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The author makes a comprehensive and dense analysis of the exception of non-performance which, in his opinion, falls within the system of remedies for non-performance of contracts. At the beginning of his scientific speech, he has proceeded to a broad presentation of the notion, origin and foundations which justify the existence and the application of this important legal means, which is available to any party of a contractual relation, the content of which is formed of reciprocal and interdependent obligations. Likewise, he points out that, unlike the legislative state existing under the influence of the old Civil Code, currently, the exception of non-performance is expressly regulated, by general provisions, in Article 1556 of the new Civil Code, taken over in their essence from the German Civil Code, which entered into force on 1 January 1900. Having the provisions of the new Civil Code in this matter as legislative reference points, this study presents a vast debate on the scope of application, on the conditions of existence, on its own and specific mechanism of operation, as well as on the effects which this important remedy for non-performance of contracts produces between the contracting parties and to the third parties. The findings and the conclusions of the analysis have allowed the author to retain and to express the elements and the own features of the legal regime and of the functions specific to the exception of non-performance, based on which, ultimately, he proceeds to its delimitation from other related legal mechanisms, such as the legal compensation and the right of retention. -
In this study the author analyzes, on the one hand, the scope of application of the provisions of the Government Emergency Ordinance No 34/2014, and, on the other hand, the consumer rights in contracts concluded with professionals which fall within the scope of application of the mentioned Ordinance. We note that the Government Emergency Ordinance No 34/2014 on the consumer rights within contracts concluded with professionals transposes, into the Romanian legislation, the provisions of Directive 2011/83/EU of the European Parliament and of the Council, published in the Official Journal of the European Union, L 304 of 22 November 2011.
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The right of the creditor to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to the creditor in order to materialize his claim right held against his debtor. The opening of the insolvency procedure does not have the characteristic of a proper enforcement, whereas insolvency does not offer to the creditor the guarantee of actual satisfaction of the claim right held against the debtor. The creditor entitled to request the opening of the insolvency procedure must have held against its debtor a certain, liquid and exigible claim for more than 60 days, which shall have the minimum amount set by the law. This study intends to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, respectively the certain, liquid and exigible character.
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The remand on custody and the preventive detention are placed among the most important institutions of criminal processual law. The adoption of the new criminal processual legislation regarding the remand on custody and the preventive detention raises the question of analysing the elements of novelty contained by the new legal provisions, as well as the question of their compliance with the case-law of the European Court of Human Rights.
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Promoting a public „good governance” involves the rationalisation of the manner of functioning of the state and of the instruments used, among which there are those of a normative nature. The proliferation of legal rules – at national level, at European Union level and at international level – is today a general phenomenon, generating costs – legal, administrative, economic and others – more burdensome for the individual and for the entire society. The remedy for this situation is simplification, under its various aspects – administrative simplification, simplification of the legal language or of the legislative techniques –, an old method frequently used, however a new concept trying to stand out in the field of legal theory. The simplification of law as legal-administrative action has undergone various national and EU experiences. These have accredited a series of principles of conduct, have set targets to be attained and have promoted specific methods and techniques for achieving them.
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The idea of this study has as starting point the „ambiguity” which, under the influence of the current Community and internal regulations, floats over the legal distinction between „designs” and „models”, as well as over their legal nature. Thus, the common definition reserved by the internal and Community regulations for the design and for the model, as well as their alternative or cumulative use in the legal texts convincingly support the existence of this „normative ambiguity”. This „legal reality” is accompanied by the non-existence of some doctrinal concerns for arguing the specificity of designs and of models, mostly by reference of one to the other, but also by reference of these to other kinds of intellectual creation. In fact, as this issue has been approached in the Romanian doctrine, the authors confine themselves, as a rule, only to take over some theses from the foreign legal literature, especially from French one, being less concerned with their logical and legal grounding.
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The current Civil Code advances a detailed regulation of the reparation of damage in case of tort liability, the most important matter of this institution. Being of deep impact in practice, the need for clarity of the new legal provisions is greater than in any other area of regulation. The study proposes their text analysis, emphasizing some shortcomings of the legal terminology used, of the systematization of the matter, but there are reported, in particular, some questionable solutions contrary to the European trends in matters of tort liability.
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Both at Community level and at national level, there is the concern to allow the employees the possibility of a conciliation of the professional life with the private life, one of the measures regulated in this respect being the leave for raising a child, provided by the Government Emergency Ordinance No 111/2010. The exercise of this right can not be a reason to treat the employee differently or to affect his professional evolution, as the law guarantees the stability of the labour relation for the duration of the leave and subsequently, as well as the right to be reinstated to the same position or to an equivalent one. However, the national legislation also contains provisions which are lacking clarity, does not fully transpose the Community law in the field, so that it is required an improvement of this legislation and a greater flexibility in regulating of the situation of the labour relation for the duration of the leave for raising a child.
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The problematical issues concerning the documents issued by the President of Romania in exercising his constitutional and legal powers and the settlement of disputes derived from these documents have been less discussed in the literature of speciality. Starting from this reality, this study intends to analyze these issues, by comparing the provisions of the Law on the administrative disputes No 554/2004 to the provisions of the revised Constitution and to other special normative acts in the matter. In this context, the study analyzes in detail the documents issued by the President of Romania in exercising his constitutional and legal powers, the documents issued by the President of Romania which may be subject to an action for administrative disputes, as well as the documents which are excepted from the control of the court of administrative disputes.
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At first sight, guilt appears as being one of the necessary conditions for engaging liability, which is quite easy to determine. In fact, in order to make such a statement it must be considered the structure of guilt, formed not only of the intellective and volitive factors that make up the complex psychological process which stands at the origin of the illicit activity, but also the imputation which can be brought to the agent for a conduct inconsistent with the rigours imposed by the legal order. By the analysis made, the author of this study has emphasized both the strengths, and the disadvantages of the criteria subjectively, objectively and even intermediately used for determining the civil guilt in concrete situations. Likewise, he has also dealt with the possibility of determining the criminal guilt in the light of the psychological and normative conceptions. At the same time, by expressing his options for some of these, the author has proposed some nuancings in order to obtain some results as precise as possible and, at the same time, fair for all parties involved.
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In the matter of conditions of application of the preventive arrest measure, as in the case of other institutions, the new Criminal Procedure Code contains new regulations and takes over, to a small extent, some provisions of the previous Criminal Procedure Code (of 1968). The new Criminal Procedure Code has regulated the preventive detention in a single modality: the detention of the defendant, namely of the person against whom the criminal action has been set in motion. In this study, the authors analyze the institution of preventive detention, with special reference to the conditions of application of this measure, by presenting some critical aspects and by proposing some improvements of the new regulation. Key
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The current standards on the quality, the integrity and the non-disclosure of the professional secret in the interprofessional complementary activities of the Romanian judicial system represent, in the contemporary society, a concern to adjust to the permanently changing reality. The existence of some constants such as independence, competence, responsibility, but also honour, dignity and respect, in reality, receives new meanings, and their convergence is achieved only by way of a various communication. Creating some new modalities to ensure the common professional status is not an illusion, but a real need for the interprofessional dialogue to take place not only within a profession, but within more professions, for the purpose of ensuring the unity in the application of law.
