manifested by a soft and extended duration. The qualitative dimension concerns also the context, i.e. the capacity of the contract to overcome the obstacles which the economic and social events can raise, arisen during performance of the contract. The study is focused on the applicability of the principle of contractual legal certainty both in terms of interpretation, as well as of validity and performance of the contract, with references also to the provisions from the draft European contract law, an action initiated by the European Commission. -
The verification of scripts is an incident in relation to the literal evidence, more precisely a procedure to which it is subjected a contested written document under private signature. The contested written documents under private signature may be subjected to a verification procedure either by principal way, by a preventive action, having exclusively such an object, or by incidental way, during a trial. The verification of the written document under private signature, by principal way, is admissible, under the conditions of Articles 359–363 of the Civil Procedure Code, if there was not or there is not a trial pending in which that written document had been opposed or is being opposed. Instead, the verification of the written document under private signature, by incidental way, is regulated in Articles 301–303 of the Civil Procedure Code, whose provisions are the object of this study. Article 301 of the Civil Procedure Code regulates the attitude that must be manifested by the person to whom such a written document under private signature is opposed, given that such a written document has no evidentiary power unless it is expressly or tacitly acknowledged or if it is declared as being truthful after being verified by the court.
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The procedure of registration of forgery is a procedural incident regarding the evidence by written documents, which can usually have as its object an authentic written document or a written document registered under private signature. In the case of authentic written documents, the procedure of forgery may be used when the authenticity of the findings made personally by the person who authenticated the document is contested, according to the law. In the case of the written documents under private signature, the procedure of forgery can be used when it is claimed that they have been fabricated, being admissible also in the assumption that such a document has been recognized by its author or has been verified in court, if it is proved that the recognition was the result of an actually excusable error. The investigation and establishment of forgery shall be carried out by the criminal prosecution bodies and criminal examination body or by the civil court, by incidental way, in the event that the criminal action cannot be initiated or cannot continue. The procedure of registration of forgery is applicable regardless of the nature of the forgery (material or intellectual) and false written document is also the one whose content is not real, even if there has not been committed by the operation of altering the reality. The provisions of Articles 304-308 of the Civil Procedure Code regulate the procedure applicable in the assumption of registration of forgery against a written document produced in a pending litigation, in which case the provisions of Article 315, of Article 5491 and of Article 580 of the Criminal Procedure Code must be complied with.
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A systematic analysis of relevant provisions of Law No 554/2004 on administrative disputes, Civil Procedure Code and Law No 192/2006 on mediation and organisation of the profession of mediator takes the author of this paper to the firm conclusion that in administrative disputes regulated by Law No 554/2004 mediation shall not be applied, but only the prior procedure provided by Article 7 of the Law No 554/2004. -
This study aims to debate the question of the moment when the prosecutor should address the preliminary chamber judge in view of ordering the safety measure of the special confiscation, a procedure provided by the provisions of Article 5491 of the Criminal Procedure Code, by reference to the moment of adoption of the processual solution of abandonment of the criminal prosecution, according to Article 318 of the Criminal Procedure Code. As a result of a non-unitary judicial practice, the author elaborates a few theses to decrypt the relevant provisions, he emphasizes the lack of uniformity of the judicial solutions and offers a way of settlement of the legal problem under dispute, which is perfectible.
