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The judicial activity of the courts of law is meant to guarantee the fundamental rights and freedoms of the citizens, to ensure the observance of the supremacy of laws and to prevent the abusive exercise of power by the state representatives, thus having a fundamental function manifested in the form of the judiciary, within the constitutional architecture of Romania which is based on the classical theory of the separation of powers in the state. The Fundamental Law and the infra-constitutional legislation contain provisions meant to guarantee the independence and impartiality of the representatives of the judiciary, necessary to ensure the fulfilment of the jurisdictional function by these, respectively the correct interpretation and application of the laws. The increased importance of the creative role of the judges has led to its definition in the doctrine as being jurisprudential law, lately a cause for its strong development being the very increase of the activity of legislation, of regulating the conduct of the subjects of law by the state, in a multitude of areas of social and economic life. The amplification of this operation has led to the impossibility of regulating these conducts in detail by law, so that the executive and, respectively, the judiciary took over the task of ensuring the completion of the general framework provided by the legislative. The possible conflict between the legislative activity and the interpretation given to the legal norm by the judge may lead to situations in which the right be recreated, by way of interpretation. The current normative framework applicable in Romania allows to engage the liability of magistrates (prosecutors and judges) for the defective way in which they exercise their professional activity, their liability can take several forms, namely criminal, disciplinary or civil liability, depending on the consequences they generate. -
In the hypothesis of foreign arbitration awards, in order to obtain the approval of the enforcement, pursuant to Article 666 of the Civil Procedure Code, to the application for enforcement, the creditor will have to attach the foreign arbitration award translated by an authorized translator, under the conditions of Article 150 (4) of the Civil Procedure Code, and the final judgment by which it was approved, under the conditions of Article 1127 et seq. of the Civil Procedure Code, the enforcement on the Romanian territory of the respective arbitration award. To the extent that the foreign arbitration award on which the application for enforcement is based is not translated by an authorized translator, the court executor should issue a conclusion refusing to open the enforcement procedure, pursuant to Article 665 (2) of the Civil Procedure Code, for non-fulfilment of this condition provided by law. If, however, the court executor would proceed, in the absence of the submission of the foreign arbitration award translated by an authorized translator, to open the enforcement procedure and would request the approval of the enforcement, we consider that the application for approval of the enforcement should be rejected, pursuant to Article 666 (5) point 2 of the Civil Procedure Code, since, in such a situation, the court executor does not prove, in the incidental legal conditions, the existence of an enforceable title.
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The paper intends to emphasize the importance and echo of the motivation of jurisdictional acts given in the operation of individualization of procedural measures, with emphasis on preventive measures in criminal proceedings. The analysis is imposed in the recent social and legal context, in which the individual freedom of the person is subjected to particular trials and must be preserved, an objective finally achievable through the analysis and rigorous argumentation of the acts of disposition elaborated by the judicial bodies.
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The present research intends to analyze the issue of certification of the European Enforcement Orders from the perspective of the regulation provided for in Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, from the perspective of the provisions of the Romanian Civil Procedure Code and also from the perspective of recent European and national case law in the matter. Therefore, the study aims to analyze the object, the scope of application, as well as the certification conditions of the European Enforcement Orders. In order to elaborate the study, there will be analyzed with priority the current European and national legislative provisions, the specialized doctrine, and also the relevant case law in the matter.
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The persons without discernment, being incapable of understanding at all the gravity of their own deeds, are protected by the legislator by the establishment of a cause exonerating civil liability. However, for reasons of fairness, it was opted to introduce the subsidiary mechanism of the obligation of compensation, an innovation of the Civil Code that entered into force in 2011. Thus, even unaware of their own acts, a person may still be obliged to pay a certain amount of money which may, but not necessarily, be equivalent to the damage suffered by the injured party. The mechanism thus created tends to mitigate an inequity, but it is confused with a type of actual civil liability, be it objective. The present study aimed to analyze this mechanism, taking into account its jurisprudential applications, not numerous, but sufficient to draw some useful conclusions.
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Comentariu la Sentința penală nr. 1564 din 9 mai 2019 a Judecătoriei Timișoara și la Decizia penală nr. 903/A din 24 septembrie 2019 a Curții de Apel Timișoara
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The provisions of Article 320 of the Law No 95/2006 on health reform have raised serious problems of interpretation in judicial practice. The question has therefore been raised as to whether persons who have suffered physical injury may be required to pay their hospital costs of hospitalization and medical treatment in the healthcare facilities concerned, where the author of the injury has not been identified or the injured party does not disclose his identity, or where he is simply not liable for criminal action. The question was also raised as to whether the injured party had failed to make or withdraw his plea or had the parties reconciled or not committed the offense claimed.
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Parole was defined in Romanian doctrine as a way to individualize the execution of the custodial sentences, without deprivation of liberty, granted by the final decision of the court which are the conviction that the convicted person has been rehabilitated, as a result of meeting the required conditions during the execution of minimum statutory sentence, there is the semi-open or open regime of enforcement, the person has fulfilled his/her civil obligations, as well as subject to full fulfillment, under probation services, within supervision, of the measures and obligations. As a legal nature, the parole represents a post iudicium individualization of the execution of the custodial sentences and involves the release of the convict before the full execution of the sentence because the convict has proved that he has made obvious progress towards social reintegration. However, the parole is not a right of the convict not to serve the entire sentence, but a legal instrument by which the court finds that it is no longer necessary to continue the execution of the sentence in detention until the full period established by the final conviction has been fulfilled and the early release poses no danger to the community.
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It is necessary in the Romanian criminal procedural law to differentiate the conditions for the exclusion of derivative evidence from the conditions for the irradiation of nullity in continental law and to move them closer to the criteria of the fruit of the poisonous tree originating from the United States of America. We adapt these criteria and other criteria from foreign law systems to the context of Romanian law through the standards of the European Court of Human Rights. One of the conditions for excluding the derivative evidence is that the infringement from which it derives requires the exclusion of the resulting evidence to ensure the fairness of the proceedings. The derivative evidence has the capacity to convey the effect of the violation of the rights of the defence, the right to privacy or domestic law on the fairness of the proceedings, but in such situations the unfairness of the proceedings must be established on a case-by-case basis. The unfairness can be automatic if the infringement concerns Article 3 of the European Convention on Human Rights or consists in entrapment by law enforcement officers. The consequence is the automatic, absolute or relative exclusion of derivative evidence, depending on the nature of the infringement. The derivative nature of the evidence is determined quasi-automatically in the case of entrapment. In other cases, it must be concretely established, on the basis of the conditions of the causal link between the infringement and the evidence: the effect of the primary evidence and the effect of the unlawfulness on obtaining the derived evidence. The conditions for the exclusion of derivative evidence have consequences for its applicability. The sanction is not applicable when the primary evidence is not obtained illegally, but is inadmissible by its nature, because in this case the unlawfulness is missing. This condition is met in the case of acts such as arrest, therefore the exclusion of derivative evidence is applicable. The effect of the infringement is transmitted by means of the stress test in the case of early exclusion, occurs directly in the case of a continuing infringement and must be analyzed, mutatis mutandis, in the case of alternative means of proof concerning the same evidence. Since in the case of the irradiation of nullity according to the continental model the effect of the primary evidence is irrelevant and the effect of the unlawfulness is established in the abstract by law, the sanction is distinct from the exclusion of derivative evidence.
