-
The Order of the minister of health No 1411/2016 introduces, in the Annex to the Order of the minister of health No 482/2007, a new article, that is Article 51, which regulates a new form of civil liability opposite to the liability of the principal for his agent, where the agent (the medical staff) is objectively liable for the deed [the situations provided by Article 655 (1) of the Law No 95/2006] of the principal (the sanitary unit). Article 51 of the Annex to the Order No 482/2007 is unlawful because it violates the express provisions of Article 654 (2) a) of the Law No 95/2006 (which exonerates ex lege the medical staff from the liability for the prejudices caused by the working conditions) and it is confusing, because, although it represents a methodological norm of a special law, it makes reference to the common law (Article 1373 of the Civil Code) which regulates exactly the opposite, namely the objective liability of the principal for the deed of the agent based on the idea of guarantee of the principal, that covers the risk of activity and of authority. -
This study is devoted to a particular analysis of the reason for contestation for annulment provided by Article 503 (2) point 2 of the Civil Procedure Code, text which allows the cancellation of a judgment when it is found that „the solution given to the recourse” is the result of a „material error”. The author argues that the mentioned text does not allow a broad interpretation, namely in the sense that the material errors could lead to the cancellation of a judgment for mistakes that concern the merits of the case. The current regulation does not provide sufficient arguments for a different approach than the one promoted under the influence of the previous Civil Procedure Code, and this despite the fact that Article 318 (1) of this Code was using the phrase „material mistake”, and not that of „material error”. In the author’s view the whole physiognomy of the contestation for annulment is materialised in the fact that this extraordinary legal remedy was made available to the parties only for the removal of some procedural errors, and not of those on the merits as well. In order to remedy some misjudgments it is open the means of appeal, and, in some cases, of the revision as well. However the contrary opinion has the merit to emphasize that there are practical situations in which the current procedural remedies could be considered as insufficient. Therefore, some future legislative approaches might also consider some reassessments concerning the regulation of the legal remedies.
-
In the Romanian civil law and civil processual law there are several particular situations that raise problems in terms of application in time of the civil law and of the civil processual law, especially in case of prescriptions, both to the extinctive prescription and to the acquisitive prescription. It is noted the fact that, in case of prescription of execution, the provisions of processual law are supplemented with the provisions of substantive law, therefore the conflict of laws in time arises not only between the civil procedure rules, but at the same time between the rules of civil material law as well. As regards the acquisitive prescription, the conflict of laws arises, in particular, between the provisions of the Decree-Law No 115/1938 and those of the Civil Code of 1864, and the situation is complicated by the fact that the moment when the prescription period starts to run is different in the two normative acts. The solution proposed by the doctrine to resolve the conflict of laws between the former Civil Code and the current Civil Code can be useful also in case of conflict in time between normative acts, in this case with regard to usucaption, in order to avoid that the applicable law be different from the law that has determined the applicable law.
-
Presently, Article 527 (1) of the Civil Code, materializing a jurisprudential solution and a doctrinal thesis substantiated under the influence of the Family Code, provides that „only the person who has the means to pay or has the possibility to acquire these means may be forced to provide maintenance” (s.n. – T.B.). This text, in relation to the provisions of Article 42 (2) c) of the Constitution, raises the question of the possibility of forcing to labour the debtor of the legal maintenance obligation, who is fit to work, but who, for reasons imputable to him, does not earn incomes from work, nor has any other means to meet this obligation”. Despite some contrary opinions, the proposed study is intended as a contribution to the logicallegal argumentation of this „legal possibility”.
-
The purpose of this paper is to offer the reader a brief incursion in the procedure of expropriation for cause of public utility, necessary to achieve some objectives of national, county and local interest, as it is regulated by the Law No 255/2010, as amended and supplemented. In this regard, the paper contains references to the relevant national case law, but also to the Norms of application of the Law No 255/2010, as well as to the applicable civil processual provisions, where appropriate.
-
In this article, the author analyzes the provisions of Article 124 of the Romanian Constitution, which have as regulatory object the administration of justice. The concept of justice can be examined from multiple points of view, including from the perspective of the theory of law. The author shows that, although justice is the favourite subject of examination of the theorists and practitioners of law specialised in the civil procedure and in the criminal procedure, it is also relevant the analysis of the term of justice from the point of view of the constitutional law. It is analyzed, thus, the concept of justice, the constitutional characters of justice, the constitutional significance of the independence of the judges and its legal effects. Unlike the independence of the judges, which is established by constitutional norm, the independence of prosecutors is established by the legislative will of the Parliament, which means that they do not benefit from constitutional guarantees, but only from the legal ones.
-
The meanings of the principle of proportionality are identified in the case law and in the legal doctrine during the modern and contemporary period, emphasizing the idea of continuity in understanding this principle. The main connotations of this principle, found in the doctrine, are expressed by the ideas of fairness, balance, adequate ratio, reasonableness, equity, but also in logical plan, by the dialectic reasoning of proportionality. The analysis of case law and of doctrine reveals the importance of this principle, whose purpose is to materialize the legal standard, to substantiate the concept of legitimacy in law and to serve as a key criterion that allows the demarcation between the legitimate manifestations of the state power and, on the other hand, the excess of power in the activity of the state authorities. The only regulations of the Romanian Constitution which specifically refer to the principle of proportionality are included in Article 53, with the marginal title „Restriction of the exercise of some rights and freedoms”. In this study, by using different ways of legal interpretation, we also identify other constitutional rules which involve this principle.
-
Present in the Romanian Criminal Code (Article 356), with ancient tradition of incrimination, the contamination of water makes the transition from the offences against public health to those concerning the environmental protection, meaning that, although being, in principle, a hazard offence, it involves an immediate result (harmful nature). This situation creates a series of difficulties in practice, including in terms of evidence, as it arises from the recent case law, a fact that requires a series of clarifications.
-
This study deals with aspects related to the procedure of recourse in cassation, which involves two stages: the admissibility in principle, which plays the role of a filter of recourses in cassation, and the examination of the recourse in cassation after the admission in principle. There are presented the effects of the recourse and the solutions that can be given for its settlement, underlining their lack of correlation with the cases of recourse in cassation, where appropriate, in the light of the decisions of the High Court of Cassation and Justice. Likewise, the decisions of the Constitutional Court and the legislative amendments operated so far concerning the trial procedure of the recourse in cassation will be considered.
-
The study deals with the manner in which the provisions of Article 227 (1) of the Criminal Procedure Code should be interpreted. It emphasizes that, although it should have been a relatively easy activity, by reference to the historical perspective, to the evolution of the texts which regulated this matter over time and to the rules set by the ECHR case law with reference to the preventive deprivation of liberty, reality proved that the judicial practice had encountered serious difficulties in interpreting and applying the provisions in question, with important repercussions also on other institutions in relation to the preventive measures. This doctrinal approach intends to analyze the different interpretations of Article 227 (1) of the Criminal Procedure Code and to propose a thoroughly reasoned manner of interpretation and application.
-
In this study we intend to discuss and to find a solution for the multiple aspects specific to the removal of application of the foreign law in the national law, but also to trace the influences of the European law on the domestic law. We will analyze in detail the independence of application of the foreign law from the condition of reciprocity, invoking the foreign law before the authorities of the forum, but also aspects concerning the contractual incorporation of the foreign law. We will define the notion of application of the foreign law and, likewise, we will subject to investigation the modalities in which this application occurs. In order to elaborate this study we will consider the relevant domestic law, the provisions of the international conventions concerning the application of the foreign law, the provisions in the matter of the European law, the legislation and the case law from different States, and we will raise for discussion the decision of the Constitutional Court of Romania No 294/2016 relating to the rejection of the plea of unconstitutionality of the provisions of Article 1.096 (1) c) of the Civil Procedure Code, which gives us a practical view on the subject-matter discussed.
-
The study1 is structured around case law elements revealed by the European Union Court of Justice in the field of protecting the financial interests, as resulting from the Judgment in Taricco and others Case. The arguments rising from this judgment have effect in two relatively neighboured matters such as fighting European revenues fraud and fighting tax fraud. Solving the case, the Court seems to abolish the borders between the two concepts, generating a series of issues in criminal law.
-
Scurte observații privind istoricul cauzei. La data de 15 iulie 2013, Comitetul cetățenilor constituit pentru promovarea inițiativei cetățenești (în continuare Organizatorii) a prezentat Comisiei Europene propunerea de inițiativă cetățenească europeană1 (în continuare ICE), intitulată „Minority SafePack – one million signatures for diversity in Europe”, ce avea ca obiect invitarea Comisiei de a adopta acte la nivelul UE (regulamente, directive, decizii individuale, recomandări), având drept scop „îmbunătățirea protejării drepturilor persoanelor
-
The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet.
-
The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet.
