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Este foarte dificilă cercetarea noțiunei de ordine publică și determinarea conținutului acestei noțiuni este cu totul anevoioasă. Nu există, poate, în drept și în sociologie, o mai confuză noțiune, dar care să-și găsească mai variate câmpuri de aplicație și de care să se facă uz mai des, mai ales în ultimele timpuri, atât în relațiile particulare dintre indivizi, cât și în legăturile și raporturile dintre Stat și individ de o parte sau dintre State, de altă parte. Stabilirea conținutului exact al ordinei publice și analizarea tuturor efectelor sale depășesc cu mult cadrul normal al unui articol, chiar mai lung, dintr’o revistă juridică. Vom căuta totuși, în cele ce urmează, a schița rapid datele problemei, fără a pretinde că, în acest fel, am epuizat subiectul; de altminteri, intenția noastră nu este decât de a face o sumară introducere în examinarea acestui subiect a cărui analiză poate face obiectul unui întreg tratat. -
Ideea de reparație este, cum scria un autor, „una din cele mai vechi idei morale ale omenirei” (G. Ripert, La règle morale dans les oblig. civiles nr. 121, p. 223). În decursul timpurilor ea a suferit o serie de transformări, a parcurs mai multe etape, rezumate în cele 4 subtitluri ale studiului de față, care urmărește numai să schițeze în linii mari sensul acestei atât de interesante evoluții, care are semnificația drumului penibil al însăși ideei de Dreptate. Noțiunea de răspundere, în adevăr, se situiază în centrul tuturor instituțiunilor juridice care au de obiect reglementarea raporturilor între indivizi în societate, având un rol regulator și sancționator, întru cât tinde la păstrarea echilibrului rupt prin actele ilicite, fie că sunt violări de obligațiuni contractuale, fie că au caracterul și mai grav al călcării unor norme de conduită, pe pare societatea însăși le impune și îndeosebi acea normă negativă universală de neminem laedere, care constitue în esență principiul din care decurge însăși ideea de răspundere.
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Competența materială de a judeca propunerea de arestare preventivă a inculpatului față de care s-a pus în mișcare acțiunea penală pentru infracțiunea de nerespectare a regimului armelor și munițiilor, prevăzută de art. 342 C.pen., aparține judecătorului de drepturi și libertăți din cadrul judecătoriei, chiar dacă în cauză s-a început urmărirea penală in rem pentru infracțiunea de constituirea unui grup infracțional organizat, prevăzută de art. 367 C.pen.
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The legality of judgments adopted by courts, the effectiveness of law enforcement functions and the enforcement of criminal repression in respect of offenders are the priority issues that justice reform in the Republic of Moldova must address. The existence of an independent and impartial judiciary is an inherent attribution of a state without which a democratic society can not be built. And, the protection of legality in the field of justice is indispensably conditioned by ensuring the achievement of the purposes of the judicial process.
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The article sets out two components of the case of cassation on the application of the punishment within other limits than those provided by law: the scope of incidence the case of cassation in question and the solutions that may be given subsequent to the admissibility of the means of the appeal in cassation and the cassation of the challenged judgment, in this case. In the scope of incidence of the case of cassation on the application of punishments within other limits than those provided by the law several assumptions of violation of the principle of legality of the criminal law sanctions are included. First, the appeal in cassation is suitable to remedy illegalities which relate to the very nature of the sanction applied: punishment or educational measure. Secondly, an appeal in cassation may be filed to remedy illegalities related to punishments, regardless of their nature: main, complementary or accessory. Thirdly, within the category of main punishments, by way of appeal in cassation illegalities concerning the placement of punishment outside the special limits can be remedied, in the absence of a individualization cause. Under a first aspect, there may be invoked illegalities concerning the placement of punishment below the special minimum limit, in the absence of a mitigating cause. Under a second aspect, there may be invoked illegalities concerning the placement of the punishment over the special maximum limit, in the absence of an aggravation cause. Also within the category of the main punishments, by way of appeal in cassation there may be remedied illegalities resulting from the misapplication of the criminal treatment of the various causes of individualization.
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This article analyzes the particularities of the suspension by judgment of the enforcement of administrative acts. The legal institution of suspension of the enforcement of administrative acts is a legal instrument made available to the persons claiming to be injured and constitutes a guarantee against the producing of some irreparable damage. The author investigates the conditions and legal effects of the suspension of the enforcement of the administrative act after formulating the prior complaint and the suspension requested in the main proceedings, including also some proposals de lege ferenda. The research is carried out taking into account the latest amendments to the Law on administrative disputes No 554/2004 by the Law No 212/2018 amending and supplementing the Law on administrative disputes No 554/2004 and other normative acts. Also, within this research, the author refers to the decisions of the Constitutional Court on the pleas of unconstitutionality raised in this matter.
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Termination of payments or insolvency is the patrimonial state of an entrepreneur that is outlined by the impossibility of creditors to pay. In this case, a collective procedure is in place to cover the insolvency debtor’s liability, a procedure governed by the provisions of Law No 85/2014 on insolvency and insolvency prevention procedures. This procedure, although it is a collective one, retains its contradictory character, litigious issues being usually settled with parties summoning. The fundamental principles of the civil process governed by the Civil Procedure Code also apply to insolvency. The Civil Procedure Code is the common law of insolvency where the Insolvency Law does not contain special rules. The way in which the participants in the procedure are summoned or notified, as well as the manner in which the communications of procedural documents and information in the insolvency proceedings are made, are simplified and dematerialized. Notifications and communications are made through the Insolvency Procedures Bulletin (BPI), an electronic publication managed by the Trade Registry. Anyone can get information on a business partner’s insolvency procedure through a simple search in this database.
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As a novelty, the legislator provides, in the current Civil Procedure Code, that the evidence of an act or of a legal fact can be made, among others, by using the material means of evidence (Article 250), to which it dedicates the provisions of Articles 341–344, provisions which constitute the common law in the matter. Things which, by their attributes, by their appearance or by the signs or traces they preserve, serve to establish a fact that can lead to the settlement of the trial are material means of evidence. Likewise, in the legislator’s conception, the registrations of the state or location of objects or certain factual situations, regardless of the way of registration, are also material means of evidence. In this hypothesis, the material evidence (the content of the registration) is submitted to the court through the technical support used for registration. The solution of the legislator to acknowledge, in the Civil Procedure Code, provisions relative to the material means of evidence is natural, since, in accordance with the criteria used in the doctrine, material evidence is direct, primary, or immediate evidence, personally perceived by the judge of the case. Perhaps that one of the sources of inspiration for the Romanian legislator was the Civil Code of Québec. Although the French civil legislation does not contain express provisions on the material evidence, the French doctrine and the case law of the French Court of Cassation in the matter have also represented a reference for the Romanian legislator.
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The present study illustrates a sensitive issue of the disciplinary procedure concerning civil servants, insufficiently debated in the speciality literature, namely the possibility of the titular of the disciplinary complaint to resort to the courts in order to refute the report by which the disciplinary investigation is finalized with a proposal to classify the complaint. The research is structured starting from the solution given to this issue by the courts themselves, in the few decisions that deal with the subject, a solution which the author attempts to combat in the light of the current legislation in force, insufficient in its turn, corroborated with the relevant approaches taken from the decisions of the Constitutional Court. Apart from the elements of novelty and originality of the analysis, it is distinguished by its applied character, knowing the ideas conveyed by the author being necessary not only for the civil servants involved in disciplinary conflicts – as defending parties or as members of the disciplinary commissions –, but also for the judges called upon to decide on the legality and grounds of the solutions for dismissal of the disciplinary complaints. The thesis of inadmissibility of the actions seeking the annulment of the dismissal solutions should be reconsidered, the author’s opinion being that the commissions’ reports can be included among the administrative acts (by express or tacit validation by the leader to whom they are presented) or in the refusal to perform an administrative operation, as a challengeable act under Article 8 (1) of the Law on administrative disputes No 554/2004. It is certain that concealing reports from the commission against any form of control is not only harmful (at least at moral level) to the titular of the complaint, but also abnormal, unjust and unlawful.
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Starting with 25.05.2018 the Regulation (EU) No 679/2016, also referred to as Regulation on the protection of individuals with regard to the processing of personal data and on the free movement of such data has entered into force. This regulation, although replacing the previous applicable directive in the matter, respectively Directive 95/46/EC, taking over from its functioning principles, brings significant novelties from the point of view of the general framework in the matter of protection of personal data, circumstantiating and detailing many of the mandatory rules in the matter. By proposing to create a common framework at unional level, the Regulation No 679/2016 provides the necessary clarifications on the background of the galloping technological evolution and the accelerated growth of cross-border personal data flows. To that end, the aim pursued by the mentioned Regulation is to create a coherent and sound framework in the matter of data protection in the Union, in the context of a climate of confidence which will allow digital economy to expand on the internal market. It is, thus, intended to ensure that individuals benefit by a greater control over personal data, as well as to consolidate legal and practical security for the natural persons, the economic operators and the public authorities. Likewise, the Regulation strictly stipulates the premises in which any processing of personal data may be considered as being lawful and, thus, allowed, at the same time with the circumstantiation of the conditions in which the person concerned may be considered to have given his consent to the forecast processing. Also, a central element of the new European legislative initiative is to provide the necessary measures to ensure the transparency of the processing of personal data. In this respect, there are configured the obligations devolving on the operators of such data to inform the persons whose data are processed, as well as the cases and conditions in which the natural persons are entitled to rectify, erase or restrict the use of data concerning them.
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The evolution of technology has facilitated the development of the so-called collaborative economy. Through collaborative online platforms, which „remove” the borders between states, various services such as short-term housing rental (Airbnb type), urban transport (Uber type), pet-sitting (PetBacker type), and others are provided. In Romania, the activities specific to the collaborative economy are in full development, in the context of the absence of some regulations specific in the matter. The purpose of the paper is to determine the role of the service provider in electronic contracts concluded through collaborative platforms and to which rules they must be subjected, taking as reference system the service provider with the habitual residence in Romania. It is analysed only the situation of service providers – natural persons, which can be grouped into two categories: a category of persons providing various services on an occasional basis, in leisure time, in order to obtain additional incomes (the so-called prosumers), category which is the basis of the collaborative economy, and the second category, which includes the persons who provide services on a regular basis, on a continuous basis, on their own and aiming at obtaining profit. The distinction between non-professional and professional service providers is difficult to achieve; there are no criteria in the legislation in the field of services for this purpose. The quality of professional or non-professional must therefore be analysed on a case-by-case basis, using the rules of the common law. The legal regime depends on the classification of the service provider into one category or another. The contracts in the collaborative economy are concluded by means of online collaborative platforms. Those operating in Romania mostly have their headquarters abroad, which awards international character to the contracts concluded. Using the regulations in force, there are analyzed the modalities to determine the law applicable to contracts and the authority competent to solve the disputes, which may arise between the service provider and the platform or between the service provider and their user. The study captures only a small part of the collaborative economy phenomenon and seeks to clarify some day-to-day situations, which can give rise to some complex legal problems.
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In this article, the author proposes to make some theoretical and practical reflections on the definition of the law. Until now, in no law school and no judicial culture system it was formulated a definition of the law, to be accepted as a universal definition. Latin jurists – to whom the entire European judicial civilization is related – have not even been preoccupied with defining the law, but they have left us as legacy several definitions of the law, that is of positive law. The author points out that the scientific concept of law depends on the particularities of the judicial regulation of the social relations, which are different from country to country and from one national judicial system to another. It would be very difficult to formulate a universal definition of the law, given that each people has its own psycho-social characteristics which can not be accommodated with similar characteristics of other peoples. The author considers that in democratic societies, based on the principles of the state of law and which have at the centre of their public policies the individual, through law it is achieved a balance between the power of the state and the autonomy of the individual will. By law it is ensured the respect for the fundamental values of the nation, a democratic government centred on the sovereign will of the nation, as well as the individual rights and freedoms of citizens. In conclusion, the author points out that the law-making process in any state must be legitimate, namely it must express the will and fundamental demands of the citizens, the most general interests of the population. Finally, the author proposes a set of formal requirements-criteria for assessing the laws passed by the Parliament.
