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The 1990s brought a radical change in relation to the theoretical and methodological reflection in the matter of judicial comparison. We became aware not only of the shortcomings of the idea accumulations in the comparative law of the middle of the 20th century, but a true change of the ideological paradigm occurred, as well. In the context of the strong accession of the critical movement in the study of law, as well as under the strong influence of the postmodern relativism, the concepts that the comparative law had settled out until 1980s were subject to a strong criticism and even completely rejected at a given time. Generally speaking, the new critical trend showed its interest in the judicial cultures, in postulating the differentiation in law and in a thoroughly contextualized legal analysis. The ideological break which emerged, reflected itself in a conceptual way through a theoretical distinction between the future significance of the classical comparative or traditional law and critical or postmodern(ist) comparative law. This range of action led to the emergence of an ideological stress between the two perspectives, shown in a complex manner in relation to the need for a theoretical and methodological reflection, a definition, a subject matter, goals and methodology. The following pages are intended to comprehend this evolution, focusing on the need for reconcilement between the classical comparative law and the postmodern comparative law.
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In this study, the author Daniel MOREANU, in his capacity as Lawyer, presents certain general considerations regarding the notion and the influence of the “legal transplants” over the law systems, in the general internationalization context predominating over the global market, including, but not limited to the legal field. Starting from a complete definition of this complex notion, the author examines the historical sources of the emergence and development of the notion of “legal transplants”. Noticing that there are controversies in the international legal literature regarding their existence itself, the author presents the opinions of two (2) of the most important authors in the field and further continues to examine the types of “legal transplants” identified by those who have examined this subject in a more detailed way. The taxonomy and the factors which contribute to the success of a “legal transplant” represent as well, interesting subjects and shall represent the object of a subsequent study.
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This study presents one of the issues which is at the boundaries between the civil procedural law and the criminal procedural law, with certain implications of the branches of substantive law in these matters, as well as of certain provisions in the tax matter or in relation to the insolvency procedure. Thus, examining the manner in which the precautionary measures are taken and performed in the criminal proceedings, the authors review a series of problems which are solved in a nonunitary way in the legal practice, such as the object and the limits of these measures, both in the matter of movables and of immovable, including the claims. At the same time, the study examines the possibility of enforcement of the enforceable titles obtained in relation to a person against whom precautionary measures have been taken in the criminal proceedings, especially when there are mortgages taken out over the assets subject to forced execution, presenting the different solutions delivered by the civil and criminal courts in this respect and trying to provide certain benchmarks in the interpretation and enforcement of the applicable regulations.
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During the various conferences organized for the purpose of debating on the regulations of the New Code of civil procedure, but also in the practice, questions have often been raised whose manner of settlement by certain courts leads to the idea that sometimes its provisions are not carefully examined, correlated with another provisions, that the intent of the legislator is not asked, that the texts are not given a historical, systematic, logic interpretation, that is for the purpose of being applied within a conception announced from the preliminary title. The contradictory case law generates the feeling of a deficient operation of justice. There are laudable efforts, materialized in professional meetings of the judges, in order to reach to some convergent opinions in relation to the enforcement of the new civil procedure regulations. Nevertheless, the opinions resulted from such meetings, materialized in “minutes”, even if concrete on many occasions, cannot replace the legal mechanisms related to the unification of the case law. We tried to give an answer to certain problems which were discussed during the professional meetings of the judges, but also regarding other issues in relation to which we noted that there is a certain potential of non-unitary practice. We approached topics regarding: the timely enforcement of the New Code of civil procedure and of certain provisions of the related laws; the procedural situation of the transferor and of his successors (art. 39 of the NCCP); the forced introduction in the case, ex officio, of other persons, in the administrative contentious claims (art. 78, art. 79 NCCP); the institution of the judicial trusteeship, especially in the cases in which the service by publication is disposed; the procedure of regulation of the sue petition, but also of the means of appeal for reformation; the amendment and the supplement of the sue petition; the suspension of judgment; the procedure of the registration of the rights acquired in virtue of the adverse possession; the substantiation of the court order within the legal deadline.
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With a broad practical application, the preclusion expresses the idea of procedural penalty based upon the non-exercise of a right during a given period of time. Nevertheless, we find the concept of preclusion in the procedural matter and also in the substantive matter (art. 2.545-2.550 NCC), where the preclusion is defined as a penalty of civil law consisting in the withdrawal of the subjective right not exercised within the period of time set forth by law or by parties, and this period is known as prefix period or limitation period. In the judicial matter (art. 185 NCPC), the main effect of the preclusion consists in the withdrawal of all the possibilities of valorising the procedural right not exercised within the legal period. On the other hand, we have to emphasize the fact that the preclusion exclusively refers to the exercise of the procedural rights subsequent to the court notification. As a procedural penalty as well, the preclusion has an effect upon the judicial documents executed during the court proceedings, resulting in the annulment of the judicial document executed after the expiry of the legal period, which shall determine the influence of preclusion on the documents executed subsequently to the belated document.
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A dialogue is inherent, we would say it is “natural” in any human community. But when it is institutionalized, being assigned legal meanings and implications, as happens in the dialogue between judges, a specific form of articulation and functioning of the very judicial system, the so-called “dialogue” is actually the fundamental dimension of the system, its inherent and decisive feature. Within the state governed by the rule of law and the constitution, and in the framework of the direct involvement of conventional rules in the national law, the dialogue between the constitutional judge and the common judge has become an essential axis of the judicial function.
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In the regulation of the new civil Code, in relation to the defense of the nonpatrimonial rights, including the personality rights, the concerned person has at her disposal both first instance actions and urgent proceedings judged according to the provisions on the presiding judge’s order, in as far as the specificity and the significance of the intrinsic values of the human being sometimes require a special celerity in „handling” the issues in fact and at least the adoption of certain interim solutions
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Recently Romania became the second country in Europe which decided to adopt special rules for the insolvency of companies that are part of a group. Law no. 85/2014 defines the groups of companies not only directly, but also through a series of related concepts like control and qualified participations. This paper aims to determine what exactly means groups of companies in the particular context of the insolvency procedure. In our opinion, the legal definitions are not very accurate. The reasons, consequences and possible remedies for this situation are discussed in the paper.
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The territorial jurisdiction requires a separation of powers vested upon courts of the same instance, after establishing the material jurisdiction for a particular dispute settlement, being known that the Romanian judiciary, with the exception of the High Court of Cassation and Justice (in Romanian ÎCCJ), includes, horizontally, several court of the same instance. This separation is carried out by construing the territorial jurisdiction rules, set forth in the New Code of Civil Procedure 11(NCPC) – Book I, Title III, Articles 105 – 118 and in certain provisions and special laws. The territorial jurisdiction forms are: the general territorial jurisdiction, the alternative and optional territorial jurisdiction, the exclusive or exceptional territorial jurisdiction, the conventional territorial jurisdiction.
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The work proposed a principled assessment of the place and the standards that the enforcement procedure by seizure aimed at capitalizing the claims to the State must hold, comply with respectively, taking the stand upon the fact that the procedure in question is subject to controversial national rules with negative effects in practice.
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Subject to the provisions of Article 102(1) of Law no. 71/2011 for the implementation of Law no. 287/2009 on the Civil Code, the contract falls under the incidence of the provisions of the law in force by the time it was entered into in all respects relating to the conclusion, interpretation, effects, execution and termination thereof. The enforceable deed of a contract means that it can be subject to enforcement at the request of the creditor whenever the debtor fails to fulfill voluntarily the obligations incumbent upon the same, in accordance with the contractual undertakings thereunder. This means that the contractual obligations undertaken by the parties and the possibility to proceed to enforcement of the deed finding the relevant contract, in the sense of right to obtain enforcement, are closely connected. The new Civil Code defines for the first time the concept of „cause of action”, which encompasses both the right to conviction proceedings and the right to enforceable proceedings. Therefore, in terms of legal nature, the right to obtain enforcement is circumscribed, in terms of the new Civil Code, to subjective rights that make up the legal content of the deed concluded by the parties, so that it is part of the effects in the whole it produces. Therefore, the concept according to which the right to obtain enforcement has procedural character was abandoned by the current Civil Code, retaining that the possibility to get enforcement is not an end in itself, but the means necessary to achieve the final end.
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