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It has become recently effective Law no. 40/2011 amending and supplementing Law no. 53/2003 (the current Romanian Labour Code), wideranging regulation bringing the Labor Code of 2003 more than 100 amendments, supplements and repeals forward. Within the two studies’ pack - published independently, though under the same title - the two authors review but 16 of these amendments/supplements/ repeals which require, necessarily, a legal review in order to clarify the meaning and effect of the incidence of some purports, so as to avoid controversy and debate in case law and doctrine, likely to cause difficulties and confusion in the practical implementation of relevant purports. Finally, the authors advance a more general conclusion in terms of Law no. 40/2011. -
This article aims to bring forward the essential regulations covered by Law no. 52/2011 on the exercise of occasional activities carried out by day-laborers. In this respect, we shall focus on the legal nature of the agreement concluded between the day-laborer and the beneficiary – i.e. civil service agreement - on its distinctive features, but also on the rights and obligations of the parties.
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Meeting the practical needs and views expressed in recent doctrine of constitutional law, amendments to the Code of criminal procedure under Law no. 177/2010 stand for an important step in streamlining the justice process in Romania and its harmonization with EU standards. In this article, the authors review amendments to the Code of Criminal Procedure under Law no. 177/2010, in terms of effects arising from repeal of paragraph 6 of Art. 303 C. Cr. Pr., wording stipulating mandatory suspension of trial proceedings in the case of referral to the Constitutional Court to settle the constitutional challenge. Simultaneously, in this article there are also set forth and considered issues of novelty arising from the introduction within the two procedure codes of a new review case, aiming at restoring legality, just for the cases where the final decision in a case was grounded upon a statutory provision subsequently deemed unconstitutional.
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The author summarizes the contractual solidarity principle and its overall consequences. At the core of contractual solidarity lies the requirement of reconciling the contractual interests of the parties. Compliance with this requirement stems from the relationship of solidarity between the parties in the context of contract performance and is intended to govern the being and its execution, including the consequences of breaching this tie, should either party be in default. Contract performance supposes the existence and action of solidarity relationship between the Contracting Parties, each laying under the obligation to accomplish the contractual interests of the other Party. Effective and beneficial accomplishment of said objective is ensured by complying the cooperation and coherence duties, which originate and argument their existence in strict relationship of contractual solidarity. The requirement to reconcile the interests of the parties is valid also if difficulties arise for either party during the contract performance. To overcome these difficulties, the parties are required to comply with two duties: the duty of tolerance and the duty of contract adjustment. Finally, the author reveals that the requirement above is meant to govern also consequences arisen from the breach of solidarity ties, in terms of contract unlawful non-performance. Thus, in selecting and implementing remedies and powers it may appeal to, the creditor is bound to comply with the internal consistency of the contract and the duty of fair proportionality or measures; the aim of these duties is the taking-up by the creditor of behaviors consistent with the purpose of the privilege chosen, without contradictions and disproportions in terms of the seriousness of unlawful contract nonperformance by the debtor.The author concludes that the constituent elements of contractual solidarity, on account of their action and effects, are likely to ensure proper performance of duties, to save contracts existence and, ultimately, to accomplish the interests of contracting parties, the purpose of any contractual tie.
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Formal validity of an arbitration agreement is closely linked to the consent of the parties to arbitration. The requirement of arbitration agreement in written form is intended to ensure that the parties actually agreed on resolving the dispute through arbitration. Therefore, matters related to the performance of formal requirements of arbitration agreement and the necessary approval for arbitration, expressed under the arbitration agreement, are often interrelated and jointly approached. In accordance with the Convention of New-York (1958), the arbitration agreement enforcement, and of any other decision, requires an arbitration agreement concluded in writing. The formal requirements do not necessarily promote legal certainty, frequently being sources of circumstantial disputes. For these reasons, the requirement of arbitration agreement in written form, in most national laws and under the Convention in New York, was more liberally construed. In any case, the requirements of the arbitration agreement to be concluded in written form should be construed more dynamically, in the light of modern means of communication.
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Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure provides that review of a final and binding decision in the Appellate Court or non-appealed and of a ruling passed by a court of last resort upon merits called forth may be requested „whether, following the rendering of the decision, a court order which grounded the decision under review claimed was abated or amended.” The author, in light of the practice of the European Court of Human Rights, considers that the purport should be interpreted narrowly. Accordingly, the scope of Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure may cover uncertified court orders exclusively (referred to as binding) because only these can be amended / abated under appeal or recourse, and not judgments passed within right of review procedures such as review or appeal for annulment, on account of complying with the principle of legal certainty.
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In Romania there is a special regulation (Government Ordinance no. 79/ 2003) on the control and recovery of Community funds and related co-financing funds misused. In the study hereby it is undertaken a presentation and an analysis on the penalty-related legal liability covered by this particular regulation.
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In this study - which covers a number of proper approaches on the phenomenon of „political migration” within the Romanian Parliament – the author examines beforehand the role of political groups in establishing the political configuration of parliament, after which she analyzes at large the political migration phenomenon, including regulatory matters (constitutional and statutory), as well as the case law of the Constitutional Court in the matter. Finally, in the conclusions, the author sets forth some of her own views on the phenomenon of „political migration” within the Romanian Parliament, in the context of current political and legal scene of the Romanian State.
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The study under the heading above reviews the relationship between the European Parliament and national parliaments of the 27 EU Member States (including, where appropriate their regional parliaments) in the light of provisions brought under the Treaty of Lisbon (effective since December 1st, 2009).
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In this study the author examines the legal institution of the politics-related conviction from various points of view: legal nature, regulatory manner, effects, similarities and differences to the causes removing criminal liability or consequences of conviction.
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The criminal trial can be defined as the activity regulated by law, carried out by the criminal judicial bodies, so that persons having committed criminal offenses are brought to account for criminal liability and criminal penalties are imposed. Criminal trial aims to account for criminal liability persons who have committed criminal offences (i.e. achievement of the conflict criminal legal relationship), imposition of criminal penalties and their enforcement. The criminal trial phase is a division thereof, in which operate a particular category of judicial bodies in carrying out tasks that fall within their procedural position (to seek, to judge or to execute the decision), and following its exhaustion a particular solution on the criminal case may be rendered. The author reveals that, under the current Romanian legislation, the criminal trial covers three phases: prosecution, adjudication and enforcement of judgments (according to the Romanian doctrine, although the Code of Criminal Procedure in force entitles „Enforcement of Criminal Judgments” Title III of the Special Part). Under the new Code of criminal procedure rules, the criminal trial covers four phases: prosecution, the preliminary chamber, adjudication and enforcement of criminal judgments.
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The paper deals with the correct interpretation of statutory provisions governing the written reproduction of audio or video conversations and communications intercepted and recorded, including those conducted in other language than Romanian. The author argues that it is imperative that legal practice accounts for matters dealt with in order to avoid abuses in this area, resulting in deprivation of effects of material drafted in breach of the law. There are also highlighted the main changes operated in this area by the new Code of Criminal Procedure.
