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In this study, the author proceeds to an exhaustive analysis of the provisions of Articles 519–521 of the new Romanian Civil Procedure Code, which, for the first time in the Romanian legislation, establish „the referral to the High Court of Cassation and Justice for a preliminary ruling for the settlement of some points of law”, also in correlation with some legislations of other states or international jurisdictions in the matter. -
The current Romanian Civil Code (entered into force on 10 October 2011), unlike the previous Romanian civil legislation, regulates a new legal institution, namely the designation of the guardian of the child by his parent in certain situations (Article 114 et seq. of the Civil Code), apart from the appointment of the guardian by the court. Likewise, the Romanian legislation also regulates the designation of the representative of the natural person, under the special conditions of the Law on the mental health and the protection of persons with mental disorders No 487/2002 or according to the Law No 272/2004 on the protection and the promotion of the child’s rights (republished on 5 March 2014) assuming the child’s parents are working abroad. All these assumptions of designation of the guardianship of the child by his parent represent the object of analysis of this study.
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This study is a brief essay on the right to one’s own image, as it is regulated in Article 73 et seq. of the Romanian Civil Code (the Law No 287/2009, republished on 15 July 2011 and entered into force on 1 October 2011).
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This paper aims to make an analysis of the judicial trials and applications related to the insolvency procedure, from the perspective of the subjects of law who have legal standing in these cases. Having in view general notions and principles of the lawsuit, as well as derogatory provisions provided by the current insolvency law, there have been analyzed relevant aspects referring to the notion of processual parties in these cases, the delimitation of the notion of participants in the insolvency procedure, the criteria for determining the parties and the subjects of law which may be parties in these cases. In relation to concrete applications, actions and contestations related to insolvency, there have been presented not only the manner in which participate in the trial the subjects of the procedure between which there are established litigious legal relations brought to justice (the debtor and the creditors), the judicial administrator and the judicial liquidator, but also the persons who, as they are not participants in the procedure, acquire processual legitimacy in certain determined litigations.
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In this article the author shows that justice is one of the pillars of the state of law, which ensures the implementation of the principle of the rule of law, the foundation on which this type of state is built and developed. Likewise, the author makes brief considerations on the notion of justice, as well as on its administration, especially on the independence of judges and on the impartiality of justice. The analysis takes into account both the European standard and the Romanian law in the matter.
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In the absence of a meaning established by the legislator and in the presence of some modest doctrinary concerns, this study tends to be a contribution to the definition of „invention”, in general, and of „patentable invention”, in particular. Likewise, there are analyzed the „substantive conditions” for the patentability of the invention, the „elements” and the „scientific creations” which are not regarded as inventions, as well as the „unpatentable inventions”. In this context, there are also presented some situations where the provisions of the Regulation implementing the Law No 64/1991 on invention patents exceed the provisions of this Law and the legislative technique rules for elaborating the normative acts.
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As the phrase „contractual balance” is too vague, for the purpose of clarifying its content, it has been used the notion of proportionality which is translated by a ratio between finality (purpose) and the means for achieving it. The proportionality, in its turn, does not consist in a mathematical relation, for this would mean ignoring the essence of the contract, namely the will of the contracting parties. So further specifications have been necessary in the sense that the proportionality is, at the same time, a measurement instrument and a sanction, namely a principle of fair-measure that puts into practice a finalised proportionality which relates to the legitimate objectives pursued or that should be pursued, which requires sometimes a strict proportionality, other times a relative proportionality, consisting in sanctioning only the obvious abuses. The proportionality contributes to the implementation of the principle of maintaining the durability and the efficiency of the contract, which favours the maintaining of the quality of the contract content, both at the time of its formation and for the duration of its performance, the sanction falling within the institution of lesion and, respectively, of unpredictability.
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This study analyzes a correlation between the Fiscal Procedure Code (the suspension of the extinctive prescriptions in tax matters) and a provision of the Civil Code (suspension of the extinctive prescription as long as the debtor deliberately conceals from the creditor the existence or the exigibility of the debt). The corroboration of these texts, implicitly imposed by the Criminal Procedure Code, raises a series of legal issues, which the author analyzes and, in her opinion, settles them as well.
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One of the situations in which the employer has the initiative to suspend the individual labour contract of the employee is the one regulated by Article 52 (1) a) of the Labour Code, i.e. during the preliminary disciplinary investigation. The employer may not exercise the right abusively conferred by the law, a fact which has been accepted both in doctrine and in case-law. In the absence of some clarifications within the content of the mentioned legal provision, some issues are raised in relation to the existence of a maximum duration of the disciplinary investigation and to the relevance in this regard of the period during which the decision to apply a disciplinary sanction may be issued, as well as in relation to the reasons likely to justify the decision to suspend the individual labour contract.
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The article deals with the right of the pre-university teaching staff to the reimbursement of the equivalent value of the transportation from the domicile to the education unit, by private car, as well as with the possibility to grant in favour of the heirs, in the current regulation, the death aid due to them as a result of the death of the pre-university or university teaching staff.
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Within every form of legal liability, the act inconsistent with the legal rules for which liability is engaged is qualified expressly by law. This study aims to analyze comparatively the offence and the contravention, regarded in the light of recent legislative influences, appeared in the field of criminal law. In order to achieve this intended objective, the structure of the material elaborated by the author envisages the following sequence: the historical evolution of the offence and of the contravention; the definition of the offence and of the contravention; the system of punishments and the sanctioning regime; other aspects of the legal regime of the offence and of the contravention. The analysis covers the following: the stage of legislation, the point of view of the doctrine, as well as the case-law. Finally, there are presented the conclusions reached as a result of this approach and there are formulated de lege ferenda proposals.
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The offence committed during the fulfilment of the obligation loses its prohibitive character and thus re-enters the scope of licitness, becoming again compatible with the rule of law. This study examines thoroughly this notion not detailed in the new Criminal Code and intends to trace the outer limits to which this justificative cause is applicable, especially with reference to the categories exposed to such occupational hazards, such as the military, the police officers, the physicians and others.
