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The study is dedicated to celebrating the centenary of the achievement of the national unity of the Romanian people and it is devoted to some of the legislative, doctrinal and jurisprudential evolutions and mutations occurred, during this period, within the institution of civil obligations. The author shows that the evolutions in question have their etiology and explanation in the social needs, determined by the specificity of the historical stages and of the political regimes which the Romanian society has gone through. His approach is placed in the general context of the most relevant changes that have occurred, over the years, in the texts of the Civil Code and of the related legislation. This explains why the study starts with an introductory paragraph, in which it is presented the general state of the old Civil Code and there are set forth its main changes, occurred after 1918. -
The participation of a tenderer in insolvency in a procedure for the award of a public procurement contract is regulated, mainly, by the directives on public procurement and by the laws which transpose them in the Member States. Within the current generation of directives on public procurement, the exclusion of the tenderer in insolvency is still classified into the category of facultative reasons of exclusion. However, as an element of novelty, if a Member State of the European Union decides to turn this reason of exclusion from facultative into mandatory, the State has the right to regulate certain circumstances in which the contracting authorities are prohibited from excluding such tenderer from the procedure. Whenever such regulation is contained in the national acts of transposition of directives, the contracting authority becomes bound to establish whether the conditions that impose the maintenance of the tenderer the procedure are met. The Romanian legislator has chosen to regulate that the contracting authority can not exclude from the award procedure the tenderer that is in the phase of observation or reorganization, if certain conditions are met. Having in view this obligation to establish whether certain conditions are met in order to maintain the tenderer in the phase of observation or of reorganization, as well as the amendments brought by the new directives in the matter of exercise of the right of the contracting authority to request clarifications, it is important to determine the extent to which, under the influence of the new regulations, the assessment commission will have to take a proactive approach or not, in order to decide whether to exclude or not such a tenderer.
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This study aims at performing a critical analysis of the Decision No 814/2015 of the Constitutional Court, by which the Court ascertained the unconstitutionality of Article 60 (1) g) of the Labour Code, which regulated the prohibition of dismissing trade union leaders, except in cases they committed serious or repeated misconducts. Also, the study puts forward a critical exam of the provisions regulating the prohibition of dismissing trade union leaders, emphasizing regulatory errors, by using historical arguments, and making consistent references to the relevant international and European legislation and case law.
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The Law No 95/2006 on the health reform stipulates, in Article 653 (2), that: „ the medical staff shall be liable under the civil law for the prejudices caused by error, which also include negligence, recklessness or insufficient medical knowledge in the exercise of the profession, by individual acts within the prevention, diagnosis or treatment procedures”. The text of law finds its applicability in the cases that raise for discussion whether the doctor’s diagnosis was a correct one and the chosen therapeutic conduct was necessary to restore the patient’s health condition. However, even under the terms of subsistence of the situation of error of diagnosis, this does not unconditionally engage the legal liability, an approach that makes necessary a distinction between the guilty diagnosis error and the excusable diagnosis error. In this study the authors intend to identify and analyze the hypotheses in which the doctor’s legal liability can operate/intervene in case of an error of diagnosis.
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Having regard to the number of judgments delivered in the field of property and of expropriation against Romania by the European Court of Human Rights, it is necessary to present the relevant principles which this court has set out, principles which the national judge is bound to observe and to apply to concrete cases, in accordance with the provisions of Article 20 of the Constitution. The principles not correlated with actual examples would be devoid of content, therefore the presentation of the most important examples on the basis of the state of fact emphasizes the correct reasoning of the Court, the more so as it has a limited competence to verify the compliance with the domestic law1, attribution which is the responsibility of the national judge.
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In this article, the author presents the procedure of individual complaint of the persons before the Constitutional Court of the Republic of Turkey. According to the Turkish Constitution and to the Law No 6216/2011 on establishing the procedures before the Constitutional Court, this procedure is an exceptional means of appeal which can be used after all the other legal means of appeal have been exhausted. The individual complaint before the Constitutional Court fulfils two basic functions: the protection of the fundamental rights and freedoms of the persons and the protection of the national legal order.
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This paper appears as a response to the debate created by the new proposals to amend the criminal codes. I believe that a legal debate should start from the fundamental principles of law and be conducted academically, presenting legal arguments and also knowing the comparative law issues related to the topic debated. This is why this paper offers a historical, current and comparative perspective in terms of recognizing the right to silence to the person being heard as a witness in the criminal trial.
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Cauza Roman Zakharov contra Rusiei, Cererea n° 47143/06, Hotărârea Marii Camere din 4 decembrie 20151
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If any person can admire his own image without any restriction, then anyone is free to fix his/her image by reproduction in different forms (self-portrait, autosculpture, etc.) and finally the image can be exploited by reproduction (here by the question of whom belongs the product of the image, how it can be exploited, who owns the good in the image, how to exploit its image). The central point of the work is the exploitation of the image of persons and goods. We will try to find out what is the legal basis of image protection depending on its subject. In this way, a leap forward will be made in the legal regulation of the right to image followed by a doctrinal and jurisprudential approach to the law that is invoked to protect the image of the goods. We will also try to capture the need for a distinct right to protect the image of goods by correlating it with the mechanism of regulating the right to image of the individual.
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After the First World War, six different systems of civil law were enforced in Greater Romania. The conflicts among these systems were settled through interprovincial law, carved by scholars and jurisprudence according to the Private international law template. This paper aims to present the choice-of-law rules and the jurisdiction grounds of the Romanian interprovincial law. The choice-of-law rules were organized according to the following principles: the status and capacity of persons were subjected to the law of the domicile of origin, movables and real estates were governed by lex rei sitae and the formal validity of legal act was subjected to the place where the act was concluded. The effects of acquired rights were subjected to the local law. Their enforcement was governed by lex loci executiones. Only the exclusive jurisdiction rules of the local law ought to be observed by the judge. For the rest of the jurisdiction rules, the local judge had to follow the jurisdictional grounds provided in the Civil Procedure Code of the Old Kingdom of Romania. The judicial decisions delivered in one province were enforced without exequatur in the other provinces.
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The study analyses the right of the accused to participate in the judgement of the case, the notification thereof and the finding of an obvious avoidance that allows for a decision to be taken in absence. In addition, there are analysed practical cases about the judgment of the case in the absence of the defendant for the reason of deliberate avoidance, as well as for reasons imputable to the authorities when the defendant has not been properly summoned.
