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Pentru motivele pe care le vom detalia în continuare, ne vom pronunța de la început în legătură cu problemele anunțate în titlu și vom afirma că este necesară revizuirea Constituției, dar, deocamdată, nu este oportună. Este necesară deoarece exercitarea puterii politico-etatice pe baza Constituției, pe parcursul a mai bine de 22 de ani, a întâmpinat dificultăți determinate de modul laconic sau deficitar de reglementare care, la rândul său, a condus la interpretarea diferită, uneori contrară, a unor reguli constituționale de către principalii actori politici, de contradicția dintre unele texte constituționale, de lipsa existenței unor principii clar formulate privind organizarea și exercitarea puterii politice, de căderea în desuetudine a unor reguli sau principii juridice înscrise în legea fundamentală, de caracterul confuz al unor reglementări, de integrarea României în Uniunea Europeană și consecințele acestui fapt pe planul exercitării puterii etc. -
Pursuant to Article 65 (1) of the (Romanian) Labour Code, the dismissal may occur for reasons not related to the employee in case the workplace held by the employee has been dissolved, for one or more reasons not related to the employee, and paragraph (2) of the text stipulates that the dissolution of the workplace must be effective and must have a real and serious cause. In this study, the author exhaustively examines the diverging opinions (solutions) in the doctrine and the case-law from Romania concerning the meaning and the scope of Article 65 (2) of the Labour Code and, then, firmly considers that, in the event of litigations, the law courts are obliged to examine not only the formallegal aspects of the measure of dismissal in the given situation, but also the opportunity of such measure, therefore, in other terms, the reality and the seriousness of dismissal (by the employer) for the reason of dissolution of the workplace held by the employee. -
The penal clause gives the advantage of leaving to the parties, and not to the law court, to fix the amount representing compensation for the damage incurred, this way the parties being informed, from the time of conclusion of contract, on what and how much the costs would be if they fail to fulfil the obligations assumed, being, from this point of view, a mechanism not only of defense against the consequences of a damaging non-performance, but also of constraint, both legal and moral, not allowing the parties to hope that, maybe, they will not pay or will pay much less for „breaking” the contract. This study examines the functions of the penal clause, namely the function of guarantee of performance of obligations, the function of mobilization of the debtor to perform its obligations, the sanctioning function and the compensatory function. At the same time, the study analyzes the consensual, incidental, sanctioning and reparative nature of the penal clause, as well as the legal nature of this type of clause.
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Questioned by an alleged absence of their own method and investigation field, legal science and research are fully legitimised in reality. Legal doctrine research deals with formal sources of law, and results in deduction and explanation of legal rules. Legal scientific research deals with legal rules in force from a formal point of view and refers to the legitimation (delegitimation) of legal rules of substantial law; its method is the deduction of general principles of law as a specific normative subsystem within the social system and the relation of the legal rules to these principles.
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The radical reformation of the criminal proceedings meant also the establishment of new legal institutions. One of them is the preliminary chamber, inspired by the Anglo-Saxon law systems, and by the continental law system. Conceived as a distinct phase of criminal proceedings, the preliminary verification raises real problems of constitutionality, being unable to fit into the mechanism of the judicial bodies stated in the Fundamental Law. In so far as it takes over functions of the judges and it excludes from debates the main subjects of criminal proceedings, it is also contrary to the requirements of the ECHR on the principles of equality of arms and equity.
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According to Article 247 of the Law No 187/2012 for the implementation of the Law No 286/2009, the Criminal Code entered into force on 1 February 2014. The new Criminal Code provides four articles for the regulation of the application of the criminal law in time: Article 3 refers to the principle of the activity of the criminal law, Article 4 regulates the retroactivity of the criminal law of decriminalization, Article 5 is devoted to the application of the most favourable criminal law before the final judgment of the case, Article 6 concerns the application of the most favourable criminal law after the final judgment of the case, and Article 7 is reserved to the application in time of the temporary criminal law. Throughout this study the author presents and explains the new criminal rules regulating the application in time of criminal law.
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Unlike the previous Civil Procedure Code, the current (Romanian) Civil Procedure Code regulates (as an exception from the rule of uniqueness of the judicial remedies of a judgment) the admissibility, in some situations, of filing an appeal ex novo during the judgment of an appeal ex novo, respectively, of filing the appeal on law during the judgment of an appeal on law. This study examines analytically this new conception and regulation of the current Civil Procedure Code (Law No 134/2009, republished), the author positively appreciating the new regulation in question.
