Consideratii asupra reglementãrii reprezentãrii succesorale în noul cod civil

Author(s): Bob Mircea Dan / Language(s): Romanian Issue: 01/2011

Settlement on inheritance by right of representation under the Romanian Civil Code of 1864 stands for ad litteram taking over of Napoleon texts in 1804. Historically, the latter are the outcome of distorted takeover in medieval legal science of succession in locum technique coming from Roman law. These distortions have led to operating rules that, in the 20th century, have been criticized on the fictional character and the impossibility of representation of the unworthy and the waiver. The new Romanian Civil Code enacted in 2009 gives up the medieval theory of fiction and considering the civil codes reforms in the Canadian province of Quebec (1994) and France (2001 and 2006), it allows representation of the successor waiver; the draft law for implementation expands it for the unworthy, as well. The material hereby aims to clarify the Roman meaning of successio in locum and the weight of its influence over subsequent periods. It is studied thereafter the figure of inheritance by right of representation in the modern era encodings (19th century), with subsequent criticisms and reform proposals. The third part of the analysis is intended to explain the decisions taken by the Romanian legislature for the new civil code, in the general framework of European comparative law of succession.

Riscurile în contractul de leasing

Author(s): Ilie Alexandru-George / Language(s): Romanian Issue: 01/2011

This article frames a new vision on the consequences of fortuitous destruction of property standing for the lease agreement’s object. It is hereby attempted a reanalysis of the legal nature of user rights and accurate identification of general rules that would apply to risks under the lease agreement, with the view to conclude that the special rule required provided for in Article 10 (f) of Government Ordinance no. 51/1997 is not divergent as to these ones. The user’s right to use is not to be assimilated to the lessor’s right, since it fails to display the characteristics of a right to claim, but rather of a real right. The right of option conferred upon the user is not a right to claim, either, but a potestative right. Distinctions are made between property risk, contract risk and duty risk. In case of fortuitous destruction of property, the rule of law applicable is Article 971 in the Civil Code (applicable not only to property translative agreement, but also to real rights translative agreements, provided that the actual effect of the Agreement is automatic), or, alternatively, the general rule res perit debitori, derived from Article 1020 in the Civil Code (in those cases in which alienation does not automatically generate the real effect, which is still dependent on the alienator’s act). Application of the rule res perit domino in the leasing field is defective because, on the one hand it is a false rule in contractual matters and, on the other hand, the agreement is not translative of ownership If the financial corporation has submitted rights arising from the sales agreement concluded with the supplier, he has fulfilled his essential duty, therefore the legislature’s option so that the financial corporation retains the right of lease installments is fair. Should a party fulfill its contractual duties, it is entitled to consideration, even if the right transferred passed off fortuitously. This being the case, we do not deal with a waiver to the rule of res perit debitori, the issue of contractual risks not occurring in the technical sense. The single real problem at issue relates to the property work, which is divided among holders of rights exercised over the property. The risk associated with the payment of residual value is incumbent upon the financial corporation because, contractually, it can no longer perform its duty to sell the property (res perit debitori). On the other hand, it bears the property risk within the boundaries of right it enjoys. The insurance indemnity received by the financial corporation can only be kept within the limits of its insurable interest. This insurable interest consists in the residual value and the guarantee that compensation, as replacement of property destroyed, confers upon the financial corporation for the payment of lease installments. The right to a share of the insurance indemnity is conveyed as an accessory right over the property constituted under the user’

Interpretarea dreptului. de la conceptul roman de interpretatio la interpretarea modernã prin adagiile latinei juridice

Author(s): Sambrian Teodor / Language(s): Romanian Issue: 01/2011

The work is divided into six sections. In the preliminaries, we precise the that Romanian authors do mention while interpreting law. In the second and third sections, we do discuss the main causes which brought as necessary the development of interpreting law as an institution. The interpreting forms employed in Roman law are evoked. We do approach the methods used for interpreting law (in the fourth section) and we propose the substitution of the designation as „grammatical interpreting” by the designation: „linguistical interpreting”, understood as an aggregate of procedures used for analysis – in etymology, semantics and grammar – in order to elucidate the sense of a normative or juridical act. The fifth section, the most extended one, is dedicated to the Roman principles and rules applied in order to interpret law, and to the way through which they were transferred, through juridical Latin, into Romanian law. This process involves as well legislation by itself and the great juridical tomes of doctrine. In the sixth section, where conclusions are drawn, we do launch the proposal of elaborating a dictionary of juridical Latin, which ought to be more panoramic than the dictionaries of this kind published in Romania until now, and which should contain, inter alia, all the Latin words, phrases, adages and quoted passages which should be relevant, as they are actually used by Romanian works in private and public law.

Reglementarea probelor în noul cod de procedurã civilã

Author(s): Ioan Leş / Language(s): Romanian Issue: 01/2011

The new Code of Civil Procedure, adopted by Law no. 134/2010, promoted a new conception of evidence in civil matters, giving up their dual regulation, in both the Civil Code and the Code of Civil Procedure respectively. We judge this solution salutary, as evidence belongs to civil or criminal proceedings in their entirety, issue consistently reported by the doctrine of last decades. In fact, in civil matters, the evidence is only a means of supporting law, of laying stress on it, and not a component of substantive law. The study hereby does not perform an exhaustive research of evidence regulation method in the new Code of Civil Procedure, hardly achievable undertaking within a common study in a professional magazine. Therefore, the author gives us just some relevant reference points related to innovations brought by the new procedural legislation in the matter insomuch substantial of evidence means. The author’s research does not relate only to the means of evidence covered under the new Code of Civil Procedure, but also to some of their general requirements for admissibility. The author points out that the legislature has taken over part of the current regulations, concurrently promoting innovative solutions in terms of some means of evidence, such as documents and material evidence. The authors of the new Code of Civil Procedure did not ignore the regulations promoted under the newest codes of civil procedure adopted in recent decades, either, such as the French, the Spanish, the Swiss or even the Canadian province of Quebec codes. The author performed a more thorough analysis in relation to new evidence means, such as documents on IT support, electronic documents and to the material means of evidence, focusing on issues involved in their probative value. Interesting approaches are set forth in terms of confession, as well, a traditional means of evidence, in relation to which the legislature has conferred upon, expressly, indivisibility. The author concludes at the end of his study that the new „architecture” of the probative system may contribute, through joint efforts of the judge and the parties, to enhance the quality of the judicial act

Pregled dinamike procesuiranja ratnih zločina u Srbiji

Author(s): Vladimir P. Petrović / Language(s): Serbian Issue: 1/2008

Stranputice denacionalizacije u Srbiji

Author(s): Jovica Trkulja / Language(s): Serbian Issue: 1/2008

The restitution of property is one of the most significant steps of the democratic government after of the overthrow of the authoritarian regime. It represents an important presumption for the political and moral recovery of the Serbian society which was for decades under the thumb of an authoritarian, partisan state and the condition for building the modern democratic society. The Restitution of Property Act and following acts which should mark a break with the practice of violation of human rights in the past long since became reality in other transitional countries. In Serbia seven years after the fall of the Milosevic authoritarian regime there is still no social consensus concerning the adoption of a Restitution of Property Act; thus, Serbia is today the only post communist country in South East Europe which did not pass a Restitution of Property Act. In this context the Government of the Republic of Serbia through the competent ministry, the Ministry of Finance, referred for a public debate on the draft Restitution of Property Act. The public debate lasted during October and November 2007. This article is the overview of author's presentation at the round table of the magazine Hereticus concerning the draft act. On that occasion the author dealt with the issue of restitution as a measure of legal overcoming of the authoritarian past in Serbia and tried to enlighten the audience on the causes of long delays of Serbia in passing this important act.

Denacionalizacija: veliko iščekivanje izvesnog

Author(s): Vladimir V. Vodinelić / Language(s): Serbian Issue: 1/2008

A state is not obliged to undertake restitution. Nor were the victims of confiscation of property due to ideological reasons entitled to a restitution of property right. However, the state obliged itself to restitution, most lately with the Act on Recording and Reporting of Confiscated Property from 2005. This Act regulates more than could be concluded from its title; it created a firm legal expectation of restitution which went beyond the point of no return and at the same time determined the restitution method - the restitution of confiscated property and compensation for confiscated property (I). This restitution method was applied by the Act on Restitution of Property to Churches and Religious Communities from 2006. Neither the latter statute nor the draft General Restitution of Property Act (November 2007) use the possibility, created with the annulment of the of state property monopoly at vacant land for building purposes, to restore a principle of "superficies solo cedit". Moreover, the draft does not follow how the Act on Restitution of Property to Churches and Religious Communities elaborated the denationalisation method by undertaking restitution and compensation. Instead, it discriminates against all other beneficiaries of restitution since they would not receive compensation when a church would get it; since they would be compensated for a smaller amount and under the less favourable terms than those that apply to the church; finally since they would be compensated within the limits of previously defined funds, while no such restriction applies to the church. As long as there is a different regime for the church, discrimination of others will be contrary to the prohibition of discrimination, since there is no justification for this in any objective and reasonable sense and moreover it is disproportionate (II). However, it is not only that in this manner the draft is contrary to the Constitution and the European Convention on Human Rights and Fundamental Freedoms. It is in violation of these acts by annulling, without necessary and justified reason (general interest) and without any compensation, right of lease and easements; in this manner it violates guaranteed right to peaceful enjoyment of possession (IV). The Constitution is additionally violated by prohibited retroactive annulment of legal transactions concerning the disposal of nationalised property; moreover, it violated by prescribing retroactive responsibility for damages on the basis of distinctive presumption of innocence (III). If all these provision become law in force the Restitution of Property Act represents an illegal means for achieving a legitimate objective. In relation to this, other weaknesses are less serious: missing and inappropriate provisions (V). In its current form the draft act cannot put an end to great expectation of legal and certain restitution of property (VI).

Rehabilitacija političkih osuđenika u Srbiji (1)

Author(s): Jovica Trkulja / Language(s): Serbian Issue: 1/2008

Priprema radnog teksta Nacrta zakona o vraćanju oduzete imovine i obeštećenju za oduzetu imovinu

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2008

Rehabilitacija Slobodana Jovanovića: Dokumenti

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2008

Zahtev za rehabilitaciju

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2008

Osvrti, recenzije, prikazi

Author(s): Marinko M. Vučinić / Language(s): Serbian Issue: 1/2008

Marinko M. Vucinic: Do conservatives have the right to vote?

Analiza Baze podataka o prijavljenoj oduzetoj imovini

Author(s): Srboljub Glišić / Language(s): Serbian Issue: 1/2008

In this paper the author tries to determine the extent of accuracy of data entered into the electronic database on registered confiscated property and subsequently demonstrate that restitution of property does not endanger any state or public interest but leads to the establishment of responsibility for individual existence. The author believes that confiscated property registered in the database, which would be subjected to restitution, is significantly smaller (bearing in mind all types of confiscated property) from the overall confiscated property of all types as well as from all types of disposable (previously confiscated) state owned property (mostly part of the monopolies). The principle of replacing (previously confiscated property) which does not exist anymore for some other state owned property (of the same market value) is fully possible and it is legally, economically and socially justified. It encourages the establishment of social and personal responsibility for private property. The author demonstrated that it is not necessary to burden the state budget by issuing the state securities, which would replace the process of property restitution. It would be at the same time financially, socially and politically damaging for the society and the state as well as it would result in having a public debt as a burden for society as a whole.

Loš predlog zakona o restituciji

Author(s): Miroslav Prokopijević / Language(s): Serbian Issue: 1/2008

The law on restitution is just one of the unfulfilled promises of the parties of civic orientation. After October 2000 all the governments avoided its mentioning and hence were postponing this complex problem. The author analyses the reasons for delaying denationalization in Serbia and identifies strong pressure groups interested in maintaining status quo, expenses and complexity of the process and the strength of anti-liberal ideologies of nationalism and socialism as core reasons. The author analyses this lingering pace through the criticism of the Draft Law on denationalization, pointing out its basic weaknesses. He emphasizes that in the current form, the draft is neither meeting the requirements of the prior owners, nor the tax payers, and it does not contribute to the strengthening of notion of the sanctity of property.

Rezultati javne rasprave o Nacrtu zakona o denacionalizaciji

Author(s): Author Not Specified / Language(s): Serbian Issue: 1/2008

Zakon o denacionalizaciji - analiza nacrta iz 2007. godine

Author(s): Zlatko Stefanović / Language(s): Serbian Issue: 1/2008

The Government of the Republic of Serbia through the competent ministry, the Ministry of Finance, referred the working version of the Restitution of Property Act for a public debate. The public debate was organised in November and December 2007. The Centre for Advanced Legal Studies organised a public debate concerning the working text on November 8, 2007 where the author had a chance to give his opinion of the draft. The article is mainly an overview of the author's presentation given at the debate. On that occasion he dealt with several issues; those issues that according to author's opinion form a basis of the act and which are at the same time founding issues for the restitution of the property. Those issues concern subject matter of the restitution, beneficiaries and debtors of the restitution; thus they will be presented in this article.

CORRUPTION IN EUROPE: RECENT DEVELOPMENTS

Author(s): Ada Iuliana Popescu / Language(s): English Issue: 2A/2014

Reducing corruption is one of the world’s many challenges. The fight against corruption is often discouraging. Yet, Europe continues to advance its anti-corruption initiatives. While the fight against has seen some victories, significant gains are few, especially in the Central and South European countries, where corruption is deeply rooted in the ordinary life of their citizens. Indeed, the latest reports from private organizations and public bodies show that no European country is sheltered from corruption. This article discusses some of the latest European developments in the fight against corruption.

Preeminența dreptului. Evoluțiile din doctrina și jurisprudența drepturilor omului.

Author(s): Marin Voicu / Language(s): Romanian Issue: 02/2009

The Charter of Paris for a New Europe states that „the human rights, democracy and the Rule of Law” are prerequisites of „freedom, justice and peace” and that they should be looked upon as the key-stone of the „new Europe”. „The pre-eminence of law symbolises the essence of the Rule of Law and it must englobe every conscience, beacause rights cannot be disassociated from the awareness of rights, thus imposing, in this new european and global context, the launch of the „Etats généraux des droits de l’homme en Europe” formula, in order to generate a new, more efficient mobilising impetus reguarding the effective and concrete guarantee of human rights”. This speech was given on the 30th of January 2009, Strasbourg, on the occasion of the opening of the judicial year 2009, by the acting president of the ECHR, Mr. Jean-Paul Costa, underlining the importance of the common fundamental principles of the Court‘s jurisprudence. Among these principles, the pre-eminence of law holds a central role in assuring the respect of fundamental rights, as being effective and concrete, and not of an illusory nature. In „Hutter-Czapska v/. Poland”, a decision given on the the 19th of June 2006, The Grand Chamber of the Court reaffirms the pre-eminence of law, as a fundamental principle of the Rule of Law in a democratic society, as well as the principle of the trust of its citizens in a State and its laws and the principle of juridical security.

Mecanismele executării private în cazul luării pașnice în posesie a bunului afectat unei garanții reale mobiliare

Author(s): Radu Rizoiu / Language(s): Romanian Issue: 02/2009

Title VI („Legal regime of the security interests in personal property”) of the Law no. 99/1999 regarding the acceleration of the economic reform brings a series of innovations within the Romanian legal system. One of these innovations consists in the possibility given to the lenders who benefit of a security interest in personal property to take some private actions just before enforcing the secured obligation. This procedure is called „peaceful repossession of collateral” and refers to the taking the physical control over the collateral by the secured lender. This procedure should constitute a powerful tool for the secured creditor by which the latter shall insure the cooperation of the debtor in performing the secured obligation. Unfortunately, the practice is still hesitating in making use of this procedure. Aside of the harsh penalties provided by the law in case of nonobservance of the legal framework, the unclearly character of the legal provisions represents a discouraging factor for the creditors. In this paper we will try to demonstrate that peaceful repossession could have a quite generous applicability which is not limited to the cases when the debtor voluntarily hands over the collateral to the creditor. In order to preserve the peaceful character of the repossession it is sufficient for the debtor not to be submitted to violence (either physical or moral) and the third parties not to be damaged because of breaching the peace of the community. Once these two limits are observed, there is a great range of actions at the discretion of secured lenders. For example, avoiding the debtor and, to a certain extent, even the tricking of the debtor could constitute into legal repossession techniques. In these times when the lack of repayment of the loans becomes everyday life, peaceful repossession will become the preferred way of reducing the losses for a large typology of professional lenders: commercial banks, leasing companies and other non-banking financial institutions. It rests with the courts that will judge the disputes generated by such repossessions to set clear rules for actual actions that are within or outside the limits of the law.

Conformitatea lucrului vândut - Între rigiditate tradițională și funcționalism

Author(s): Ionuţ Florin Popa / Language(s): Romanian Issue: 02/2009

The lack of identity between the delivered and the sold item is known as the non-conformity of the sold item. At first sight, the content of this notion can be easily identified, as it is included in the sphere of the so-called „conform delivery” (art. 1314-1335 Civ. C.). But each step in the clarification of this concept brings out new difficulties. This study is aimed at assuming several answers to the big questions related to the conformity of the sold item, as it is regulated by the Civil Code. When trying to circumscribe the concept, the first thing to be done is to distinguish it from other legal notions, such as: hidden flaws (art. 1352-1360 Civ. C.), the lack of security, the error on the substance of the sold item, the misrepresentation or even the eviction, and, on the other hand, the identification of the principles laying at the basis of traditional regulations. In this respect, we took into account the long-time conflict between the materialist (objective) approach and the functionalist (subjective) one, both being born based on the Civil Code texts. Finally, the study is also aimed at identifying potential solutions to this conflict. From the synthetical point of view, the study comprises two parts. The first one is dedicated to the conformity guarantee and the second to the guarantee against hidden flaws. For both of them, we tried to establish the essential and defining conditions, which particularize them, by analyzing the declared differences in doctrine and jurisprudence, which are peremptory between the two guarantees, as well as the real or illusory distinctions between them and other legal notions. The conclusion of a synthesis of the jurisprudence and literature existing in this field is sceptical under the pragmatic and the intellectual aspect. The last section of this article comprises possible solutions for the intellectual labyrinth created by the doctrine and the jurisprudence for these two guarantees.