INSURANCE LAW

In its initial forms, insurances appeared within the first organized social groups and were designed to help its members in case of need. Evidences of their existence date back to Antiquity. In ancient Egypt, (around 4500 BC) associations dedicated to the protection of stone carvers are documented. In Babylon, transport was organized in caravans and the disappearances costs were collectively supported by merchants. Ship owners agreed that if one’s ship would be lost he would receive a new one instead, providing the loss was not the owner’s responsibility. Also, in 5th century BC, Pericles founded associations designed to help its members and their families in case of fire, disease or death.
First modern insurances appeared in 19th century in France and England, where first insurance companies for railway and roadways accidents were established.
In recent times, Romania’s economic development made us all realize the vital role of insurances in daily life. The insurance consists in creating a fund to cover damages and other unexpected financial requirements by individuals or legal entities that are threatened by risks in their activity. This is the signification emphasized by the Law 32/2000 regarding the notion of insurance: “process through which an insurer establishes, using the mutuality principle, an insurance fund, with the contribution of a number of insured individuals, exposed to certain risks and compensates those who suffered damages (moral or physical) from the above mentioned fund (the first collected installments and other revenues resulted from performed activities). From a legally point of view, insurance is a random contract in which one party – the insured – commits to pay the other party – the insurer – a sum of money in order that if the event insured takes place, the latter pays the insured the compensation established within the contract.
In some cases, the insurance is a mandatory contract, concluded under the law. The Mandatory Auto Liability Insurance – R.C.A. – covers the civil liability/tort law of the owner or user of the vehicle for damages suffered by a third party in case of a road accident via that vehicle. If one is involved in a road accident made by other person driving a vehicle (or even by the driver of the he/she were in), he/she is entitled to ask compensations (physical and/or moral damages) DIRECTLY to the R.C.A. insurer – the R.C.A. policy issuer – for the suffered damages, namely:
- in case of physical damages: both the injured individual and his/her family can ask the R.C.A. insures compensations for the physical damages (physical and/or moral damages);
- in case of death: the family of the deceased can ask the R.C.A. insurer compensations for the death of their relative in a road accident (physical and/or moral damages);
- in case of vehicle damaging: in addition to compensations (physical and/or moral damages) due to the injured person and/or his/her family, the R.C.A. insurer can be compelled (if it is the case) also to pay the equivalent sum of the damaged vehicle (in which the victim of the accident was). In the insurance field, the “Poroșnicu Gianina Vera” law firm collaborates with the Association of Road Accidents Victims in Romania (AVAC Romania) and provides its clients the possibility of obtaining compensations (physical and/or moral damages), as a result of physical and mental sufferings caused by road accidents.
“Poroșnicu Gianina Vera” law firm provides legal assistance and legal representation in the insurance field in obtaining compensations (physical and/or moral damages) in front of the prosecution, the court of justice, the insurance firms as well as in front of the Protection Fund for Street Victims (F.P.V.S.) and Green Book Office within the Vehicle Insurers Office in Romania (B.A.A.R.). “Poroșnicu Gianina Vera” law firm provides legal assistance and legal representation to Romanian citizens that were victims of road accidents in Romania or abroad. The framework law for insurance field is Law no. 136/1995 regarding insurances and reinsurances from Romania.

CRIMINAL LAW

Before the criminal prosecution:
- legal assistance provided to the accused/defendant when any procedure is made by the prosecution – designing requirements and fiing statements in compliance with stipulations made by article 172 from the Code of criminal procedure; examination of evidentiary material once the prosecution is closed and designing the defense by underlining new means of defense; - registration of new requests as the prosecution material is being presented; - registration of complaints against prosecution measures or actions that damages the legal interests of the accused/defendant according to provisions made by art. 278 and art. 278 index 1 Code of criminal procedure.

Taking preventive measures:
- providing legal assistance to detainees or arrested individuals; - devising and submitting petitions for replacing or dismissing preventive measures according to provisions made by art.139 Code of criminal procedure; - submitting and endorsing complaints against public prosecution ordinances regarding possession action, according to provisions made by art.140 par.1 Code of criminal procedure.; - submitting and endorsing complaints against the public prosecutor’s ordinance that prevented the accused/defendant to leave the locality or country, according to provisions made by art.140 index 2 Code of criminal procedure; - promoting, motivating and supporting appeals against the closure that decided the detention before trial of the defendant, as well as extending and maintaining this action

Before the court of justice:
- legal assistance and representation before the court of justice; - devising complaints, preliminary complaints, civil formation in the criminal case petition; - framing, submitting and supporting requests for temporary release under judicial control or on bail; - promoting, motivating and supporting relocation requests before the High Court of Cassation and Justice of Romania; - introducing and supporting an exception about an infringement of the constitution; - drawing up written conclusions for difficult cases or at the request of the court.

CIVIL LAW

When the new Civil code was adopted and came into effect, the judicial world was taken by surprise and the renowned civil law specialists were impressed by the remarkable extent of the new regulations and by the amount of information to be assimilated on the go; as it is, many new institutions from the Civil Code are just resumptions of the old institutions, reorganized by the authors, in order to attune them with the doctrine and jurisprudence developed in the last 150 years. As the new Civil Code came into effect,
efforts were made to present the terminology in a revised judicial speech. To a lesser extent, the Code includes new institutions, not entirely original but either inspired from well known law systems (from France, Switzerland, Spain, Italy and especially from the Civil Code of Quebec) or borrowed from community regulations and other international judicial documents or represents a codification of national or international jurisprudence. The civil law is a branch of law that belongs to the national unitary system regulating the patrimonial relation and personal non-patrimonial, expressed by individuals or legal entities with the same equal legal status.
The function of civil law is to embody the “common law” and the correspondent rule from the civil law is applied if other law branch lacks its own criteria to regulate a certain aspect of the judicial relation; therefore, civil law “borrows” its regulations to other law branches when they lack their own denominations for a case or aspect and vice versa, other law branches “borrow” regulations from the civil law. The services provided by the law firm are equally diverse, such as granting consultations and devising a wide range of contracts and petitions, legal assistance in negotiating the client’s interests in different judicial procedures and, of course, representation before court, state authorities and business partners. Civil law specialists within the law firm provide legal assistance and representation in real estate claims, in actions related to ownership and its defense, in judicial enforcement, assistance and representation related to associations, foundations and NGO’s registration; we also draft a wide range of documents, such as: petitions for trial, notifications, citations, transactions, etc.

INTERNATIONAL LAW

Discussions on fraudulent misrepresentations in the field of public international law

This article underlines the comparative analysis of fraudulent misrepresentations and examines the regulating pattern used against it in the public international law and national law.

According to “Vienna Convention of treaties between states” (1969), the fraudulent misrepresentations are:
- violations of the provisions from the national law regarding the competence to conclude treaties;
- error;
- criminal intent;
- corruption of a state representative;
- coercion exercised on a state representative;
- coercion exercised on a state.

Fraudulent misrepresentations are sanctioned within the public international law and national law by nullity in law, either absolute (for coercion exercised on a state representative and on a state), or relative (for violations of national law regarding the competence to conclude treaties, error, criminal intent, corruption of a state representative). In certain cases, the national law provisions are almost identical with Vienna convention provision, for example (criminal intent), but sometimes – violation of national law regarding the competence to conclude treaties – Vienna convention provisions are in obvious contradiction with the specific civil theory, as the state can invoke the inobservance. Concurrently, national law establishes the rule according to which nobody can invoke its own turpitude (guilt).

As a conclusion we can state that the regulation pattern of nullity, taken from the national civil law and transposed in the Vienna Convention does not satisfy the demands and rigors of defining the nullity.

Roxana Lupu- Nicolăiţă
Maria Paula Pantilimon- Tataru

BIBLIOGRAPHY
• Raluca Miga Beşteliu- “Public International Law. Introduction in the Public International Law”- All Printing House, Bucharest, 1998
• Valentin Constantin- “Public International Law”- Universităţii de Vest Publishing House, Timişoara, , 2004
• Ion Diaconu- “Treaty of Public International Law”- Lumina Lex Publishing House, Bucharest, 2002
• Gheorghe Beleiu- “Romanian Civil Law. Subjects of Civil Law”, Şansa Printing Press, Bucureşti, 1995, p. 178

LABOR LAW

Labor law represents a branch of the law system comprising the entirety of juridical principles that regulate individual and collective labor relations, the union and employer organizations attributions, labor conflicts and the control of labor legislation implementation. Labor law is a body of juridical norms with a distinct object to regulate – social labor relations between those who use the work force – employers – and those that provide the work – workers / employees. The main normative acts that regulate these juridical relations in Romania are the Labor Code, Social Dialogue Law (no. 62/2011), HG nr. 500/2011 regarding the general register of employees and also the multitude of normative acts regulating the protection of Romanian citizens working abroad, the situation of the temporary employee, sending workers within trans-national providing services, admission to employment and sending foreigners in Romania, work placement abroad, day laborers situations, etc.

The juridical principles that regulate health and work safety can be included in the same category, as stated by Law no. 319/2006R, HG no. 1425/2006 modified and completed, as well as around 20 Government decisions that transposed within the national legislation the content of Directive 89/391/CEE or those regarding the maternity protection at the work place and regulations concerning workers protection in case of extreme temperatures, etc.

The social security law contains juridical norms that regulate social security relations and also social assistance. Through this legal institution, the individual is protected by social risks threatening his/her existence. Protection often starts before birth (pre-birth care) and continues after death (survivorship pensions). The most important regulations activate within the pension system (see Law no. 263/2010), unemployment insurance system (Law no. 76/2002) or those from the health insurance system (OUG no. 158/2005).

COMMERCIAL LAW

Preliminary proceedings:

- starting conciliation procedures;
- writing subpoenas and notifications for notices of default.
Before the court:
- devising and submitting actions derived from faulty execution / non-execution of contracts;
- legal assistance and representation before different types of judicial authorities.

Before the Trade Register Office of the Law Court Iași:

- unfolding the legal formalities for establishing and alteration of firm’s articles of incorporation;
- writing the initial article of incorporation or in updated form of the legal entities bound to registration in Trade Register;
- drafting the additional act or according to each case, the decision of general assembly of members or associates or shareholders; drafting the board of directors / sole associate decision on alterations of the article of incorporation regarding headquarter, firm name or its logo, lifespan, main field of activity and main activity, administrators and/or censors, acceptance or rejection of members or associates, establishing or dissolution of secondary premises, legal form, object of activity and its codification according to the order issued by president INS no. 601/2002 regarding CAEN update, increase or decrease of registered capital, division or merger, dissolution or liquidation;
- drafting the statute for the limited liability company with sole associate;
- completing the registration form and standard forms specific for Trade Register activity;
- providing exact date for the documents drafted by the law firm.

Before the bankruptcy judge – bankruptcy procedure

- drafting introductory requests in order to begin the judicial reorganization procedure and bankruptcy; - action for annulment applied to debtor’s fraudulent commercial transactions;
- legal assistance in drafting the judicial reorganization plan;
- representation within the debtors committee;
- drafting the legal remedies against the measures undertaken by the liquidator or bankruptcy judge;
- devising and submitting appeals;

Participation at commercial contracts negotiations and their elaboration

- analyzing different contract projects and assistance in implementing them;
- assistance in negotiating, closing and unfolding of commercial contracts: objectives, conditions, duration, renewal, annulment, transfer, arbitration

LAND LAW / PROPERTY LAW

The land law standardizes the juridical principles regarding land, regardless of their nature and their formal law sources that includes them. Social relations concerning land exists both between private parties (individuals and legal entities within private law) and between legal entities of public law, or between these and private parties. Land law represents a distinct branch in the national juridical system that contains an entirety of juridical principles established or sanctioned by the state in order to regulate social relations in using land, the terms and means of production in order to use it in a rational manner and also enriching the soil, as well as defending the rights and interests of those involved in these relations. Land law as a distinct branch of law has as main object of regulation the specific principles and methods contained in the sources of the specific branches. The object of land law is in principle, the social relations system connected to the use of land, regardless of the manner of land exploitation, ownership form or the economic beneficiary.
It also regulates land relations connected to measures adopted by the state in order to realize its own land policies, namely to organize and record land activities. It also includes relations connected to implementing measures of rational and thorough usage of all land areas. Therefore, the juridical principles that create the content of land law can be distinguished as follows:
- juridical principles that regulate the forms of ownership of the land and their juridical conditions;
- juridical principles that regulate the land exploitation system in Romania;
- juridical principles that regulate the record system and real estate advertising;
- juridical principles that regulate the usage, protection and improvement of land areas;
Regarding the applicable laws for law land, among most important normative legal acts are:
- Law no. 18/1991 regarding the land fund, with its subsequent alterations and additions;
- Law no. 215/2001 – local public administration law, with its subsequent alterations;
- Law no. 7/1996 – cadaster and real estate advertising law, with its subsequent alterations;
- Law no. 138/2004 – land improvement law, with its subsequent alterations;
- Law no. 107/1996 – water resources law, with its subsequent alterations;
- Law no. 213/1998 regarding public property assets, renamed through Law no. 71/2011, in order to put into effect the Law no. 287/2009 regarding the Civil Code, with its subsequent alterations;
- Law no. 10/2001 regarding the legal status of some estate abusively confiscated between 6th of March 1945 – 22nd of December 1989, with its subsequent alterations, republished in Off. M. No.798/2sep. 2005;
- Law no. 46/2008 – Forest Code, with its subsequent alterations and additions;

ARBITRATION AND MEDIATION

Mediation is a modern, simple, elegant, fast, and efficient way of solving conflicts, a low cost alternative to court trials.

Types of conflicts that can be solved through mediation include:
- consumer rights;
- family conflicts such as: continuing marriage; partition of goods owned in common; exercise of parental rights; children's domicile; parental contribution; or any other conflict arising between husbands involving their legally designated rights;
- civil law conflicts involving possession, property limits, conflicts between neighbors, property claims, succession rights, rent, property ownership, real estate transactions, inheritance, partitions, intellectual property, copyright;
- professional responsibility (for example, medical error);
- work related conflicts (arising from signing, application, and cessation of individual work contracts);
- commercial conflicts: payments, claims, financially related disputes; disputes involving signing, applying, interpreting, and cancelling commercial contracts; provisions and compensations stipulated in insurance contracts;
- criminal law conflicts (criminal side - it only applies to cases where criminal responsibility is negated by withdrawal of complaint or reconciliation; civil side - for crimes involving civil claims);
- transnational civil or commercial conflicts;
- conflicts in other fields (sports, education, etc.).

Benefits of mediation:
1. low cost
2. fast solution
3. simple and flexible procedures
4. no emotional cost
5. win-win solution
6. tax reductions and exemptions
7. confidentiality, neutrality, impartiality
8. maintaining good relations between the involved parties
9. preventing future conflicts
10. solution decided by the parties according to their needs.

When can one use mediation?
1. before suing
2. after suing (in all stages of appeal, including forced execution)
3. without suing.

Mediation covers a wide range of conflicts and as such it should not be regarded only as an alternative to court trials.

You can count on my professionalism, neutrality, confidentiality, and impartiality in the process of conflict solving.

MOCANU NICULINA - MEDIATION OFFICE
For details, info, appointments, or mediation sessions please call +40746188824 or send me an email at niculina07@gmail.com

MALPRACTICE

Malpractice represents a professional malfeasance performed during medical intervention that inflicts damages on the patient.
There is a reform law regarding the Romanian health system in force, 95/2006, that requires re-evaluation.
The well known doctor Tudor Ciuhodaru from Iași, MD in emergency medicine, with a PhD. in medical science, currently a deputy in Romanian Parliament, submitted a proposal in 2014 to modify the law and shorten the indemnity procedures in favor of malpractice victims (months instead of years of legal approach); the proposal was adopted by the Chamber of Deputies.
In a program at the local TV station TLM, together with Dr. Ciuhodaru, we are debating the complex problem of malpractice in Romania.
Although the law instruments are flawed in this domain, there are encouraging judicial precedents of calling to account the public or private medical system or medical personnel: medic, assistant, stretcher-bearers, etc. Romania lost at CEDO in cases improperly unresolved by our judicial system. The malpractice law is a law system for the future. In a short time, we will follow the example of other civilized countries (the legislation demands alterations and the practice implements them). The malpractice law belongs also to the present: in lawsuits or criminal trials, patients win more often and defend their rights and their status of holders of a “high price” life. The current malpractice insurances domain needs to be legally corrected as soon as possible; even in the current stage, these insurances are prioritized during this type of trials: the patient/victim must be indemnified with large sums (the insurance policies in the medical domain should be increased).
Life and health hold value not only in their quantitative aspect, but also in their qualitative aspect! Consistent compensations for injurious medical interventions mean normality and equity, not “enrichment without just cause”!
In conferences, in mass-media, in the Romanian Parliament, the fact that the medical services are not always exceptional from a qualitative point of view and the medical personnel is not always impeccable is increasingly recognized.
Perhaps it is hard anywhere and anytime to achieve an ideal medical knowledge, but this situation should not justify the medical malpractices that cause, most often, new moral and physical damages. Regulating the contractual “field”, and the judicial nature between the medical personnel and patient and also compensating the damage through a professional liability insurance are acute challenges for the Romanian contemporary judicial community.

Domenii de expertiza

IN AN ORDINARY TRIAL, THE LAWYER LEADS HIS CLIENT ON A WIRE UNTIL A VERDICT IS REACHED, BUT WHEN IT IS A SPECIAL TRIAL, THE LAWYER TAKES HIS CLIENT ON HIS SHOULDERS AND CARRIES HIM UNTIL THE VERDICT IS REACHED AND EVEN AFTERWARDS.
FRANZ KAFKA – SECOND EDITION, LIMITED EDITION OF THE FAMOUS NOVEL “THE TRIAL”