Matei Adrian-Bogdan, grupa 102

ENGLISH
LAW
vs
RMANIAN
LAW
!a"u#tatea de $rept, %niversitatea din
Bu"ure&ti
Eng#is' #a(
Eng#is' #a( is the legal system of England and Wales, and is the basis of
common law legal systems used in most Commonwealth
1
countries and the
United States except Louisiana (as opposed to ciil law or pluralist systems in use
in other countries!" #t was exported to Commonwealth countries while the $ritish
Empire was established and maintained, and it forms the basis of the
%urisprudence of most of those countries" English law prior to the &merican
'eolution is still part of the law of the United States through reception statutes
(
,
except in Louisiana, and proides the basis for many &merican legal traditions
and policies, though it has no superseding %urisdiction"
English law in its strictest sense applies within the %urisdiction of England
and Wales" Whilst Wales now has a deoled &ssembly
)
, any legislation which
1
*he Commonwealth of +ations, normally referred to as the Commonwealth and formerly
,nown as the $ritish Commonwealth, is an intergoernmental organi-ation of ./
independent member states" &ll members except 0o-ambi1ue and 'wanda were part of
the $ritish Empire, out of which the Commonwealth deeloped"
(
& reception statute is a statutory law adopted as a former $ritish colony becomes
independent, by which the new nation adopts (i"e" receies! pre2independence English
law, to the extent not explicitly re%ected by the legislatie body or constitution of the new
nation" 'eception statutes generally consider the English common law dating prior to
independence, and the precedents originating from it, as the default law, because of the
importance of using an extensie and predictable body of law to goern the conduct of
citi-ens and businesses in a new state" &ll U"S" states, except Louisiana, hae either
implemented reception statutes or adopted the common law by %udicial opinion"
)
*he +ational &ssembly for Wales is a deoled assembly with power to ma,e legislation
in Wales" *he &ssembly comprises 34 members, who are ,nown as &ssembly 0embers, or
&0s" 0embers are elected for four2year terms under an additional members system,
where /4 &0s represent geographical constituencies elected by the plurality system, and
(4 &0s from 5e electoral regions using the d67ondt method of proportional
representation"
that &ssembly enacts is enacted in particular circumscribed policy areas de5ned
by the 8oernment of Wales &ct (443
/
, other legislation of the 9arliament of the
United :ingdom, or by orders in council gien under the authority of the (443
&ct" ;urthermore that legislation is, as with any by2law made by any other body
within England and Wales, interpreted by the undiided %udiciary of England and
Wales"
*he essence of English common law is that it is made by %udges sitting in
courts, applying their common sense and ,nowledge of legal precedent to the
facts before them" & decision of the highest appeal court in England and Wales,
the Supreme Court of the United :ingdom, is binding on eery other court in the
hierarchy, and they will follow its directions" ;or example, the crime of murder
does not exist as a result of an &ct of 9arliament but rather it is a common law
crime" #t is a crime by irtue of the constitutional authority of the courts and their
preious decisions" Common law can be amended or repealed by 9arliament<
murder, by way of example, carries a mandatory life sentence today, but had
preiously allowed the death penalty"
England and Wales are constituent countries of the United :ingdom, which
is a member of the European Union" 7ence, EU law is a part of English law" *he
European Union consists mainly of countries which use ciil law and so the ciil
law system is also in England in this form" *he European Court of =ustice can
direct English and Welsh courts on the meaning of areas of law in which the EU
has passed legislation"
*he oldest written law currently in force is the >istress &ct, part of the
Statute of 0arlborough, 1(3?" *hree sections of 0agna Carta originally signed in
1(1. and a landmar, in the deelopment of English law are extant but arguably
they date to the consolidation of the &ct in 1(@?"
Common law
Since 11A@, English law has been described as a common law rather than a
ciil law system (i"e" there has been no ma%or codi5cation of the law, and %udicial
precedents are binding as opposed to persuasie!" *his may hae been due to
the +orman con1uest of England
.
, which introduced a number of legal concepts
and institutions from +orman law into the English system" #n the early centuries
of English common law, the %ustices and %udges were responsible for adapting the
/
*he 8oernment of Wales &ct (443 is an &ct of the 9arliament of the United :ingdom
that reforms the +ational &ssembly for Wales and allows further powers to be granted
more easily" *he &ct creates a system of goernment with a separate executie drawn
from and accountable to the legislature"
.
+orman Con1uest, the military con1uest of England by William, du,e of +ormandy,
primarily eBected by his decisie ictory at the $attle of 7astings (Cct" 1/, 1433! and
resulting ultimately in profound political, administratie, and social changes in the $ritish
#sles"
Writ system to meet eery day needs, applying a mixture of precedent and
common sense to build up a body of internally consistent law, e"g" the Law
0erchant began in the 9ie29owder Courts (a corruption of the ;rench Dpieds2
poudrEsD or Ddusty feetD, meaning ad hoc mar,etplace courts!" &s 9arliament
deeloped in strength legislation gradually oertoo, %udicial law ma,ing so that,
today, %udges are only able to innoate in certain ery narrowly de5ned areas"
*ime before 11A@ was de5ned in 1(?3 as being time immemorial"
Cne of the ma%or problems in the early centuries was to produce a system
that was certain in its operation and predictable in its outcomes" *oo many %udges
were either partial or incompetent, ac1uiring their positions only by irtue of their
ran, in society" *hus, a standardi-ed procedure slowly emerged, based on a
system termed stare decisis
3
which basically means Dlet the decision standD" *he
doctrine of precedent which re1uires similar cases to be ad%udicated in a li,e
manner falls under the principle of stare decisis" *hus, the ratio decidendi
?
of
each case will bind future cases on the same generic set of facts both
hori-ontally and ertically in the court structure" *he highest appellate court in
the U: is the Supreme Court of the United :ingdom and its decisions are binding
on eery other court in the hierarchy which is obliged to apply its rulings as the
law of the land" *he Court of &ppeal binds the lower courts, and so on"
Cerseas inFuences
*he inFuences are two2way"
*he United :ingdom exported the English legal system to the
Commonwealth countries during the $ritish Empire, and many aspects of
that system hae persisted after the $ritish withdrew or granted
independence to former dominions" English law prior to the Wars of
#ndependence is still an inFuence on United States law, and proides the
basis for many &merican legal traditions and policies" 0any states that
were formerly sub%ect to English law (such as &ustralia! continue to
recogni-e a lin, to English law G sub%ect, of course, to statutory
modi5cation and %udicial reision to match the law to local conditions G
and decisions from the English law reports continue to be cited from time
to time as persuasie authority in present day %udicial opinions" ;or a few
states, the =udicial Committee of the 9riy Council remains the ultimate
court of appeal" 0any %urisdictions which were formerly sub%ect to English
law (such as 7ong :ong! continue to recogni-e the common law of
England as their own G sub%ect, of course, to statutory modi5cation and
3
Stare decisis is a legal principle by which %udges are obliged to respect the precedents
established by prior decisions" *he words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non 1uieta moereH Dto stand by decisions and not
disturb the undisturbed"D #n a legal context, this is understood to mean that courts should
generally abide by precedents and not disturb settled matters"
?
'atio decidendi is a Latin phrase meaning Dthe reasonD or Dthe rationale for the
decision"D *he ratio decidendi is Dthe point in a case which determines the %udgmentD or
Dthe principle which the case establishes"D
%udicial reision G and decisions from the English 'eports continue to be
cited from time to time as persuasie authority in present day %udicial
opinions"
*he U: is a dualist in its relationship with international law, i"e"
international obligations hae to be formally incorporated into English
law before the courts are obliged to apply supranational laws" ;or
example, the European Conention on 7uman 'ights and ;undamental
;reedoms was signed in 1@.4 and the U: allowed indiiduals to directly
petition the European Commission on 7uman 'ights from 1@33" +ow
7uman 'ights &ct 1@@A ma,es it unlawful D""" for a public authority to act
in a way which is incompatible with a conention rightD, where a Dpublic
authorityD is any person or body which exercises a public function,
expressly including the courts but expressly excluding 9arliament"
&lthough the European Conention has begun to be applied to the acts of
non2state agents, the 7'& does not ma,e the Conention speci5cally
applicable between priate parties" Courts hae ta,en the Conention
into account in interpreting the common law" *hey also must ta,e the
Conention into account in interpreting &cts of 9arliament, but must
ultimately follow the terms of the &ct een if inconsistent with the
Conention"
Similarly, because the U: remains a strong international trading nation,
international consistency of decision ma,ing is of ital importance, so the
&dmiralty is strongly inFuenced by 9ublic #nternational Law and the
modern commercial treaties and conentions regulating shipping"
Statutory law
*he 5rst schedule of the #nterpretation &ct 1@?A, de5nes the following
termsH D$ritish #slandsD, DEnglandD, and DUnited :ingdomD" *he use of the term
D$ritish #slesD is irtually obsolete in statutes and, when it does appear, it is
ta,en to be synonymous with D$ritish #slandsD" ;or interpretation purposes,
England includes a number of speci5ed elementsH
Wales and $erwic, &ct 1?/3, section ) (entire &ct now repealed!
formally incorporated Wales and $erwic,2upon2*weed into England" $ut
section / Welsh Language &ct 1@3? proided that references to
England in future &cts of 9arliament should no longer include Wales
(see now #nterpretation &ct 1@?A, Schedule ), part 1!" $ut >icey I
0orris say (at p(A! D#t seems desirable to adhere to >iceyJs Kthe
originalL de5nition for reasons of conenience and especially of breity"
#t would be cumbersome to hae to add Dor WalesD after DEnglandD and
Dor WelshD after DEnglishD eery time those words are used"D
the Dad%acent islandsD of the #sle of Wight and &nglesey are a part of
England and Wales by custom, while 7arman $olt (1@)1! /? *L' (1@
expressly con5rms that Lundy is a part of England"
the Dad%acent territorial watersD by irtue of the *erritorial Waters
=urisdiction &ct 1A?A and the Continental Shelf &ct 1@3/ as amended
by the Cil and 8as Enterprise &ct 1@A("
D8reat $ritainD means England (with Wales! and Scotland including its
ad%acent territorial waters and the islands of Cr,ney and Shetland, the
7ebrides, and 'oc,all (by irtue of the #sland of 'oc,all &ct 1@?(!" *he DUnited
:ingdomD means 8reat $ritain and +orthern #reland and their ad%acent
territorial waters" #t does not include the #sle of 0an, nor the Channel #slands,
whose independent status was discussed in 'oer #nternational Ltd" Canon
;ilm Sales Ltd" (1@A?! 1 WL' 1.@? and Chloride #ndustrial $atteries Ltd" ;" I
W" ;reight Ltd" (1@A@! 1 WL' A()" *he D$ritish #slandsD means the DUnited
:ingdomD, the #sle of 0an, and the Channel #slands"
Citation style
Statutory law is referred to as D*itle of &ct MearD, where the title is the Dshort
titleD, and ends in D&ctD, as in D#nterpretation &ct 1@?AD" Compare with
&merican conention, which includes DofD, as in DCiil 'ights &ct of 1@3/D"
*his became the usual way to refer to &cts in the second half of the 1@th
century, starting in the 1A/4s< preiously &cts were referred to by their long
title together with the regnal year of the parliamentary session in which they
receied 'oyal &ssent, and the chapter number" ;or example, the 9leading in
English &ct 1)3( was referred to as )3 Edw" ### c" 1., meaning D)3th year of the
reign of Edward ###, chapter 1.D, though in the past this was all spelt out,
together with the long title"
Equity law
E1uity law represents the custom of courts outside the common law or
coded law" E1uity proided remedies in situations in which precedent or
statutory law might not apply or be e1uitable"
$y the end of the 1)th century, the English ,ing6s common2law courts had
largely limited the relief aailable in ciil cases to the payment of damages and
to the recoery of the possession of property" *hey had refused to extend and
diersify their types of relief to meet the needs of new and more complex
situations" >isappointed litigants had turned to the ,ing with petitions for
%ustice because the courts had aBorded either no remedy or one that was
ineBectie" *hese petitions were referred to the lord chancellor, who was the
,ing6s principal minister" $y the early years of the 1/th century the petitions
were going directly to the chancellor, and by the middle of that century the
Court of Chancery was recogni-ed as a new and distinct court"
*hese deelopments resulted in the fashioning by the chancellor of new
e1uitable remedies" *he following are representatieH speci5c performance of
contract, whereby the ictim of a breach might compel the exact performance
promised if damages would be a poor substitute, as in contracts to sell land and
uni1ue chattels< the enforcement of trusts, where one who had been gien title
to property in order to manage it for another was re1uired to ful5ll his 5duciary
obligations< in%unction to preent threatened or continuing wrong, such as
destruction of the plaintiB6s inaluable shade trees< restitution of bene5ts
wrongfully ac1uired, by compulsory surrender of the ill2gotten gains, in order to
preent un%ust enrichment< the correction and cancellation of written
instruments for mista,e and misrepresentation< and the e1uity of redemption,
which enabled a defaulting mortgagor to reclaim his land if he tendered
principal and interest within a reasonable time after forfeiture and before
foreclosure" Such new e1uitable remedies contrasted with the narrow rigidity of
common2law remedies"
*he full growth of e1uitable remedies was retarded, howeer, by political
pressures from %udges and 9arliament not to trespass upon the proince of the
separate law courts" &s a result, the chancellor was forced to agree not to hear
a case unless there was no remedy at law (e"g", trust! or the remedy at law was
inade1uate or the threatened in%ury would be irreparable"
&nother restrictie inFuence was the deelopment of precedent in the
Chancery" ;or generations the chancellors had not considered themseles
bound by precedents or rules of law< emphasis had been put mainly upon the
discretionary treatment of needs of the indiidual case" ;rom the mid213th
century on, howeer, the chancellors were usually common lawyers who began
shaping e1uity into an established set of rules" $y the middle of the 1?th
century the e1uity administered by the Court of Chancery had become a
recogni-ed part of the law of the landH e1uity gae %ustice according to law
rather than executie %ustice" ;inally, by the =udicature &ct of 1A?), the
competitie, separate law and e1uity courts, with their attendant delays,
expense, and in%ustices, were abolished and their wor, combined in a single,
departmentali-ed Supreme Court of =udicature"
Courts of e1uity also deeloped early in the United States< but in the late
1@th and early (4th centuries most U"S" states similarly abolished the
distinctions between actions at law and suits in e1uity and fused their
administration in one procedural system, with only one ciil action, in the same
court"
0odern e1uity has been much assisted by legislation" *he old notion that
e1uity protects only property rights has been irtually abandoned" +ow an
employee, for example, can be barred from competing with his employer after
discharge or resignation" Statutes hae facilitated speci5c performance of
cooperatie2mar,eting contracts and agreements to arbitrate future
commercial or labour disputes" &n in%unction may now be obtainedGwhere
other factors of appropriateness permitGagainst threatened in%ury to interests
of personality, such as ciil liberties, priacy, reputation, and domestic
relations" Enabling legislation has immensely increased the resort to in%unction
by goernment agencies to preent iolation of regulatory statutes,
notwithstanding criminal penalties"
Courts of England and Wales
7er 0a%estyJs Courts of =ustice of England and Wales are the ciil and
criminal courts responsible for the administration of %ustice in England and
Wales< they apply English law, the law of England and Wales, and are
established under &cts of the 9arliament of the United :ingdom"
*he United :ingdom does not hae a single uni5ed legal systemGEngland
and Wales hae one system, Scotland another, and +orthern #reland a third"
*here are exceptions to this rule< for example in immigration law, the &sylum
and #mmigration *ribunalJs %urisdiction coers the whole of the United :ingdom,
while in employment law there is a single system of Employment *ribunals for
England, Wales, and Scotland (but not +orthern #reland!"
*he Court of &ppeal, the 7igh Court, the Crown Court, the 0agistratesJ
Courts, and the County Courts are administered by 7er 0a%estyJs Courts and
*ribunals Serice, an executie agency of the 0inistry of =ustice"
Supreme Court of the United :ingdom
*he Supreme Court is the highest appeal court in almost all cases in
England and Wales" 9rior to the Constitutional 'eform &ct (44. this role was
held by the 7ouse of Lords" *he Supreme Court is also the highest court of
appeal for deolution matters, a role preiously held by the 9riy Council"
=udicial Committee of the 9riy Council
*he 9riy Council is the highest court of appeal for a small number of
Commonwealth countries, colonies and the Channel #slands and the #sle of 0an"
*here are a number of smaller statutory %urisdictions, such as appeals from
ecclesiastical and professional bodies" *he %udges who sit on the =udicial
Committee of the 9riy Council are also the members of the Supreme Court"
*he Senior Courts of England and Wales
*he Senior Courts of England and Wales were originally created by the
=udicature &cts as the DSupreme Court of =udicatureD" #t was renamed the
DSupreme Court of England and WalesD in 1@A1, and again to the DSenior Courts
of England and WalesD by the Constitutional 'eform &ct (44." #t consists of the
following courtsH
Court of &ppeal
7igh Court of =ustice
Crown Court
Court of &ppeal
*he Court of &ppeal deals only with appeals from other courts or tribunals"
*he Court of &ppeal consists of two diisionsH the Ciil >iision hears appeals
from the 7igh Court and County Court and certain superior tribunals, while the
Criminal >iision may only hear appeals from the Crown Court connected with a
trial on indictment (i"e", for a serious oBence!" #ts decisions are binding on all
courts, including itself, apart from the Supreme Court"
7igh Court
*he 7igh Court of =ustice functions, both as a ciil court of 5rst instance
and a criminal and ciil appellate court for cases from the subordinate courts" #t
consists of three diisionsH the NueenJs $ench, the Chancery and the ;amily
diisions" *he diisions of the 7igh Court are not separate courts, but hae
somewhat separate procedures and practices adapted to their purposes"
&lthough particular ,inds of cases will be assigned to each diision depending
on their sub%ect matter, each diision may exercise the %urisdiction of the 7igh
Court" 7oweer, beginning proceedings in the wrong diision may result in a
costs penalty"
Crown Court
*he Crown Court is a criminal court of both original and appellate
%urisdiction which in addition handles a limited amount of ciil business both at
5rst instance and on appeal" #t was established by the Courts &ct 1@?1" #t
replaced the &ssi-es whereby 7igh Court %udges would periodically trael
around the country hearing cases, and Nuarter Sessions which were periodic
county courts" *he Cld $ailey is the unoOcial name of LondonJs most famous
Criminal Court, which is now part of the Crown Court" #ts oOcial name is the
DCentral Criminal CourtD" *he Crown Court also hears appeals from 0agistratesJ
Courts"
*he Crown Court is the only court in England and Wales that has the
%urisdiction to try cases on indictment and when exercising such a role it is a
superior court in that its %udgments cannot be reiewed by the &dministratie
Court of the Nueen6s $ench >iision of the 7igh Court"
*he Crown Court is an inferior court in respect of the other wor, it
underta,es, i-" inter alia, appeals from the 0agistrates6 courts and other
tribunals"
Subordinate courts
*he most common subordinate courts in England and Wales are the
0agistratesJ Courts
;amily 9roceedings Courts
Mouth courts
County Courts
0agistratesJ, ;amily 9roceedings and Mouth Courts
0agistratesJ Courts are presided oer by a bench of lay magistrates (a,a
%ustices of the peace!, or a legally2trained district %udge (formerly ,nown as a
stipendiary magistrate!, sitting in each local %ustice area" *here are no %uries"
*hey hear minor criminal cases, as well as certain licensing applications" Mouth
courts are run on similar lines to &dult magistratesJ courts but deal with
oBenders aged between the ages of 14 and 1? inclusie" Mouth courts are
presided oer by a specially trained subset of experienced adult magistrates or
a district %udge" Mouth magistrates hae a wider catalogue of disposals aailable
to them for dealing with young oBenders and often hear more serious cases
against youths (which for adults would normally be dealt with by the Crown
Court!" #n addition some 0agistratesJ Courts are also a ;amily 9roceedings
Court and hear ;amily law cases including care cases and they hae the power
to ma,e adoption orders" ;amily 9roceedings Courts are not open to the public"
*he ;amily 9roceedings Court 'ules 1@@1 apply to cases in the ;amily
9roceedings Court" Mouth courts are not open to the public for obseration, only
the parties inoled in a case being admitted"
County Courts
County Courts are statutory courts with a purely ciil %urisdiction" *hey are
presided oer by either a >istrict or Circuit =udge and, except in a small
minority of cases such as ciil actions against the 9olice, the %udge sits alone as
trier of fact and law without assistance from a %ury" County courts hae diorce
%urisdiction and underta,e priate family cases, care proceedings and
adoptions"
County Courts are local courts in the sense that each one has an area oer
which certain ,inds of %urisdictionGsuch as actions concerning land or cases
concerning children who reside in the areaGare exercised" ;or example,
proceedings for possession of land must be started in the county court in whose
district the property lies" 7oweer, in general any county court in England and
Wales may hear any action and claims are fre1uently transferred from court to
court" it sits in @( diBerent cities of U:"
*ribunals
*he Court Serice administers the tribunals that fall under the direct
responsibility of the Lord Chancellor" *ribunals can be considered the lowest
rung of the court hierarchy in England and Wales"
Special courts and tribunals
#n addition, there are many other specialist courts" *hese are often
described as D*ribunalsD rather than courts, but the diBerence in name is not of
any great conse1uence" ;or example an Employment *ribunal is an inferior
court of record for the purposes of the law of contempt of court" #n many cases
there is a statutory right of appeal from a tribunal to a particular court or
specially constituted appellate tribunal" #n the absence of a speci5c appeals
court, the only remedy from a decision of a *ribunal may be a %udicial reiew to
the 7igh Court, which will often be more limited in scope than an appeal"
Examples of specialist courts areH
o Employment *ribunals (formerly #ndustrial *ribunals! with appeal to the
Employment &ppeal *ribunal
o the Employment &ppeal *ribunal, which is a superior court of record, and
therefore not sub%ect to %udicial reiew, appeals go to the Court of &ppeal
o Leasehold Paluation *ribunals, with appeal to the Lands *ribunal
o the Lands *ribunal (England, Wales and +orthern #reland!
o the ;irst2tier *ribunal and the Upper *ribunal established under the
*ribunals, Courts and Enforcement &ct (44?
CoronersJ courts
*he post of coroner is ancient, dating from the 11th century, and coroners
still sit today to determine the cause of death in situations where people hae
died in potentially suspicious circumstances, abroad, or in the care of central
authority" *hey also hae %urisdiction oer treasure troe"
Ecclesiastical courts
*he Church of England is an established church (i"e" it is the oOcial state
church! and formerly had exclusie or non2exclusie sub%ect matter %urisdiction
oer marriage and diorce cases, testamentary matters, defamation, and
seeral other areas" Since the 1@th century, the %urisdiction of the ecclesiastical
courts has narrowed principally to matters of church property and errant clergy"
Each >iocese has a JChancellorJ (either a barrister or solicitor! who acts as a
%udge in the consistory court of the diocese" *he $ishop no longer has the right
to preside personally, as he formerly did" &ppeals lie to the &rches Court (in
Canterbury! and the Chancery Court (in Mor,!, and from them to the Court of
Ecclesiastical Causes 'esered (CEC'!" ;rom the CEC' appeals lie to the
=udicial Committee of the 9riy Council"
Cther courts
0ilitary Courts of the United :ingdom (including the Summary &ppeal
Court, Serice Ciilian Court, Court 0artial and Court 0artial &ppeal
Court!
9atents County Court (deals with simpler intellectual property cases than
the 7igh Court 9atents Court!
'estrictie 9ractices Court (deals with some competition matters!
Election court (ad2hoc courts hearing petitions against election results!
Court of Chialry (ancient and rarely2conened court dealing with
heraldry!
Courts leet (manorial courts 2 now mostly ceremonial!
)ri*ina# "ases
*here are two ,inds of criminal trialH JsummaryJ and Jon indictmentJ" ;or an
adult, summary trials ta,e place in a magistratesJ court, while trials on
indictment ta,e place in the Crown Court" >espite the possibility of two enues
for trial, almost all criminal cases, howeer serious, commence in the
0agistratesJ Courts" #t is possible to start a trial for an indictable oBence by a
oluntary bill of indictment, and go directly to the Crown Court, but that would
be unusual"
& criminal case that starts in the 0agistratesJ Court may begin either by
the defendant being charged and then being brought forcibly before
0agistrates or by summons to the defendant to appear on a certain day before
the 0agistrates" & summons is usually con5ned to ery minor oBences" *he
hearing (of the charge or summons! before the 0agistrates is ,nown as a D5rst
appearanceD"
CBences are of three categoriesH indictable only, summary and either way"
#ndictable only oBences such as murder and rape must be tried on indictment
in the Crown Court" Cn 5rst appearance, the 0agistrates must immediately
refer the defendant to the Crown Court for trial, their only role being to decide
whether to remand the defendant on bail or in custody"
Summary oBences, such as most motoring oBences, are much less serious
and most must be tried in the 0agistratesJ Court, although a few may be sent
for trial to the Crown Court along with other oBences that may be tried there
(for example assault!" *he ast ma%ority of oBences are also concluded in the
0agistratesJ Court (oer @4Q of cases!"
Either way oBences are intermediate oBences such as theft and, with the
exception of low alue criminal damage, may be tried either summarily (by
magistrates! or by =udge and =ury in the Crown Court" #f the magistrates
consider that an either way oBence is too serious for them to deal with, they
may Ddecline %urisdictionD which means that the defendant will hae to appear
in the Crown Court" Conersely een if the magistrates accept %urisdiction, an
adult defendant has a right to compel a %ury trial" >efendants under 1A years of
age do not hae this right and will be tried in the Mouth Court (similar to a
0agistratesJ Court! unless the case is homicide or else is particularly serious"
& 0agistratesJ Court is made up in two ways" Either a group (,nown as a
JbenchJ! of Jlay magistratesJ, who do not hae to be, and are not normally,
lawyers, will hear the case" & lay bench must consist of at least three
magistrates" &lternatiely a case may be heard by a district %udge (formerly
,nown as a stipendiary magistrate!, who will be a 1uali5ed lawyer and will sit
singly, but has the same powers as a lay bench" >istrict %udges usually sit in the
more busy courts in cities or hear complex cases (e"g" extradition!" 0agistrates
hae limited sentencing powers"
#n the Crown Court, the case is tried before a 'ecorder (part time %udge!,
Circuit =udge or a 7igh Court %udge, and a %ury" *he seniority of the %udge
depends on the seriousness and complexity of the case" *he %ury is inoled
only if the defendant enters a plea of Dnot guiltyD"
Appea#s
;rom the 0agistratesJ Court, an appeal can be ta,en to the Crown Court on
matters of fact and law or, on matters of law alone, to the &dministratie Court
of NueenJs $ench >iision of the 7igh Court, which is called an appeal Dby way
of case statedD" *he 0agistratesJ Court is also an inferior court and is therefore
sub%ect to %udicial reiew"
*he Crown Court is more complicated" When it is hearing a trial on
indictment (a %ury trial! it is treated as a superior court, which means that its
decisions may not be %udicially reiewed and appeal lies only to the Criminal
>iision of the Court of &ppeal"
#n other circumstances (for example when acting as an appeal court from a
0agistratesJ Court! the Crown Court is an inferior court, which means that it is
sub%ect to %udicial reiew" When acting as an inferior court, appeals by way of
case stated on matters of law may be made to the &dministratie Court"
&ppeals from the 7igh Court, in criminal matters, lie only to the Supreme
Court" &ppeals from the Court of &ppeal (Criminal >iision! may also only be
ta,en to the Supreme Court"
&ppeals to the Supreme Court are unusual in that the court from which
appeal is being made (either the 7igh Court or the Court of &ppeal! must certify
that there is a point of law of general public importance" *his additional control
mechanism is not present with ciil appeals and means that far fewer criminal
appeals are heard by the Supreme Court"
)ivi# "ases
Under the Ciil 9rocedure 'ules 1@@A, ciil claims under R.,444 are dealt with in
the County Court under the JSmall Claims *rac,J" *his is generally ,nown to the
lay public as the JSmall Claims CourtJ but does not exist as a separate court"
Claims between R.,444 and R(.,444 that are capable of being tried within one
day are allocated to the J;ast *rac,J and claims oer R(.,444 to the J0ulti
*rac,J" *hese Jtrac,sJ are labels for the use of the court system S the actual
cases will be heard in the County Court or the 7igh Court depending on their
alue"
;or 9ersonal #n%ury, >efamation cases and some Landlord and *enant disputes
the thresholds for each trac, hae diBerent alues"
Ro*aniaJs 1@@1 constitution proclaims 'omania a democracy and
mar,et economy, in which human dignity, ciic rights and freedoms, the
unhindered deelopment of human personality, %ustice, and political pluralism are
supreme and guaranteed alues" *he constitution directs the state to implement
free trade, protect the principle of competition, and proide a faorable
framewor, for production" *he constitution proides for a 9resident, a 9arliament,
a Constitutional Court and a separate system of lower courts that includes a
Supreme Court"
*he two2chamber 9arliament, consisting of the Chamber of >eputies and the
Senate, is the law2ma,ing authority" >eputies and senators are elected for /2year
terms by uniersal suBrage"
*he president is elected by popular ote for a maximum of two /2year terms" 7e
is the Chief of State, charged with safeguarding the constitution, foreign aBairs,
and the proper functioning of public authorities" 7e is supreme commander of the
armed forces and chairman of the Supreme >efense Council" &ccording to the
constitution, he acts as mediator among the power centers within the state, as
well as between the state and society" *he president nominates the prime
minister, who in turn appoints the goernment, which must be con5rmed by a
ote of con5dence from 9arliament"
Courts & Judgments
*he 'omanian legal system is based on the +apoleonic Code" *he %udiciary is to
be independent, and %udges appointed by the president are not remoable" *he
president and other %udges of the Supreme Court are appointed for a term of 3
years and may sere consecutie terms" 9roceedings are public, except in special
circumstances proided for by law"
*he Constitutional Court ad%udicates the constitutionality of challenged laws, and
decides on appeals from the regular court system concerning the
unconstitutionality of laws and decrees" *he court consists of nine %udges,
appointed for a term of @ years" *hree %udges are appointed by the Chamber of
>eputies, three by the Senate, and three by the president of 'omania"
Legal Profession
& 'omanian lawyer is an Daocat"D *here are no priate law 5rms in 'omania<
eery aocat wor,s in an aocatJs oOce, and a group of from two to six such
oOces forms a barou (from the ;rench barreau!" *here are in all about /,.44
adocates, grouped in /1 barous (one for each district and one for the city of
$ucharest!, which form, together, Uniunea &ocatilor din 'omania (*he
&docatesJ Union of 'omania!" Candidates for the bar must obtain an approed
law degree< the course lasts four years" 8raduates must then complete two years
of superised practical training leading to a $ar Examination" &pplicants are then
fully 1uali5ed"
Courts in Romania
'omania has a ciil law system, based on the ;rench model, with arious leels of
court hierarchyH
Local courts ('omanianH Judectorii!
/4 county courts and the $ucharest 0unicipal Court ('omanianH Tribunale!
1. Courts of &ppeal ('omanianH Curi de apel!
the 7igh Court of Cassation and =ustice ('omanianH nalta Curte de Casaie
i Justiie!
the Constitutional Court ('omanianH Curtea Constituional!
High Court of Cassation and Justice
*he 7igh Court of Cassation and =ustice ('omanianH Tnalta Curte de CasaUie Vi
=ustiUie! is 'omaniaJs supreme court, and the court of last resort" #t is the
e1uialent of ;ranceJs Cour de cassation and seres a similar function to other
courts of cassation around the world" +icolae 9opa sered as its president from
(44/ to (44@"
#t held arious names during its existenceH D*ribunalul SupremD (Supreme
*ribunal! during Communist times (1@/?21@@4!, and DCurtea SupremW de =ustiUieD
(Supreme Court of =ustice! from 1@@4 to (44)" *he name DTnalta Curte de CasaUie
Vi =ustiUieD was re2introduced in (44), haing been also used during the :ingdom
of 'omania (until 1@/?!"