Union of Jurist of Romania Law Review

Publisher:: Union of Jurist of Romania
Publication date:: 2011-09-27

ISBN:: 2246-9435

Issue Number

No. X Special Issue II, December 2019

Latest documents

The Lisbon treaty and the risks of noncoordination of economic policies in the E.U.
Article 5 of the Treaty on the Functioning of the European Union (T.F.E.U.) states: "1. Member States coordinate their economic policies within the Union. To this end, the Council adopts the measures, including the broad guidelines of these policies. Special provisions apply to Member States whose currency is the Euro. 2. The Union shall take measures to coordinate the employment policies of the Member States, in particular by defining the guidelines for those policies. 3. The Union may take initiatives to coordinate the social policies of the Member States.
Aspects regarding the criminalization and investigation of the offences related to terrorist activities in romanian legislation
Starting from the definition of terrorism, this article aims to present and analyze aspects related to the crimes in relation to terrorist activities at the national and European level. First, the article analyzes the offences related to terrorist activities provided by Law no.535/2004 on the prevention and combating of terrorism in Romania, after which the article analyzes the offences related to terrorist activities included in the European Union Directive 2017/541 from the 15th of March 2017 on combating terrorism, as well as in the Council of Europe Convention on the Prevention of Terrorism and the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism. At the same time, the article presents and analyzes aspects regarding the activities of prevention and combating of the offences related to terrorist activities, as well as the criminal investigation of these offences. Finally, the article will establish whether the Romanian legislation regarding the offences related to terrorist activities adapted to the provisions in the field included in the most important legal instruments in the field of prevention and combating of terrorism at the European and international level.
Short considerations on the scope of the right to a fair trial provided by art. 6 Of the echr - the concept of 'criminal charge
The concept of "criminal charge" referred to in the text of article 6 of the European Convention on Human Rights has an autonomous meaning in the conventional protection system, which must be analysed in the light of the principles developed in this matter in the case law of the Strasbourg Court. The purpose of this article, after examining the relevant case law and doctrine, is to highlight the criteria that have been considered by the European court in order to determine whether a certain judicial procedure can be classified as belonging to the sphere of criminal law. At the same time, the article aims to analyze the practical relevance of this delimitation, especially in the matter of the right to a fair trial, to what extent certain stages of the criminal trial or special "criminal" procedures fall under the scope of the provisions of art. 6 of the European Convention on Human Rights, and must observe the fairness requirements of the procedure.
The defendant's right to remain silent and not incriminate himself according to the criminal procedure code. The respect of the provisions of article 6 of the european convention on human rights
A defendant's right to remain silent regarding the actions for which he is prosecuted and to not contribute to his own incrimination represent essential aspects of an equitable criminal procedure law. The article aims to discuss the extent to which the provisions of the Criminal Procedure Code are violated, as well as the provisions of the European Convention on Human Rights in this matter. Based on the right to remain silent and not incriminate oneself as regulated in article 6, the criminal investigators are prevented from obtaining evidence by defying the will of the culprit and not to testify against him. Each accused individual has the right to remain silent and not incriminate himself, although the provisions of article 6 of the European Convention on Human Rights does not expressly mention this right, it is acknowledged by international legal regulations which are found at the center of the concept of equitable trial. The Romanian legislator should take a closer look at the provisions of the Romanian procedural code that currently establish these procedural measures and corroborate them with those of the Romanian Constitution and those of the ECHR.
Considerations regarding the deprivation of liberty of juveniles in criminal matters, in light of national and international regulations
This article aims to identify the international legal framework, especially the European one, as well as the national framework regarding the deprivation of liberty of juveniles in criminal procedure proceedings, starting from the correct implementation of the principles that concern the interest of this category of persons and continuing with the situations in which it can be disposed, as well as the impact that such a measure has on the juveniles, but also on the families from which they come from. At the same time, this article presents, on the one hand, the vulnerabilities presented by juveniles in detention, and on the other hand, their main rights, both at European and national level. The importance of monitoring the places in which the juveniles are detained is emphasized, as well as the need for alternatives measures to the deprivation of liberty of juveniles, depending on the different stages of the procedure in which they are involved. This goal is the hardest to achieve in practice, as there are few possibilities for implementing such alternative measures. The criminal justice system for juveniles must be oriented entirely towards respecting the rights and safety of juveniles, to promote their well-being, both physically and mentally, and the deprivation of liberty should be used as a last resort, only in exceptional situations, when it is absolutely necessary to achieve the goals provided by the legislation in this matter.
Criminological landmarks for explaining causes of crime
The issue of crime stands out to a level ever more debated in the area of current social context. Studying crime involves studying criminals, these two being inextricably linked. We are committed to study the criminal as an individual, so it is impossible to completely cleave the image of the individual from the social picture which is attached to and which marks his existence and evolution. The attention to this scourge which spreads to all levels of society, both at the individual and group of individuals, should be delimited by reference to crime aetiology by highlighting the causes and criminological factors, both individual and social.
About vacant inheritance
An inheritance is considered to be vacant when there are no legal or testamentary heirs or, in case such heirs exist, they are not entitled to inherit the entire successor mass. Vacant inheritances become the property of the village or county where the goods are located at the time of the inheritance and become part of the county’s private property. The procedure by which an inheritance becomes vacant begins by request of any interested party and is finalized once the public notary issues a certificate of vacant inheritance. In case of international inheritances, within the limits of the law which applies, if there is no legal heir for the goods of the successor mass and no legal heirs, the law which applies must not impair on the law of another member state or an entity which is entitled to inherit those goods, provided the creditors are still able to request the payment of their debts from the successor mass. The current paper aims to discuss theoretical and practical aspects regarding vacant inheritances in the context of the unification of European law. From a theoretical point of view, we believe it is necessary for the lawmaker to intervene in order to regulate the title by which the state inherits, because it entails significant procedural meanings, as previously shown. From a practical point of view, the solution to a vacant inheritance is a difficult and expensive procedure. It entails attention and responsibility from the public notary, as, by issuing a certificate of vacant inheritance, certain heirs can be abusively removed from succession, thus being forced to file a complaint in court in order to valorize their rights.
Brief considerations as to the joint exercise of parental authority after divorce
The purpose of this study is to determine whether changes in the legislation on the exercise of parental authority brought positive changes in the lives of children whose parents have divorced. The methods used, i.e. comparison and observation, support the scientific approach in order to draw conclusions on the achievement of the ultimate aim of both legislative changes and study, respectively ensuring the best interests of the child. The rule of joint exercise of parental authority for children after the parents' divorce was introduced in the Romanian legal system at the time of the entry into force of the new Civil Code, respectively in 2011, taking also into account the fact that this rule applies in many other states of the European Union. The best interests of the minor require maintaining the child in a balanced family environment, in the presence of both parents, since the risk of breaking the child's spiritual balance is very high along with his or her giving to one of the two parents. Unfortunately, in most cases where the divorce or separation of parents occurs, the access of the non-resident parent to his/her own child becomes difficult to achieve, in which case it is useful to organize a program of personal relations meant to ensure the continuity of the non-resident parent's presence in the child's life. At this moment it is required the experience of the judge, who, taking into account all the aspects specific to each case, to find the best solution for ensuring the respect of the best interests of the child. The exercise of child joint custody may be beneficial for the child, sometimes not, depending on the attitude of each parent, and the judge will have to choose the best solution for each child, each case being different from the other case. And the parents should be advised and trained by specialized personnel so as to take upon themselves learnedly the new situations that they will face during the joint exercise of parental authority, in order to achieve the best interest of the child.
The dispute over invoking abusive clauses inserated in banking contracts in the trial of a contestation of the execution - alignment to european trends in the matter
The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C-407/18, the case of Ales Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.
About the res judicata authority of the reorganization plan and/or of the measures taken by the judiciary administrator or liquidator within the frame of the insolvency procedure
This paper examines the legal force of various procedural acts delivered within the frame of the insolvency procedure as regulated by Law 85/2014. The study aims to assert the res judicata effects of the syndic judge judgments and to find out if the related procedural acts approved or scrutinized by the syndic judge or issued by the insolvency administrator or liquidator during the insolvency procedure enjoy such effects, concluding that, while not all these acts enjoy res judicata, all of them have binding legal force upon all participants to the procedure and even upon third parties.