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The civil liability of judges and prosecutors for damages caused by torts related to their professional duties is a subject of actuality much debated by legal professionals, the media and the civil society as a whole. Problems such as judicial errors, arrest followed by exculpatory decisions, controls and other forms of discriminatory police abuse performed sometimes at the request of prosecutors are just some of the examples observed by many contemporary societies as dangers for the human rights and liberties. The constitutions, laws and case law provide for answers to the questions in connection with the tort liability of judges and prosecutors. Latest, it becomes visible worldwide a certain way of thinking which advocates for more restrictive rules regarding the subject. This phenomenon is noticeable not only in Romania but also in other countries, such as the United States and France. The paper proposes a synthesis of the constitutional, legal framework and case law in the United States of America, with a special focus on the Supreme Court of Justice cases regarding the civil liability of judges and prosecutors. Since the notions of absolute immunity and qualified immunity in this context are quite unknown to the Romanian legal readers, this paper should add some value to their knowledge of the way of thinking the relation between independence versus accountability of the judiciary specific to the legal traditions of the U.S. From the perspective of the U.S. case law, the paper presents some of the most relevant cases of the Supreme Court of Justice such as: Stump v. Sparkman, Griffith v. Slinkard, Yaselli v. Goff, Imbler v. Pachtman, Burns v. Reed and Buckley v. Fitzsimmons. Although quite old some of them, the majority of the conclusions resulted from this case law are still valid today, with nuances, mainly in the area of the qualified immunity for prosecutors. -
At the beginning of this study, the author makes an exposition of the economic and contractual environment whose needs have determined the necessity of recognition by the legal doctrine and by the case law and then the legislative consecration of the existence of a general obligation of pre-contractual information as duty of the participants in the civil circuit. The legal basis for this obligation has been found and discovered, by way of interpretation, in the texts of the Civil Code that establish the principle of good faith in the negotiation, conclusion and execution of contracts. The author also points out that there are numerous provisions mostly in the legislation connected to the Civil Code, which pertains to the consumption law, where there are regulated specifically and in detail various obligations of pre-contractual information, in the matter of contracts concluded between professionals and consumers. In this context, it is also established the existence in the special legislation of what the legal doctrine calls „informative formalism”, which means that upon the conclusion of some contracts, where the law expressly provides so, the information which the professionals are required to provide to the contractual partners must take a certain form, which most often is the written form; the failure to comply with the requirements of informative formalism can lead to various sanctions, some of them administrative or contraventional and others of private law. The study concludes with an overview on the private law sanctions which can intervene in case of failure to perform or of the improper performance of the general obligation of pre-contractual information.
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This study deals from a theoretical point of view with the offence of conflict of interests in the light of its new regulation by the provisions of Article 301 of the Criminal Code. It also has in view some decisions of the Constitutional Court and of the High Court of Cassation and Justice which bring clarifications and simultaneously place on a constitutional path the legal text mentioned above. Within the paper it is also made a comparative analysis between the criminal incrimination of the conflict of interests and other provisions covering administrative aspects of this notion.
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As a legal instrument of applying the principle of prevention, fundamental to environment law, preliminary authorizing polluting activities consists of an administrative act (permit) ruled by a special legal regime. It is based on assessing the environmental impact, it knows a special request, management and issuing procedure, and it establishes the conditions and/or parameters of functioning for an existing or new activity, having a potentially significant environmental impact. As an individual, real, regulatory act, the environmental authorization bears a complex version, in the shape of the integrated environmental authorization.
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The matter of personal data was subjected to review, in order to adapt the dynamics of the new technologies to the imperatives for protecting personal life. Regulation (EU) 2016/679 and Directive (EU) 2016/680 have as their object the personal data processing operations and reflect the process of adaptation to the new national and cross-border realities, and also reflect the harmonization of the numerous proposals formulated, particularly by companies and by the representatives of the civil society. The analysis concerns the new Regulation (EU) 2016/679 and is divided as follows: the first part delineates the relevant provisions of the personal data, identifies the right to privacy and the right to the protection of personal data, as fundamental rights of individuals, outlines the scope of the Regulation, details the terminology aspects and exposes the personal data processing principles; the second part addresses the rights of the persons concerned and the obligations of professionals in handling the personal data, the international data transfer, control authorities and procedures envisaged in the interstate cooperation.
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Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of classified information in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the access to classified information in the course of the criminal proceedings, with a special focus on the lawyer’s access to such information, as well as by providing an overview of the substantial criminal provisions protecting classified information. With respect to the procedural standards, the underlying idea emerging from the detailed analysis of the legislation in force is that currently there is an unjustified difference in treatment within the criminal proceedings regarding lawyers, on the one hand, and magistrates, on the other hand, the former category being prevented from benefiting from an unhindered access to classified information, which directly affects the rights of the defence. As far as the criminal protection of classified information is concerned, the Romanian criminal code incriminates a variety of acts that imply the illicit disclosure of classified information, pertaining to either state or professional secrecy, and are prejudicial to the national security, the state defence as well as some public or private entities, as the case may be.
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In this article the author intends to present from a constitutional perspective the legal nature of the institution of the Public Ministry, as it was configured in the texts of the Basic Law and analyzed in the specialized doctrine. There are analyzed, in detail, the place and the constitutional role of the Public Ministry as institutional structure of the judicial authority, as well as the role and attributions of the prosecutors’ offices in conducting the criminal investigation.
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This study aims to both emphasize the specificity of employment law amidst other fields of law from Romania and also contribute to the promotion and support the thesis of its autonomy. The formula of conception and drafting of the paper privileged the development of a concrete and detailed analysis over the studies of several authors, regarding the question whether certain legal institutions, characterizing employment law, can be construed and applied in light of the contractualism principle, specific to civil law. Essentially, we argued that certain rights, belonging to workers, i.e. the rights regulated under the law and applicable collective labour agreements, are not negotiable in light of Article 38 of the Labour Code. In addition, we argued that the dismissal legal regime is imperative, thus forming part of „the public social order”, as French scholars define this concept. Consequently, this qualification impedes, from a legal standpoint, all waiver in relation to the employers’ obligations of invoking and proving the existence of a legal and valid dismissal ground.
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Respecting equality of rights, as well as obligation of non-discrimination, assumes taking in consideration the treatment that the law provides to those to whom it applies during the period in which its regulations are in force, legal treatment that cannot be different. This paper presents a very serious problem to be debated, for the resolution of which the solution consists in the analysis of the constitutionality and/or deficiencies of the law in relation to Article 3 of Law No 76/2012 for the implementation of Law No 134/2010 on the Civil Procedure Code, in particular in the situation of the Court being subject to time limitation in a suit in respect to Article 46 (1) of Law No 10/2001 regarding the legal status of buildings abusively appropriated between 6 March 1945–22 December 1989 (by which the suspensions can last indefinitely without becoming outdated, in the regulation of the old Civil Procedure Code). Further to be verified if the principle of non-retroactivity of civil procedure law – referring to the civil action being subject to time limitation in a suit – is compatible with Article 6 of the ECHR Convention that guarantees the right to a fair trial, and if individuals who are judged under the old law are discriminated against in relation to those who are judged under the rule of the new law and to which the privilege special time limitation in a suit within 10 years applies.
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One of the forms of the forced joint ownership on shares is represented by family memories, the legal regulation consisting in Articles 1141–1142 of the Civil Code. Among the problems that rise on the legal status of these goods, a particular interest consists in the inclusion in this category of goods with a special economic value, and also the possibility to claim these memories from the one who unjustly holds them.
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In this article, the author considers that the option of the legislator for the monistic system regulating the private law relations, adopted by the new Civil Code, following which the commercial relations have become civil legal relations, is an error. It is further submitted for analysis the proposal to repeal, within the normative acts implementing the Civil Code, the provisions by which the names specific to the commercial law have been replaced by names specific to the civil law.
