-
In this article, the author analyzes the legal nature of the parliamentary committees and concludes, together with other authors, that they should be considered as internal working bodies of each Legislative Chamber. The role of parliamentary committees, whether standing committees or committees of inquiry, or other special committees, is to prepare the works which are going to be debated in the plenum of the Legislative Assemblies. As working bodies, the parliamentary committees do not have their own decision-making power over the matter referred to them. In other words, the parliamentary committees do not express a political will, in a deliberative sense, because their role is to examine the matters referred to them by the standing bureaux of the Legislative Chambers and to make proposals thereto. The reports and opinions they make on the matters under examination have the value of recommendation made to the plenum of each Legislative Chamber, these being free – as deliberative bodies – to accept or reject the solutions proposed by the committees. Each Chamber of Parliament has the full freedom to set up specialized committees in certain areas of activity. The Constitution obliges the Legislative Chambers to set up permanent committees and to set up – when it deems necessary – committees of inquiry or other special committees. The composition of the parliamentary committees reflects, as far as possible, the political configuration of the Chamber that has decided to set them up. -
In this article the author analyses who can have active and passive quality in administrative contentious disputes according to the provisions of Law No 554/2004 of administrative contentious, as amended by Law No 212/2018 for amending and completing the Law on administrative contentious No 554/2004 and other normative acts. The article highlights the correlations existing between the Law of administrative contentious, the Civil Code and the Civil Procedure Code in the subject matter. The article provides solutions to many practical problems.
-
The authentic document is the document drawn up or, as the case may be, received and authenticated by a public authority, by the notary public or by another person invested by the state with public authority. Likewise, any other document issued by a public authority and to which the law confers this character is authentic. In other words, in order to be qualified as „authenticated document”, a document must meet the following requirements: a) be drawn up or, where appropriate, received and authenticated by a public authority, a notary public or by another person invested by the state with public authority; b) the instrumenting agent must be competent from material and territorial point of view to instrument the document; c) to be drawn up in compliance with the formalities required by law or, as the legislator specifies, „in the form and under the conditions established by law”. The legislator devotes the field of authenticity to the document, specifying the elements which relate to authenticity, namely: establishing the identity of the parties; expressing their consent about their content; the signature of the parties and the date of the document [Article 269 (1) second sentence of the Civil Procedure Code, Article 90 (2) of the Law No 36/1995]. The signature of the public servant confers authenticity to the document on which it is given. It follows that it falls into the field of authenticity what the instrumenting agent finds ex propriis sensibus. The document which by its form and appearance (the signature of the public notary or the public servant, the seal of the authority, the registration number, etc.) has the aspect of an authentic document drawn up regularly enjoys the presumption of authenticity and validity, and the contesting party can only fight against it by means of the procedure of registration of forgery.
-
Fără îndoială, după 2007, anul aderării României la Uniunea Europeană, unul din avantajele preluării în sistemul juridic național a unui set de reguli care funcționa de mai bine de 30 de ani la nivelul statelor membre ale Uniunii ar fi putut fi evitarea erorilor și disfuncționalităților care au marcat evoluția acestor reguli. Era de așteptat ca în materia achizițiilor publice erorile de aplicare a reglementărilor, care au fost corectate pe parcurs de Curtea de Justiție a Uniunii Europene, să nu mai fie reluate în aplicarea acestor reglementări în sistemul național. Cu toate acestea, de o manieră relativ nespectaculoasă, practica în materia achizițiilor publice reia o serie de erori legate de calificarea contractelor supuse directivelor în materie, deși acestea au fost clarificate de jurisprudența Curții de Justiție a Uniunii Europene.
-
On the background of some possible controversies, the rational interpretation of Article 56 (4) of the Labour Code involves the solution according to which the conclusion of an independent individual labour contract does not take place, but the initially concluded contract of the employee is extended, with the approval of the employer. As a result, the cessation by law of the contract takes place at the time when one of the time limits agreed upon is reached: one, two or maximum three years.
-
The study intends to make a comparative analysis of the legal provisions of the Romanian Civil Code from 1864, in relation to those of the current Civil Code, regarding the tort civil liability, highlighting similarities and differences between the two regulations, by presenting some novelty elements which the legislator brought to the current Civil Code. It was envisaged a historical presentation of the doctrinal conceptions regarding the civil liability, based initially on the subjective theory and the evolution towards the objective approach of liability, in the variants of profit risk, of the risk of authority and the risk of activity, by specifying the coexistence of the two foundations of liability, subjective and objective, and of the scope of each of them. Our attention is retained by the presentation of the foundation of civil liability in the system of national law, the elements of convergence and divergence between civil liability and contractual civil liability, the technical forms of tort liability, the liability for one’s own deed, the guilt and liability exonerating causes, the civil illicitness and the causes of removal of the illicit nature of the deed, the tort liability of the legal person, the novelties of the regulation of the liability for the deed of another (minors, persons under interdiction, the liability of the principals for the damage caused by minors) and the legal foundation of this liability, the liability for the damage caused by animals and the ruin of the edifice. It is also retained the new vision of the current Civil Code in the matter of liability for things, with special regard to the matter of collision of vehicles and the legal basis of this liability.
-
The study addresses the issue of the role of the judicial power within the system of separation of powers in the state, as well as its interaction with the legislative power, respectively the executive power, mainly using the method of analysis and of the case study, respectively of the jurisprudential study. Starting from the necessity, justified in a democratic state, of the existence of a system of mutual control between the authorities called to exercise the power, the authors present the creative role of the judge, called upon to apply, by interpretation, his right and principles, to a situation of fact, pursuing the respect for citizens’ rights and freedoms. Certainly the necessity of limiting the abusive or arbitrary conduct in exercising the functions of any of the three powers of the state can only be achieved when mutual control is effective and guaranteed by the legal regulations, as well as by the institutional practice, based also on the principle of loyal collaboration between institutions and public authorities. The members of the judicial power must respect high standards of ethics and professionalism, and their independence and impartiality are guarantees of respecting their role in democratic regimes based on the principle of separation of powers. The paper presents aspects referring to the interaction of the judicial power with the legislative one and the executive one respectively, by analysing the relevant case law of the Constitutional Court, which has established the parameters of this relationship, so as to guarantee the respect for the functions assigned by the Fundamental Law to each power, respectively to respect the citizens’ freedoms and the prevention of arbitrariness in the exercise of power.
-
In the present study we have proceeded to analyze the text of Article 318 of the Criminal Procedure Code, in the light of the judicial practice in the matter. We also insisted on presenting some malfunctions in the application of the provisions of Article 318 (16) the 2nd sentence of the Criminal Procedure Code, provisions which in their essence prohibit the case prosecutor to adopt a solution to abandon criminal prosecution in the event that this solution was initially rejected by the preliminary chamber judge. The provision in question is all the more controversial as it is mentioned even therein this prohibition irrespective of the reason invoked, which leads to the conclusion that the solution to abandon criminal prosecution can no longer be ordered by the prosecutor, even if the evidence administered show that its adoption is required. In this context, the provisions criticized seem to be unconstitutional, because by applying them, the prosecutor is obliged by the legislator to violate several provisions of the Constitution, among which there is the principle of legality.
-
This paper has as objectives the analysis of the possibility to raise requests and exceptions in the procedure of confirmation of the solution to abandon the criminal prosecution, in relation to the exigences given by the right to a fair trial to which the suspect or defendant should be entitled. The study relates to the functional competence of the preliminary chamber judge and has as purpose to express the considerations for which the same procedure should be applied also in the processual course of the confirmation of the solution to abandon criminal prosecution. From this perspective, we will also analyze the competence to verify the legality of the administration of evidence by the criminal prosecution bodies in the light of its significances. At the same time, we will find out if the Decision of the Constitutional Court No 802/2017, by which the constitutional contentious court has enshrined the principle of the freedom of evidence in the preliminary chamber phase, should be applied also in the procedure of confirmation of the solution to abandon the criminal prosecution, before the preliminary chamber judge, in order to allow that it should be administered any means of evidence referring to the legality and loyalty of conducting criminal prosecution acts and the administration of evidence.
