UTJECAJ KONVENCIJSKIH NAČELA TUMAČENJA NA POJEDINE GRAĐANSKOPRAVNE INSTITUTE (ODABRANA PITANJA)

Author(s): Gabrijela Mihelčić,Maša Marochini Zrinski / Language(s): Croatian Issue: 78/2018

In this article, the authors examine the impact of interpretative methods and principles, as developed by the European Court of Human Rights, when interpreting the Convention for the Protection of Human Rights and Fundamental Freedoms, by interconnecting them to selected civil law institutes. Those methods and principles are: the autonomous concept, the living instrument doctrine (the evolutive interpretation), the doctrine of effectiveness and, in this regard, the margin of appreciation and positive obligations of states. The article shows how the interpretation of the Convention, in accordance with these methods and principles, influenced actio negatoria and vindication complaint.

APLICAREA PRINCIPIULUI „NON BIS IN IDEM” ÎN CURSUL URMĂRIRII PENALE . STUDIU DE CAZ

Author(s): Daniel Constantin Bosînceanu,Alexandru Peicea / Language(s): Romanian Issue: 32/2017

The adoption of the new Criminal Procedure Code (NCPP) in 01.02.2014 reiterated that a fair trial cannot be carried out by the competent judicial bodies within a reasonable timeframe if, in addition to observing some classical principles (be it of truth, respect for the right to defense, respect for human dignity, and observance of the presumption of innocence), a set of new principles are not respected (i.e., the right to a fair and reasonable process, the right of separating judicial functions, the principle of the opportunity of criminal action, the loyalty of obtaining evidence, the right to liberty and security, and the non bis in idem principle).The new principles outlined above are general rules that exist in the legislation of the European Union states, being the pillars of the modern criminal trial, whose validity and effectiveness have been verified by the judicial practice and by the jurisprudence of the European Court of Human Rights, to which Romania adhered on June 20, 1994.From the category of these new principles, we will then refer to the existence of a genuine cause of impediment to the criminal action (exception rei iudicatae), namely the non bis in idem principle, provided by art. 6 C.proc.pen., and which is a fundamental aspect of the criminal process through which it is realized, both the right to a fair trial provided by art. 6 of the European Convention on Human Rights (CEDO) and the effectiveness of the principle of lawfulness of criminal prosecution.This principle proclaims and guarantees that in criminal proceedings the authorities may apply to a person, for the same deed or for facts that are substantially the same, a single penalty of a criminal nature.The rich jurisprudence of the European Convention on Human Rights in a continuous movement, adapted to the spirit of a modern society, has extended the application of the non bis in idem principle both in the contravention and fiscal sphere, if the offenses have a criminal character, irrespective of whether the sanctions are enforced by the judicial or administrative bodies of the state.The criminal law and the criminal procedural law adopted by the national legislator on 01.02.2014 are in continuous re-establishment on the basis of the pillars mentioned above, many of their provisions (over 60 articles) being declared by the Constitutional Court as not complying with the exigencies of the constitutional court or the European Convention and its jurisprudence.For these reasons, but also because of the direct application in the national law of the mandatory jurisprudence of the European court in the criminal investigation activity carried out by the criminal investigation bodies of the judiciary, as the first link of the Romanian judiciary, cases of violation of the nebis in idem principle started appearing more and more frequently.

EXERCITAREA CĂII DE ATAC A RECURSULUI ÎN MATERIE CIVILĂ DUPĂ VALOAREA CERERII. REVIRIMENT JURISPRUDENȚIAL. NECONSTITUȚIONALITATE

Author(s): Petre Lăzăroiu,Ioniță Cochințu / Language(s): Romanian Issue: 32/2017

La Constitution de la Roumanie consacre le principe après lequel Le Parlement est le forum représentatif suprême du peuple roumain et l’autorité unique du pays, contexte où on lui en attribue le droit de légiférassions en matière des instantes de jugement, respective : „compétence des instantes de jugement et la procédure sont établies seulement par lois”. Par conséquence, la puissance législative a la liberté d’établir la compétence des instantes de jugement et des normatives de procédure judiciaire, sans qu’elle pourrait contrevenir aux autres principes constitutionnels. Dans cet article, nous présenterons quelques aspects sur la dynamique législative en regardant l’exerçassions de la voie d’attaque du recours en matière civile, après la valeur de la demande et dont laquelle règlementation a été soumise du control de constitutionalité, et l’instance de contentieux constitutionnel a constaté que celle-ci, par prisme des évolutions législatives, est non-constitutionnelle, donc contraire au des principes de la Lois Fondamentale.

RESPONSABILITATEA SOCIALĂ A JUDECĂTORULUI DE DREPTURI ŞI LIBERTĂŢI LA MOMENTUL LUĂRII MĂSURII ARESTULUI PREVENTIV

Author(s): Iulia Dumitruc / Language(s): Romanian Issue: 32/2017

On a créé l’Institution du juge de droits et libertés pour garantir aux personnes soumises à des actes judiciaires que leurs droits et leurs libertés ne seraient limités qu’en conformité avec la loi et dans une mesure raisonnable en fonction des particularités du cas trouvé dans l’enquête des organes de poursuite pénale. Ainsi, les organes de poursuite pénale ne pourront pas disposer abusivement et d’une manière discrétionnaire des droits de la personne enquêtée, tant mois ils ne pourront pas disposer de la liberté de l’individu visé, parce que le seul organe judiciaire investi par la loi de prendre cette mesure est le juge des droits et libertés.

SCURTE CONSIDERAȚII PRIVIND TERMENUL DE PRESCRIPȚIE ÎN CONSTATAREA CONTRAVENȚIILOR DIN DOMENIUL CONSTRUCȚIILOR

Author(s): Mihai Dorel Vlad / Language(s): Romanian Issue: 31/2017

Exercising the right to build authority and administrative acts issued in its implementation requirements generates an extensive litigation, the more that target multiple and varied public interests and / or existing private. Failure to comply with current laws generates a contentious annulment (ie administrative court) and a liability litigation (administrative and criminal or civil prosecution). Referring to the overall context of responsibility in the field of urban planning, in the jurisprudence of the Constitutional Court has found that "the work of building or demolition of buildings of any kind must comply with the requirements of law and" the legal status of buildings not related to the protection right property. To the extent, however, () the exercise of ownership deviat from mandatory legal provisions, the owner of the property will incur penalties established by law without being able to defend citing the constitutional principle of protection of property.

RAPORTUL PREZUMȚIEI DE NEVINOVĂȚIE CU ALTE GARANȚII ȘI INSTITUȚII PROCESUAL PENALE

Author(s): Bogdan David / Language(s): Romanian Issue: 30/2017

The presumption of innocence is a fundamental right of citizens and an essential component of the right to a fair trial. However, there is no legislation or jurisprudence in Romania to explain how the presumption of innocence works, to ensure its effectiveness and to impose sanctions in the event of its breach, namely measures to remove acts or facts that violate it , But it remains at the level of the principles and rules of law not implemented by subsequent legislation

GRAȚIEREA – ASPECTE CRIMINOLOGICE ȘI DE DREPT PENAL SUBSTANȚIAL

Author(s): Victoria Cristiean / Language(s): Romanian Issue: 29/2017

The reprieve is a way of individualizing the penalty by which the criminal coercion is done and which meet one of the functions of punishment, reeducation. In our study we showed the procedure of granting reprieve, its historical aspects, comparative law issues and positive and negative effects of of this act of clemency.

REGLEMENTAREA FALIMENTULUI PERSONAL - O EXIGENȚĂ ACTUALĂ

Author(s): Olesea Plotnic,Ana Ilana / Language(s): French Issue: 29/2017

ACŢIUNEA ÎN REVENDICARE – POSIBILE MIJLOACE DE PARALIZARE

Author(s): Diana Ramona Ciocârlan (Hurmuz) / Language(s): Romanian Issue: 27/2016

The claim action constitutes the primary weapon governed by the romanian legislation in order to defend the property, and its juridical usefulness is undeniable. The changes made to this action by the new civil code are in agreement with how this civil law institution evolved through time.However, very often, in a dispute of such invoice, the interests of all parties may be valid, the righteousness being somewhere in the middle, and at that time, the claim action remains a weapon to defend the property from the complainant`s point of view and becomes a "violation" of property from the defendant`s point of view.In such a case, the judge's task is not easy at all, because he`s being called to tip the balance in one part or the other.Therefore, it is really important for the case`s fate how the defendant`s argument is made up. Even if we use the principles of law or any other complex legal constructions in order to solve our case, we must not forget that it`s really important to ensure the safety and stability of the legal civil circuit.

ASPECTE SUCCINTE PRIVIND EVOLUȚIA REGLEMENTĂRII URMĂRIRII PENALE ÎN CODURILE DE PROCEDURĂ PENALĂ ROMÂNE

Author(s): Bogdan David / Language(s): Romanian Issue: 27/2016

The study aims to highlight the historical and evolutionary aspects relative to the institution of prosecution as the criminal trial phase. We will highlight the legislative differences from one to another and regulatory every legislative amendment so that the institution of prosecution reaching create fair and equitable procedural framework for each person who is subject to such a process steps.

ACORDUL DE RECUNOAŞTERE A VINOVĂŢIEI

Author(s): Marius Eugen Radu / Language(s): Romanian Issue: 25/2016

Plea bargaining agreement ends when, from the evidence, it is apparent that there are insufficient data on which to act to set in motion the criminal proceedings and the guilt of the defendant. The prosecutor on the case, even prior to initiation of concluding a plea bargain with the offender, namely since the time of the criminal action, must be satisfied, following a legal argument depth, that question is no evidence showing beyond doubt meet all the elements of the offense investigated.

REFLECȚII ASUPRA CAUZELOR SPECIALE DE NEPEDEPSIRE ÎN MATERIA INFRACȚIUNILOR CONTRA ÎNFĂPTUIRII JUSTIȚIEI

Author(s): Victoria Cristiean / Language(s): Romanian Issue: 25/2016

The aim of the paper is to reflect on the special causes of unpunishment in the field of offences against the exercise of Justice placing greater emphasis on the offence of misleading of the judicial authorities and on the offence of perjury.The lack of unpunishments fails to protect one of the most important social values, that of human dignity, because the one against who the untrue complaint or denunciation has been made will be put in a sensitive situation and will suffer materially and morally, and the one against who the perjury has been made suffers a personal injury of his/her rights and freedoms as being exposed to a high psyhical pressure.

CONSIDERAŢII PRIVIND RĂSPUNDEREA PENALĂ A PERSOANEI JURIDICE ÎN NOUL COD PENAL

Author(s): Andreea-Simona Uzlău,Ionuț Uzlău / Language(s): Romanian Issue: 21/2015

The study presents tha main novelties regarding the criminal liability of legal persons as a result of the entry into force of the new criminal legislation. The article provides an overview of the main aspects that govern the regime, being outlined the changes brought by the new Criminal Code, as a result of opinions expressed in the doctrine, such as immunity from the jurisdiction of the public institutions, the application of the fine penalty in the case of a legal person, introduction of a new complementary penalty or the regulation of plurality of crimes in the case of a legal person.

UNELE CONSIDERAŢII PRIVIND REGLEMENTAREA TENTATIVEI ÎN NOUL COD PENAL ROMÂN

Author(s): Ioan Molnar / Language(s): Romanian Issue: 21/2015

L’étude présente la réglementation de la tentative dans le Nouveau Cod Pénale roumain et souligne les éléments de continuité ou discontinuité en rapport avec la même règlementation qui existait dans le Cod Pénale précèdent.

CAPACITATEA DE A MOȘTENI – CONDIȚIE GENERALĂ A DREPTULUI LA MOȘTENIRE

Author(s): Alexandru Peicea / Language(s): Romanian Issue: 21/2015

In matters of inheritance law, the ability to inherit is a positive general condition and the right to inheritance along vocation. In addition to the two general conditions and meet positive and negative condition of the right to inheritance and succession namely disqualification or unworthiness. Depending on their existence at the time the inheritance, we can say that there are people who have or do not have capacity to inherit.

CONSIDERAȚII CU PRIVIRE LA FAPTA VICTIMEI SAU A TERȚULUI, EXERCIȚIUL DREPTURILOR ȘI ALTE CAUZE DE EXONERARE DE RĂSPUNDERE, ÎN REGLEMENTAREA NOULUI COD CIVIL

Author(s): Cristian Jora / Language(s): Romanian Issue: 21/2015

The causes exempting liability were regulated in the new Civil Code, at art. 1351 – 1356, and the legislature was concerned regarding the causes that exclude the very existence of a causal relationship, as a necessary objective tort liability. Certain particular problems arise with regard to the victim’s or third party’s act, the exercise of rights and on other liability exempting causes.

PRINCIPIUL DREPTULUI LA UN PROCES ECHITABIL ȘI LA SOLUȚIONAREA CAUZELOR ÎNTR-UN TERMEN OPTIM ȘI PREVIZIBIL

Author(s): Alexandru Peicea / Language(s): Romanian Issue: 21/2015

The principle of the right to a fair trial was regulated in the old Code of Civil Procedure. This principle has a significant weight in the Romanian judicial system, giving it a system of guarantees that persons who resort to the judiciary to resolve a dispute are protected and respected fundamental rights in court. The principle of the right to a fair trial is designed to enhance the confidence of all persons in court, the European Court of Human Rights is one that reinforces this.

RELEVANŢA DREPTURILOR CONSUMATORILOR DIN PUNCTUL DE VEDERE AL CALITĂŢII VIEŢII

Author(s): Silvia Zaharia / Language(s): Romanian Issue: 21/2015

Our presentation tries to emphasize the possible connections between the concept of „quality of life” and the consumer’s rights domain. The ,,consumer” notion has been approached both in terms of doctrinal and legal regulation starting from the founding schools of the consumer law, having in mind the theories expressed by the two leading representatives of foreign legal doctrine. Subsequently we pointed out the main consumer rights enacted by the Romanian legislator, without omitting new trends in the E.U. in respect of a directive on consumer rights. The end of our study is marked by a presentation of the European Commission's Strategy for Consumers and a brief overview of the issue of alternative means of settling disputes between consumers and traders (A.D.R.).

Charakter bezskuteczności czynności przenoszącej własność stwierdzonej na podstawie przepisów prawa upadłościowego i restrukturyzacyjnego w świetle celu tych postępowań

Author(s): Mikołaj Kondej / Language(s): Polish Issue: 4/2018

The articles concerns legal character of relative invalidity of a civil law act transferring ownership, adjudicated on ground of insolvency and restructuring law. Author tries to find out whether relative invalidity is only an enforcement measure or does it actually results in transfer of ownership of assets back to debtor.

Principle autonomy in marriage contract

Author(s): Olga Rozghon / Language(s): English Issue: 2/2018

Different legal qualifications and unequal standards of family law in some states are due to the peculiarities that influence the formation of acts of family law. In view of this, the choice of the right of one of the proposed legal systems and the creation of an entire set of conflict rules containing «selection rules» in specific practical situations is becoming necessary. The author examined various points of view of the scholars regarding the legal nature of the autonomy of the will of the parties. This article is devoted to the clarification of the concept and legal nature of the autonomy of the will of the parties as the fundamental principle of the collision regulation of property family relationships, which applies in a marriage contract with a foreign element. The article analyzes the key problems of a marriage contract with a foreign element and the application of autonomy in the will of the parties in it