REZUMAT NR. 1-2 AN 2005 ACTA SUPPLEMENT ENGLISH EDITION

1. Private Law

THE RIGHT TO HONOR AND THE RIGHT TO DIGNITY

Ovidiu UNGUREANU, PhD*

1. An Overview on Personality Rights
Generally those rights inherent to the status of the human being and relating to any individual by the very state of being a person are characteristics of this concept. These rights are prerogatives and some authors consider them primordial while others fundamental human rights and may be regarded as subjective rights implying a lawsuit1. These prerogatives pertain to any other individual as rights gained ever since birth2.
The personality to which these rights refer to is not limited only to the technical notion of a legal person, to the effect of being a law subject. It would mean more, that is the human being as a whole, as a biological, psychological and social reality.

* Professor in Civil Law (Property) at the „Lucian Blaga” University of Sibiu, Romania, Dean of the „Simion Bãrnuþiu” Faculty of Law.
1 Regarding the legal meaning of the declarations on human rights, it was said that they resided in the mentality of the age that generated them „ the permanent versus the contingent, pure dogma versus the norm adapted to the specific relations of some time, country, universally accepted principles versus the rule meant to implement on the particular opportunities of a given geographic space, the supreme idea versus the work partially accomplished” (T. Drãganu, Drept constituþional ºi instituþii politice. Tratat elementar [Constitutional Law and Political Institutions. Elementary Treatise], Editura Lumina Lex, Bucureºti, 1998, p.103). Concerning the notion „human rights”, see Bîrsan, C. Convenþia europeanã a drepturilor omului. Comentariu pe articole [The European Convention on Human Rights. Comment Article by Article], vol.1, Editura All Beck, Bucureºti, p.5-72.
2 It was emphasised in the doctrine that the protection of personality extends as the ideologies harming it and modern techniques of communication develop: a right does not really come out unless threatened. The growth regarding the protection of personality is determined also by the development of individualism as well as by the fact that the respect of human rights has become a sort of vague religion which tends to make the man sacred (Ph. Malaurie, L. Aynès, Les personnes: Les incapacités, Défrenois, Paris, 2004, p.85). It could have been cynically said: Constitutions have been made for man. „Only there is no man just like that in the world. I have seen in my life French, Italians, Russians etc., I even know, thanks to Montesquieu, that one can be Persian, but as far as man is concerned, I can state that I have never seen him in my life; if he does exist, then he exists without me knowing of him.” J. De Maistre, Consideraþii asupra Frantei [Considerations on France], Editura Albatros, Bucureºti, 2000, p.70).

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THE INDUSTRIAL CONTRACTS (I)

Radu-Gheorghe GEAMANU, Ph.D*

§1. Introduction
An important part of the international trade is accomplished today in the form of small industrial ensembles. This observation is verified especially in the trade between industrialized countries with market economy on the one hand, and in underdeveloped countries, new industrialized countries (NPI1) or former socialist countries, on the other hand.
This fact represents the result of an evolution that has started with the export trade of common consumption goods, followed soon by the delivery of the equipment and technology needed in a growing industrialization, after which, the great at hand contracts (clé en main) have appeared. Today, this evolution is characterized by an installation on the spot of small complete functional ensembles.
The achievement of such an industrial ensemble reflects an intricate procedure that requires harmonious phasing and blending of sundry activities:
- preliminary studies: the setting up of a project, its accomplishment, not only technical but also economical and financial;
- studies: the outlook and detailed conception of the project, the price;
- the obligation notebook ,the supply and demand, and the closure of the contract;
- the furnishing of equipments, either by manufacturing them or by sub-contraction, or by both methods;
- equipment assembling. The tendency is to perform the utmost of assembly or preassembly or prefabrication at the builder and constructor, followed by a simple ensemble and transportation of these prefabricated modules on the building site;
- V.R.D proceedings and civil constructions;
- the „know -how” and licences furnishing;
- tutoring;
- technical assistance;
- starting attempts;
- if need be, a series of first performance or working caterings (especially concerning marketing) even a longer lasting association in the manner of an institutionalized cooperation;
The achievement of an industrial ensemble, from a functional point of view, can be defined as:

* Associate Professor in International Commercial Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 NPI – in French = Nouveaux pays industrialisés.

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THE CIRCULATION OF THE LEASE

Codruþa HAGEANU, PhD*

The circulation of the lease is realized either by changing the lessor or by changing the lessee.
If we talk about changing the lessor, this can be achieved by selling the good which has been rented, by the death of the lessor, and in this case the contract is taken over by his successors (from this point of view the contract isn’t intuitu personae) and by the fusion or division of the lessor as a legal person.
The change of the lessee takes place mainly because of the transfer of the lease contract. As a rule, the lease is cancelled when the lessee dies, the only exceptions being those from the art.27 from Law no.114/1996 and art.12 from O.U.G. no. 40/1999. The sublease does not imply changing the lessee, because the initial lessee is still under obligation to the lessor; however a new judicial report is established between the former and the sub-lessee.
The present paper analyses the circulation of the contract only from the lessee’s point of view, therefore we will only focus on the sublease and the transfer of the lease.
When talking about renting, the Civil Code sets forth , in only one article, the fact that the lessee has the right to sublease and to give his contract to another person, if this possibility hasn’t been forbidden through a special stipulation. The explanation for the terse formulation of the Civil Code must be looked for in the old legal doctrine, which considered that between the two processes there are differences only in the duration of the effects and, in this way, subleasing refers only to a part of the asset while transferring refers to the whole asset1.
The modern doctrine considers that, between the two institutions there are judicial differences since the sublease is a kind of contract similar to the convention between the main lessor and the first lessee and the transfer represents a conveyance (selling, donation, exchange) of the rights of renting2.

* Lecturer in Family Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 Ferrière, Corps et compilation sur la Coutume de Paris, Bourjon, Droit commun de la France, apud M. Planiol, Traité élémentaire de droit civil, tome deuxième, Librairie Générale de Droit et de Jurisprudence, Paris, 1921, p.570.
2 Ibidem. The author states that the difference between the sublease and the transfer is erroneous and chimerical and that there is no interest in creating judicial categories with no practical purpose and that have no result except burdening the law and creating law-suits. Besides, it is shown the fact that a distinction between the two procedures is difficult to be made because we have to look for the parties’ intentions which is often doubtful.

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THE CONTRACTUAL LIABILITY OF THE CARRIER FOR THE DEED OF A THIRD PERSON

Gina ORGA DUMITRIU, PhD candidate*

1. Preliminaries
In the Romanian private law the contractual liability for another party, different from the delinquent responsibility for another party, doesn’t benefit from an own regulation, being the result of a doctrinal interpretation of some isolate provisions belonging either to the Civil Code or to the Commercial Code1, applicable in the matter of some contracts, including of the transport contract. Based on these provisions, the debtor (more exactly the contractor, depositary, mandatary, lodger, and in the end the carrier) is deemed to be liable contractually in relation to the creditor for the third parties’ deeds whom he entrusted the execution of his contractual duties; these might be the auxiliary subordinates, the substitutes or family members of the debtor.
Although the institution of contractual liability for another party was and is still controversial, lately it is more and more recognized2 and, in the legislation of other states, it is regulated expressly3. Even if a general principle of contractual liability for another party is not recognized, in relation to the regulations present in matters of transport contract, the carrier’s liability organized as a transport enterprise cannot be situated but in this juridical perimeter.
2. The Legal Setting and the Substantiation of the Carrier’s
Contractual Liability for Another Party’s Deed The carrier’s contractual liability for another party’s deed is set out expressly in article 1624 of the Civil Code according to which the carrier is deemed to be liable – as a necessary depositary – for the objects in his detention in case these had been stolen or the damage was caused by his subordinates’ deeds or stranger’s deeds.

* Assist. Prof. in Commercial Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 See art.1434, art.1487, art.1542, art.1624 of the Civil Code, art.393, art.423 of the Commercial Code.
2 For a detailed study of the doctrinal opinions for and against contractual responsibilities for another person in the Western and Romanian law, see L. Pop, Rãspunderea civilã contractualã pentru fapta altuia [The Civil Contractual Liability for Another Person], in Dreptul, no.11/2003, p.66-75, with the indicated bibliographical notes.
3 See art.278 of the German Civil Code.

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HISTORICAL REMARKS ON THE APPEAL

Sebastian SPINEI, PhD candidate*

1. Preliminary Considerations. Control by the Courts. The System of Legal Remedies
The fundamental role of a court is to solve the litigations between parties, by means of court rulings. Throughout the evolution of the State and of the law, a number of principles and concepts have taken shape, which exerted considerable influence in the administration of justice and substantiated the idea of resorting to legal remedies.
Res judicata pro veritate habetur and bis de eadem re ne sit actio are ancient sayings that express the necessity that the object of a judgment shall not again be taken into consideration.
No less, the possibility that a judicial error can occur was admitted, due to the fact that litigation solving is – like any human enterprise – a fallible one. Hence, the necessity of reparation of such errors has brought about the devising of instruments for the use of the parties involved.
Such means of reparation of errors in judicando have been known to us since the times of the Roman law, which preserved such ways of remedy at law as iniquitatis sententiae querela1, veto2, supplicatio3 sau provocatio4. Ulpianus’s formula, appelandi usus quam sit frequens, quamque necesarius, nemo est qui nesciat dates back to the same times.

* Lecturer in Civil Procedure at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 It asked from a superior court to revise a first ruling. See E. Garsonnet, Ch. Cézar-Bru, Traité théorique et pratique de procédure civile et commerciale en justice de paix et devant les Conseils de prud’hommes, Librairie de la Société du Recueil Sirey, Paris, 1915, p.11.
2 It prevented the execution of a ruling by means of the intervention of a magistrate of the same rank. See for further details, V. G. Cãdere, Tratat de procedurã civilã [Treatise on Civil Procedure], Bucureºti, Editura Cultura Naþionalã, Bucureºti, 1928, p.379.
3 During the rule of Emperor Theodosius II, the ruling would be presented before the emperor, si contra jus se laesos affirment. For more details, see E. Garsonnet, Ch. Cézar- Bru, op. cit., p.592.
4 A way of remedy at law which was available for third parties. See I. Deleanu, V. Deleanu, Hotãrârea judecãtoreascã [The Judgment], Editura Servo-Sat, Arad, 1998, p.142.

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HISTORICAL REMARKS ON THE LEGAL NOTION OF PROPERTY

Cornelia MUNTEANU, PhD candidate*

1. Preliminary Considerations
Designed as an innate and unprescriptible human right, or as Portalis put it “the universal soul of the legal system”, the right to ownership is the prototype of primary rights. However, the notion of ownership has different meanings, varying with the different ages and different legal, economical and social systems. Thus, in the primitive age, ownership meant appropriation and possession of goods by individuals; nowadays the notion of ownership has been given several meanings according to the different economical, legal, or social point of view. Economically, possession is prior to the legal notion of ownership, given the fact that it has existed, as we shall further see, ever since human beings appeared on earth, alongside with their need to possess goods necessary for their survival1. Besides, the term property often reminds of the very object that the owner appropriated and which, in fact, represents the object of the right to ownership; this is the popular use of the concept. In a legal way, the right to ownership is the expression of the appropriation of goods, the apprehension being turned into a well-established right, protected by the authorities. Apart from these meanings, a different perspective was outlined in the doctrine, founded on the relationship between the individual and the property – based on the idea of freedom, as a fundamental characteristic of human beings – and which generally upholds that ownership means freedom2.
On the other hand, the right to ownership is given a larger meaning, which, apart from any other right to own real or movable property, also delineates other primary rights (as for instance ownership of a usufruct). Some modern legislations use the term ownership to describe the possession of a claim, the property right over a name, the possession of a writer over his work, industrial or commercial possession, that is all incorporeal property. In part, these expressions do not cover the nature and the characteristics of the right to ownership. H. Capitant said that this extension

* Lecturer in Civil Law (Property) at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 For further information, see M. Costin, M. Mureºan, V. Ursa, Dicþionar de drept civil [Civil Law Dictionary], Editura ªtiinþificã ºi Enciclopedicã, Bucureºti, 1980, p.410.
2 M. Djuvara, Teoria generalã a dreptului (enciclopedie juridicã). Drept raþional, izvoare ºi drept pozitiv [The Main Theory of Law (Juridical Encyclopedia). Rational Law, Sources of Law and Positive Law], Editura All Beck, Bucureºti, 1999, p.248-249.

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THE NATURAL PERSON´S RIGHT TO A NAME

Dana Elena MORAR, PhD candidate*

The name can be defined as: “that identification attribute of the natural person, consisting of the right of a human to be individualised, within family and society, by means of the words determined, under legal conditions, with that significance”1. Although the name has received numerous definitions in the speciality literature, in order to replace the lack of a definition expressly provided in a legal text, this definition was preferred in this approach, because it qualified directly the name of the natural person, as being a right. The name of the natural person indicates the family name, as well as the first name, in a broader sense, or just the family name, in a restricted sense.
The name of a natural person belongs to the category of the non-patrimony personal rights, being placed more exactly among the rights connected to the identification attributes of the natural person, together with the right to have a residence, marital status etc. At the same time, the family name, as well as the first name, also concern the private life of the natural person, taking into account the fact that it serves as means for a personal identification, revealing the affiliation to a certain family, as decided by the European Court of Human Rights2. The right to a name, as a non-patrimony personal right is distinguished by the following juridical specific features:
- it is a right opposable erga omnes. Being as indicated above, a non-patrimony personal right, it combines all features of an absolute right3, imposing therefore, the general negative obligation of all passive undetermined subjects, not to perform anything that might affect it or disturb the holder, from its peaceful use. More than that one’s presenting under a false identity or granting a certain identity to another persons, with the purpose of creating an error or maintaining it for the others, and to cause juridical consequences, are provided and punished by art.293, Criminal Code4;

* Lecturer at the „Bogdan Vodã” University of Cluj-Napoca, Romania, Faculty of Law; Attorney-at-law, Cluj Bar Association.
1 Gh. Beleiu, Drept civil român. Introducere în dreptul civil român. Subiectele dreptului civil [Romanian Civil Law. Introduction to The Romanian Civil Law], Editura ªansa, Bucureºti, 2000, p.389.
2 V. Berger, La jurisprudence de la Cour Europeene des Droits de l’Homme, Sirey, Paris, 2002, p.406-407 and 412 (case Burghartz vs. Switzerland and case Guillot vs. France).
3 Gh. Beleiu, op.cit., p.390.
4 O. Ungureanu, Al. Bacaci, C. Turianu, C. Jugastru, Principii ºi instituþii de drept civil. Curs selectiv pentru licenþã 2002-2003 [Principles and Institutions of Civil Law. Selective Course for the Graduating Exam 2002-2003], Editura Rosetti, Bucureºti, 2002, p.139.

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THE RESPONSIBILITY OF THE LANDLORD FOR THE RIGHT ABUSE AND THE ABNORMAL NEIGHBORHOOD INCONVENIENTS

Laura-Maria CRÃCIUNEAN, PhD candidate*

I. The Owner’s Legal Liability in Relation to Abusive Action
The reasons for which we preferred to start this study by presenting the conditions linked to liability for abuse of right in the field of property within juridical literature and French jurisprudence, are closely related to the fact that French authors pointed out extremely good the characteristic elements of the subject in study and clarified the distinction between the conditions concerning liability for abuse of right in the field of property and the conditions regarding liability for abnormal inconveniencies related to neighborhood, by considering them two different mechanisms.
Thus, French doctrine, normally based on jurisprudential solutions, formulates the following conditions1 regarding right abuse in the field of property:
1. an illicit, deliberate action that has to be justified;
2. intention to molest, to tease – therefore abuse signifies that the author acts in bad faith (mala fide) with the unique purpose to tease his/her neighbor; judgment reverts in this case to the judge;
3. existence of a prejudice;
4. lack of utility concerning the act for its author – this condition practically completes the last two to the effect that being extremely difficult to prove teasing intent, jurisprudence deduce the intentional element from the existence of a prejudice against the neighbor and from lack of utility of the act for his author.
The liability of the owner acting abusively is a tort liability for one’s own action, based on art. 1382 of the French Civil Code2 and implies compensation for the victim of the prejudice, in a satisfying manner namely compensation in nature. This

* Assist. Prof. in Public International Law and Constitutional Law, at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 See for details J.-L. Bergel, M. Bruschi, S. Cimamonti, Traité de droit civil. Les biens, Librairie Générale de Droit et de Jurisprudence, Paris, 2000, p.114-115; Ch. Larroumet, Droit civil. Les biens. Droit réels principaux, vol.II, Economica, Paris, 2004, p.117-118.
2 Code Civil français, 103rd édition, Dalloz, Paris, 2004, p.1178, art.1382/ French Civil Code shows that: “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer”. It is practically the translation in French of the dispositions of art.998, Romanian Civil Code: “Any action of a man causing prejudice to another, compels the one whose fault caused this to compensation” (Codul civil român [Romanian Civil Code], Editura All, Bucureºti, 1997, p.127).

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2. Public Law

THE NOTION OF “PERSON WHO DISTURBS THE PUBLIC ORDER” IN GERMAN POLICE LAW

Gilbert GORNIG, Dr h.c*
Ioana RUSU, PhD candidate

A. Introduction
The German police law distinguishes between the preventive and the repressive function of the police. The former function is regulated by the laws of the federal Lands, whereas the second is regulated by federal laws, especially by the Criminal Code. The preventive function of the police pursues the prevention of dangers for the public order and safety, and the objective of the repressive functions of the police is the prosecution of criminals.
If the measures taken by the police in its preventive activity affect the rights of the citizens, these can be taken only on the grounds of an explicit norm. Such competence norms are contained in special federal or Land laws, such as the laws on constructions of the Lands, but especially in the Land laws on public order and safety. The laws on the public order and safety contain norms about the authorisation of the public security authorities1 and the police, but they also contain general norms2 which allow the intervention of the public security authorities and the police in those cases in which a special norm does not apply.
After proving the existence of such competence norm, we must prove if the police had powers of discretion regarding its obligation to intervene and if there is an abuse of such power. The next step is the examination of the correct disturber, i.e.

* Professor, Dr h.c. Philipps-Universität, Marburg and Assist. Prof. in E.U. Law, Philipps- Universität, Marburg, Germany.
1 Public security authorities (in German: Sicherheits- und Ordnungsbehörde) are those authorities which have the function to prevent public dangers. Together with the police, these authorities have the task of preventing the dangers for the public law and order. The police will usually intervene only in those situations in which the danger preventing function was not exercised at all or was not exercised in time by other organs having this function.
2 For instance, article 11 of the law on public order of the Land Hessen states: “The organs of the police and the organs having the task to prevent dangers can take the necessary measures in order to prevent a particular danger for the public order if the following legal norms do not offer a special legal basis”.

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THE PUBLIC SERVICE OF DISSEMINATION OF FRENCH LAW ON THE INTERNET

Stéphane COTTIN*

The French public powers have given for a long time a special attention to the dissemination of their national law. Not only in order to ensure the effectivity of the rule of law and the legal security, but also to assess in a certain manner the influence of the French law at the international level. The recent bicentennial commemoration of the Napoleon Codes, [http://www.bicentenaireducodecivil.fr/] was the right occasion to reaffirm the role of these texts and of the French law in the legal construction of many countries. Nevertheless, France has not waited for the development of the new information technologies to take advantage of their extraordinary facilities as regards the better access to juridical data. Thus, ever since 1960, university labs, in co-operation with the ministry of Justice, the services of the Prime-Minister and the supreme courts, established the first legal databases in the world.
After the especially rich developments during these more than forty years, the ensemble of these public legal databases is ever since the object of an established and protected public service (for a long time in fact, as it is organised by a decree at least from 1984). We shall not emphasise the details of this evolution which were largely discusses (see the bibliography). The regime of this public service, as it results from the last decree of 2002, anticipated the application of the European Directive on the reuse of data of the public sector (maybe it served, in one way or another, as a model for the principles developed in this EC law text?). This field is a very rich incubator of ideas for the public powers. In fact, with a view to make more accessible their funds, the producers and editors of official legal databases try to use the advanced new technologies at their best. The regime of this public service of dissemination of law on the Internet (I) allows, by its particular functioning (II) to accompany or to initiate technological innovations often revolutionary (III), like, among others, the one which allows to propose an authenticated electronic official journal.

* Legal documentalist DESS (Master) Information Documentation Sciences Po, Paris.

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THE NEW CRIMINAL CODE. CRIMES AND OFFENCES ON GENETIC MANIPULATION

Mircea BÃDILÃ, PhD*

In the settlement of the new Penal Code1, in the I-st title, called “Crimes and offences against the person”, the legislator included the IV-th chapter that incriminates the “Crimes and offences concerning the genetic manipulation”, a novelty for the Romanian legislation stating conducts against which the human being is protected in order to insure his natural development.
Alongside the incriminations of crimes against humanity, of crimes against the integrity of the body and of the health of the person, of the offences putting life in danger, the integrity of the body and the health of the person, of the crimes and offences against the liberty of the person, of the crimes and offences against the sexual freedom, of the offences against dignity, against family, of the crimes and offences against the good manners, of the offences against the protection of work and of the offences against the creeds and the respect for the dead, it was also considered important to incriminate three offences through which, having regard to the development of the science at world level, the human person should be protected against the actions of human genotype altering, of genetic structure modification, and of creation for other reasons than the human embryos procreation or the human body cloning.
We’ll offer you a brief analyse of the contents of these offences.
1. The genotype altering (Art.194 Penal Code )
Definition: in this article of the new Penal Code it is incriminated “the altering of the human genotype, intentionally, by any means”.
The juridical object of the offence is the social relationship referring to the protection of the persons, of the human beings against any actions of modification, alteration of the hereditary properties of each organism, or of the genetic individuality of each human being.
The material object is the human body, in its physical integrity. Active subject or passive subject may be any person, the law not requesting a certain quality (according to art.197, besides the physical person, the juridical one

* Associate Professor in Criminal Law (Special Part) at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 Adopted through the Law no.301/2004, published in the M. Of. no.575 from the 29-th of June 2004 (whose entry to force for the September 2006).

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BUILDING THE ROMANIAN MODERN LAW – WHY IS IT BASED ON LEGAL TRANSPLANT?

Manuel GUÞAN, PhD*

I. ROMANIA – A LAND OF LEGAL TRANSPLANT
1. The Romanian Case

Romania could be one of the excellent examples of how the improvement and modernization of one state‘s law may occur (exclusively) by way of legal transplant or by way of a foreign law reception. Between the national legal systems which deliberately received foreign laws, the Romanian case is not as astonishing as are the cases of Japan and Turkey, where the reception process has been realized in the presence of a completely different (from the European one) cultural, juridical and religious background. On the contrary, the import of foreign law in Romania has been facilitated by the fact that the legal evolution on this land has been done on the same common background of Christian culture and Roman-Byzantine law, which was, even though in different forms, the basis for the evolution of law in Western as well as in Eastern Europe. Nevertheless, Romania is, for the Central and Eastern Europe, an interesting case, at least regarding the processes and torments that led to the reception of the Western legal model.
2. Legal Transplant and Legal Weakness
The legal transplant or reception may have internal or external causes in a given society: they prove either the birth, at a given moment, of a need for legal reform inside the society, or the intervention more or less brutal, from the outside, of a factor that determined a legal change without the immediate need for the reform. This is the difference between legislative self-building on the one hand, and imposition or legal imperialism on the other1.
Leaving aside, for the moment, the version of the legal imperialism, one has to notice that the need for the legislative reform appears normally in any human society where the legal order is the only one that legitimates most of the social relationships.

* Lecturer in History of Law and Roman Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 See for details M. Guþan, Romanian Tradition in Foreign Law Import: Between Necessity and Weakness, in Imperialism and Chauvinism în the Law. Reports presented to a colloquium on the occasion of the 20th anniversary of the Swiss Institute of Comparative Law, Schulthess, Genève – Zurich – Bâle, 2004, p.66-67.

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ASPECTS OF THE ACTIVITY OF THE VICTIMS’ PROTECTION AND CRIMINALS’ SOCIAL REINTEGRATION SERVICE

Vasile Vidrighin, PhD candidate*

Through the O.G. nr.92 from the 29-th of August 20001 issued by the Government of Romania, it was organized the functioning of the services of social reintegration of the offenders and the surveillance of the execution of the sanctions non-deprivative of liberty.
The name of this service was, initially, that of service of social reintegration and surveillance, being settled under the authority of the Ministry of Justice and conceived as a specialized organism, without juridical personality, being meant to socially reintegrate the persons who committed offences, maintained free, and the surveillance of the execution of the obligations established by the judgment instances for them as well as the assistance and counselling of the sentenced persons, at their request. An extremely important role in the activity of this service is the attraction and the implication of the community in the social reintegration progress. The activity of these services was centred on the activity of drawing evaluation reports for the offenders, at the solicitation of the penal pursuit organs or of the instances of judgment and surveillance of the way the person sentenced to jail with suspension of the execution of the sentence on surveillance and the minor on which it was applied the educative measure of the liberty under surveillance, respect the measures or the obligations imposed by the instance based on the stipulations of art.86³ and art.103 Penal Code.
Afterwards, the activity of these services extended, comprising new areas of activity, as the assistance and the counselling of the persons that are to be freed from jails and centres of re-education, before and after the moment of their liberation2. The social reintegration and surveillance services develop their activity without any discrimination based on nationality, citizenship, race, ethnic origin, language,

* Assist. Prof. in Forensic Sciences, at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 The normative act was published in M. Of. nr.423 from the 1-st of September 2000 and started to work in 60 days time since publishing.
2 G. Oancea, Activitatea serviciilor de reintegrare socialã. Asistenþa, protecþia ºi reintegrarea socialã a victimelor [The Activity of the Public Services of Social Reinstatement. The Assistence, the Protection and the Social Reinstatement of the Victims], material presented at the specialized Seminary concerning the International Judicial Co-operation in the field of fight against human traffic, Miercurea-Ciuc, March, 2005.

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FORENSIC IDENTIFICATION THROUGH D.N.A GENOTYPING METHOD (I)

Remus JUGASTRU*

“As the genetic identification has become an indisputable means of evidence, we may rightfully wonder, beside the laws and the principles which presently regularize the penal evidence, if this new means of evidence does not require a specific judicial categorization. The progress of science may arouse quite many disquieting issues in the penal procedure. The new technologies […] revive, each time in a different manner, the debate on the conciliation of various interests in the penal procedure, imposing the search for a new point of equilibrium”1. Briefly, these words summarize the essence of the challenges brought about by the discovery of genetic fingerprinting in the field of forensic medicine and, equally, in the field of judicial sciences. If the world of molecular genetics has been irrevocably changed by the discovery of the double helix structure of the deoxyribonucleic acid (1953), the relevance of the uniqueness of genetic inheritance of each individual represents only the starting point of a process that is far from over – the acknowledgement of the D.N.A. genotyping as a means of forensic evidence. As it has rightfully been asserted, the genetic evidence fascinates, at an initial stage. “In fact, it brings forth a pseudo-certainty which has never been attained before and for which there is a tendency to turn it into a certainty: it allows the elimination of false suspects and forces the real culprits to surrender […]. At a second stage, the same evidence generates uneasiness. Is the scientific evidence really infallible? Is the scientific truth also a legal truth? What becomes the intimate conviction of the judge concerning this scientific certainty that he cannot control? Can the defence rights and the human rights be heard over such seductive and overwhelming evidence which induces a passive and complete confidence?”2 Such questions, aroused by a scientific discovery turned into a viable specialised tool, are real and justified. We will firstly examine the characteristic features, the role of establishing the genetic profile in the context of criminal identification, several methodological elements concerning the appropriate use of the D.N.A fragments through expertise, the utility of D.N.A typing and the errors that may alter the conclusions of the biocriminalistic expertises (I). We will then observe the way in which this scientific acquisition reflects itself in the legislative and jurisprudential scenery,

* Forensic prosecutor, Prosecutor’s office within the Tribunal of Sibiu.
1 I. Hurdubaie, O.-R. Grigorescu, Testele de identificare geneticã în materie penalã [Tests of Genetic Identification in Penal Law], in Criminalistica, no.4/2003, p.29.
2 Ibidem.

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THE SANCTION RENOUNCEMENT AND THE DELAY OF THE SANCTION APPLICATION – NEW INSTITUTIONS OF THE ROMANIAN CRIMINAL CODE

Andreea Cecilia VLAD*
Mãdãlina MIHÃILÃ

Starting with the Criminal Code of 1864 and until the current Criminal Code, one observes that the Romanian legislator has strictly respected a tradition: to situate in the foreground the criminal protection of basic attributes of the State (title 1 of the special part of the Criminal Code). These values were considered as very important and that is why they occupied a privileged place.
On the basis of the European Union regulations and under the influence of other legislations of the European states, the new Romanian Criminal Code is marked by the rectification of the legislator’s option on the aspect of the social values protection. A new structure is approached and the criminal law was modified in favor of the person, of its rights and of its interests in comparison with the attributes of the State. Therefore the Criminal Code focuses on the person, on its protection as an essential value of the society, and is based on criteria like:
- the prevention and the fight against new forms of socially dangerous behaviour;
- the protection of the person’s rights and interests;
- the harmonization of our legislation with the requirements of the modern Criminal legislations, of the European Convention on Human Rights and Liberties and the ones of the case-law of the European Court of Human Rights.
The requirements in the latter years to propose a series of unitary Criminal solutions at the European level is due to the increase of law breaking cases and also to the quick transformation of the national crime in international crime (one talks about an European space of the crime – the Euro crime)1. Unfortunately it appears that the unification process of the penal regulations is slower than the process of intensification of the law transgression phenomenon2. The increase of the crime rate imposes an effective and very harsh Criminal legislation in view of the decrease or even disappearance of this blight of humanity. But at the same time the legislator must pay attention not to violate the human rights and basic liberties. It is hard to find a balance between these two tendencies: between the necessary

* Students, last year of study, at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 G. Antoniu, Partea generalã a Codului penal într-o viziune europeanã [The General Part of the Criminal Code in a European Perspective], în R.D. pen., no.1/2004, p.30.
2 Idem, p.31.

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ASPECTS OF THE RESTRICTION OF GARNISHMENT USE IN TRACKING MONEY AMOUNTS IN ROMANIAN AND FOREIGN LAW

Ion REBECA, Phd Candidate*

For social reasons, from the rule according to which the debtor answers to his debts with all his present and future belongings, the right of general pledging has some restrictions in the case of tracking the debtor‘s wage or any other periodical incomes that he might have.
The purpose of the periodical amounts paid to the debtor is that of ensuring his existence and of the persons that he maintains, therefore, not to distort the destination of the payments that can only be tracked within a certain range, and some debts or cases mainly provided by the law cannot be tracked at all.
The wages and other periodical incomes have a special treatment in what concerns tracking also in other legal systems. In the French law, the restriction of tracking the wage through garnishment was readjusted by law in January 1895 for the first time, the protection of these incomes being left at the level of jurisprudence until this date. In 1860, through an extensive interpretation of article 581 of the Civil procedure code, the Court of Cassation acknowledges the courts‘ right to partly garnish the wages or to spare them of this tracking, considering them input debts. The legislative intervention in this matter proved to be necessary, since the jurisprudence did not effectively protect these incomes, remaining of the judge’s beliefs, the argumentation being based only on the humanitarian reasons meaning that a minimum vital amount was given to the debtor and his family1.
Also in Canadian law the tracking of the wage is submitted to a special treatment2 meaning that instead of tracking the wage, the judge following the creditor‘s request notifies the debtor to appear in court and to make a statement about his incomes, to deposit the garnished part of his remuneration.
The statement that is given under oath by the debtor must refer to his employer’s address, at the wage and the date that it was released, at the expenses which he makes in order to support his family, at the list of his creditors. The statement is left at the court clerk’s office together with the garnished part of his incomes, the creditor being able to dispute it within 30 days, otherwise he can only track the amount indicated in the debtor’s statement.

* Judge in the Pitesti Court of Law.
1 J. Vincent, J. Prevault, Voies d’exécution, Dalloz, Paris, p.50-52; D. Parisot, A. Janffret, Procedure civile d’exécution, Paris, 1967, p.217; J. C. Mathey, La saisie de salaire et revenu, Imprimerie Chabloz, 1989, p.44-47.
2 Art.651/Code of Civil procedure of Quebec.

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II. INTERNET LAW

THE RIGHTS OF PERSONALITY AND THE INTERNET:
TRADITION AND PROSPECTS IN THE ROMANIAN LEGAL SYSTEM (I)

Cãlina JUGASTRU, PhD*

The approach of the rights of personality finds itself under the sign of controversy and uncertainty, particularly in what concerns the identification, defining and its sphere of action. The intervention of the Romanian legislator has been random, lacunary and sometimes without the effect of harmonization, in the context of the necessity of an integrated system concerning the rights of personality.
What we, regularly, bring together under the name of “rights of personality” are, as a matter of fact, extra patrimonial subjective rights “which refer, mainly, to the protection of physical and moral characteristics of the human being, to its individualization and personality1. They might also be called, “those inherent rights of a person, rights that belong to each individual due to the very fact of being human. These rights named primordial rights by some authors or fundamental rights by others, are prerogatives that can be qualified as subjective rights […]”2. Despite of a certain appearance, which derives from the generically used terminology meant to define the control of the holder over his own individuality, the judicial system of the rights of personality is far from being homogeneous. The experience of different judicial systems is extremely diverse. While the American system promoted since early 1890 the concept of privacy (in connection to which an interesting doctrine has developed), and the French right has regulated since 1970 the problem of private life and, especially, of privacy – considered to be the core of the rights of personality – in our country the situation is totally different.

* Associate Professor in Civil Law (Obligations) and Private International Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 P. M. Cosmovici, Drept civil. Introducere în dreptul civil [Civil Law. Introduction to Civil Law], Editura All Beck, Bucureºti, 1996, p.69.
2 O. Ungureanu, Persoana fizicã [The Natural Person], in O. Ungureanu, C. Jugastru, Drept civil. Persoanele [Civil Law. The Persons], Editura Rosetti, Bucureºti, 2003, p.43. In what concerns the judicial characters of the rights of personality, see I. Tricot-Chamard, Contribution à l’étude des droits de la personnalité. L’influence de la télévision sur la conception juridique de la personnalité, Presses Universitaires d’Aix-Marseille, 2004, p.234-240; J. E. Bustos Pueche, Manual sobre bienes y derechos de la personalidad, Dykinson, Madrid, 1997, p.47-50.

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III. NEW LEGISLATION THE TAX EVASION IN THE LIGHT OF THE LAW NO.241/2005

Cristina ONEÞ, PhD*

Some of the most serious breaches of the legal rule, with respect to the social danger, is the accomplishment of acts and facts of tax evasion with specific contents. At present the legislator doesn’t understand anymore to define the concept of tax evasion, but we consider interesting to present the old definition of the recently annulled normative act. Thus, the tax evasion was defined as “the abstraction by any means, totally or partially, from the taxation and from the payment of duties, taxes and other sums owed to the state budget, to the budget of social state insurance and to the special extra-budgetary funds, by physical or juridical persons, Romanians or foreigners”1.
This definition of the concept of tax evasion is founded on the thinking of the great Romanian lawyers from the beginning of the century and we consider that it allows a better understanding of the institution and of its evolution. So, if during the inter-war period, this concept was considered to be a modern work instrument for the specialists of the fiscal sphere, during the communist period, following the Second World War, the Romanian legislation hasn’t made anymore reference to the tax evasion, limiting itself to the regulation of the sanction, in the case of the commitment of offences, administrative infringement or offences comprised in the general sphere of the juridical responsibility and of the state constraint in the domain of the budgetary incomes.
Examining the problem of the tax evasion in Romania, it may be seen that, since the great reform of the direct duties from the year 1921 and especially of the year 1929, the fiscal legislator was especially preoccupied to organize a taxation system and to find the most efficient means to prevent and repress the tax evasion. In 1923, annulling the minimal taxation and mitigating the severe sanctions stipulated by the Law from 1921 against the practice of evasion and the anti-fiscal spirit manifested by certain categories of taxpayers, emphasized by the lack of preparation of the organs supposed to apply the law, aspects that have been partially ignored by the legislator from 1921, but mostly by the one from 1923.

* Lecturer in Financial Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.
1 Law no.87/1994 for the tax evasion fight against, art.1, re-published in 2003 and annulled in 2005, through the Law no.241/2005 for the tax evasion prevention and fight against.

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IV. SUMMARIES OF CASES CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Selected and summarised by Bianca SELEJAN-GUÞAN, Ph.D*

1. Right to life. Violation. Racial discrimination. Violation of Article 14
Natchova and others v. Bulgaria, request no.43577/98, solved by the judgment of the Grand Chamber of the European Court of July 6th, 2005.
The facts
The applicants, Anelia Natchova and her mother, Aksinia Hristova, as well as Todorka Rangelova and Rangel Rangelov, are Bulgarian nationals of Roma origin. This case concerns the killing on 19 July 1996 of the applicants’ relatives, Kuncho Angelov (father of Ms. Nachova) and Kiril Petkov (son of Ms. Rangelova and Mr. Rangelov), both aged 21, by a military policeman who was trying to arrest them. Mr. Angelov and Mr. Petkov were both conscripts in a division of the army dealing with the construction of apartment blocks and other civilian projects. Early in 1996 they had been arrested for repeated absences without leave. On 22 May 1996 Mr. Angelov was sentenced to nine months’ imprisonment and Mr. Petkov to five months’ imprisonment. Both had previous convictions for theft. On 15 July 1996 they escaped from a construction site where they were working and went to the home of Mr. Angelov’s grandmother in Lesura. Neither was armed. On 19 July 1996 the commanding officer in the Vratsa Military-Police Unit, Colonel D., sent four military police officers, under the command of Major G., to arrest the two men. At least two of the officers knew one or both of the men. Colonel D. told the officers that “in accordance with the rules” they should carry their handguns and automatic rifles and wear bullet-proof vests. He informed them that Mr. Angelov and Mr. Petkov were “criminally active” – an expression used to describe people with previous convictions or those suspected of committing offences – and that they had escaped from detention. The officers were instructed to use all necessary means to arrest them.

* Associate Professor in Constitutional Law and Human Rights Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.

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JURISPRUDENCE OF THE SUPERIOR COURT OF CASSATION AND JUSTICE IN CIVIL CASES FOR 2005

Selection and summary: Lecturer Viorica DUMITRACHE, PhD*
Lecturer Codruþa HAGEANU, PhD

1. Property abusively expropriated by the State. Inadmissibility of revocation by issuer of the disposition to return the property to its original owner S.C.C.J, Civil and Intellectual Property Section, decision no.103/13.01.2005 The plaintiff, M.H., brought an action against the Mayor’s Office of Recas commune in Timis County, requesting annulment of disposition no.252/2002 issued by the defendant, which revoked disposition no.105/2001, issued by the same defendant. The plaintiff’s claim was rejected as ungrounded by civil judgment no.359/2002 pronounced by the Tribunal of Timis, on the grounds that the revocation of the defendant’s initial decision was justified by the fact that the building in litigation subsequently became public property by Government Decision no.699 bis/2002. The plaintiff laid an appeal with the Court of Appeal of Timisoara and the decision of the Tribunal was changed by civil decision no.12/2003. The challenge was partially allowed and the Court of Appeal decided that the disposition of Recas Mayor’s Office be annulled on the grounds that the defendant had failed to prove that the setting up of a museum in the building was legal (in the Land Registry the building was identified as a “dwelling house”). On the other hand, it was found that the initial disposition issued by the defendant could not be revoked, as it was an administrative act part of the civil circuit. The court rejected the claim regarding the partial annulment of disposition no.105/2001 on the grounds that it was a new claim, one laid directly in the appeal, and it could not be allowed.
Recas Mayor’s Office laid an appeal with the Superior Court of Cassation and Justice, showing that the building in litigation had become public property by Government Decision no.699 bis/2002 and, according to the provisions of article 16, paragraph 1 of Law no.10/2001, former owners can benefit only from reparative measures of equal worth.
The appeal was found ungrounded.
It was acknowledged both that the plaintiff-contestant produced evidence as to ownership of the building in litigation and that the notification was according to the provisions of Law no.10/2001. The legal person notified, Recas Mayor’s Office in

* Lecturer in Private Law (Contracts) at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law and Lecturer in Family Law at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.

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V. RESTITUTITO AN INTER –WAR PERIOD’S EDITORIAL EVENT

Constantin BUTIUC, PhD*

The work of professor Enrico Ferri entitled “Criminal Law Principles” was published in January 1928 in Italy.
During the same year in Romania appeared the translation of the first volume followed by the second volume the next year. The second edition was published in 1940, also in Bucharest.
The initiator and translator of the work is Petre Ionescu-Muscel, lawyer, doctor at law and diplomat of the Criminology Institute at the University of Rome. Enrico Ferri was born in 1856 in San Benetto Po (Mantova) in a modest family (his father was a tobacconist). He studied law in Bologna making his doctor’s degree in 1877 with the thesis entitled “The Theory of Imputability and Negation of the Freedom of Will”, already making his positivistic conceptions known that would bring him fame.
He was in turn professor at the University of Bologna, Siena, Pisa (where he followed the well known professor Francesco Carra) and finally at the University of Rome.
Together with Cesare Lombroso and Rafaele Garofalo he is considered the founder of the Positivistic School, whose conceptions have constituted a downright revolutionary alternative to the conceptions of the Classical School. He had a remarkable editorial and publishing activity being chief editor at the socialist newspaper “Avanti” and founder of the juridical magazine “La Scuola Positiva”.
In spite of being Lombroso‘s disciple he surpassed the masters reductionistic conception, his vision over the phenomenon of criminality being much more complex, which results very well from the communication presented at the IVth International Congress of Criminal Anthropology from Geneva in 1896. On this occasion he affirmed that in the category of criminological factors along with anthropological factors belong physical factors as well as social factors, ascertaining the priority of the last ones. This opinion made him elaborate the “Law of Saturation”, according to witch any abnormal social phenomenon (war, revolution, famine etc.) triggers a sudden growth of criminality.
It is beyond doubt, that these kinds of conceptions determined the contemporaneity and posterity to consider him the founder of sociological criminality.

* Associate Professor in Criminal Law (General Part) at the „Lucian Blaga” University of Sibiu, Romania, „Simion Bãrnuþiu” Faculty of Law.

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VI. BOOK REVIEWS

Patrice JOURDAIN, Les principes de la responsabilité civile [The Principles of Civil Liability], 6th edition, Dalloz, Paris, 2003, 161 p.

responsabilité civile [The Principles of Civil Liability] by prof. Patrice Jourdain1 is intended to be a meticulous study of civil liability. The vastness of the field chosen by the author called for a rigorous structure of the presentation, the work being organized in three parts (1st Part – An Overview of Civil Liability; 2nd Part – The Sources of Laibility; 3rd Part – Compensation of Damage) divided in chapters and sections. The work lacks footnotes, each chapter ends with a list of bibliographic indications (research studies and general works, without any reference to the page on which a certain opinion or idea can be found) and in the final section the conclusions of the author, an alphabetic index (rather concise) and a table of subjects are added. Although civil liability has clearly a jurisprudential origin, it has been submitted to an interesting evolution over the time, being legally accepted by French Civil Law. Even though initially the regulation mentioned grounded civil liability on the moral principle according to which “every man is responsible for his actions”, the evolution of society and implicitly of law has necessarily imposed the wording and legal approval of new, more strict rules that generated a civil liability evermore objective. By presenting the historical evolution of civil liability (1st Part, chapter I, p.7-9), the author distinguishes two important periods, marks the time limits of the two– civil liability until the 18th century and civil liability between the 19th century and 20th century – and extraordinarily points out the specific features of each. Thus in a first phase, during the first period, one could not talk about a distinct civil liability, the latter being entirely penal and essentially religious, sanctions consisting in sacrifices and penitence. A new phase related to liability is the one regarding unlimited private and family vengeance, mitigated later on by lex talionis (considered to be the first attenuation of formerly existing unlimited liability) and no less important is the phase of introducing fine punishment, a phase in which it is considered that the progress of regulations regarding liability has made its most important step forward. As for example, the Germanic law of Salic Franks stipulated for the committed action a certain fine, payable in money, equally divided between victim and king.
Consequently one can state that civil liability resulted from the penal one that comprised it for a long time, even though the Roman juridical genius has foreseen

1 Professor at the University of Panthéon-Sorbonne (Paris I).

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