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Recently (re)invented (2005) by the Italian and North American law schools, quickly developed and initially submitted as a „science a little bizarre” (J.-B. Auby, 2007), the global administrative law is one of the legal results of the phenomenon of globalization. Introducing an increasing porosity of the borders, and also a considerable development of the functions of the non-state actors, increasingly diverse and numerous, globalization creates new phenomena of adjustment, involved in the development of transparency and that contribute to the accountability of each intervener on the supranational stage. This is the background of the emergence of a global administrative law, based on a new and systematic analysis of the supra- and trans- national phenomena, mostly heteroclite in appearance. In only a decade, around these precepts, an authentic school of thought has been crystallized, developed especially in common law doctrine, less exploited in French doctrine, and its presence finding its beginning in the Romanian doctrine by this study. -
The former regulation – the Law No 85/2006 – did not define the principles underlying the application of the insolvency procedures, these being identified, explained and developed by the legal doctrine. The 13 principles provided by the Law No 85/2014 are applicable both to the procedures for preventing insolvency and to the insolvency procedures. The principles are applied by the bodies involved in the procedure, in the absence of some express provisions, which regulate some specific situation, or are used for the interpretation of an unclear text. Defining the principles is extremely important, the practice following to prove their usefulness, where the regulation is lacking or is unclear. This study aims to analyze comparatively the principles stated by the legal doctrine in the ambiance of the provisions of the Law No 85/2006, as well as the principles provided by Article 4 of Law No 85/2014, with special regard to the principle of maximizing the degree of realisation of assets and of recovery of claims.
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In this study, the author makes an analysis – partly critical – of the provisions of Article 2358 (1) and (2) of the new Romanian Civil Code referring to the assignment of the mortgage and of Article 2427 of the same Code regarding the change in rank of the mortgage. Although the author appreciates, in general, as positive the regulations of the new Romanian Civil Code related to the assignment of mortgage and to the change in its rank, separately from the claim which it guarantees, nevertheless, in the conclusion there are retained a number of shortcomings in the drafting of the mentioned texts, for which reason several de lege ferenda proposals are made.
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The author, by accurately examining Book IV of the new Romanian Civil Code (regarding the inheritance and the liberalities), entered into force on 1 October 2011, notes that, as a rule, like in the previous Civil Code of 1864, there are some more important institutions of successoral law which, in his opinion, may be considered controversial (questionable), inopportune or unclear such as, for example: – the notions of „heir”; „successor”; „inheritor”; – whether the status of heir is affected or not by disinheritance or by the waiver of inheritance; – whether the contractual appointment and the preciput clause are two separate legal institutions or not; – whether the successoral reserve has an individual or collective nature; – whether the prohibition of the (mutual) consummated will is opportune or not; – whether the successoral option is always a disposition act or not; – the inopportunity of the multiple vocation to inheritance; – the questionable nature of the utility of the „seizin”.
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In this study the authors examine, rather exhaustively, the problems of regulating the submission of the written notes by the parties, namely: both the „common law” in the matter [Article 244 (2) and Article 394 (2) of the new (Romanian) Civil Procedure Code] and a series of special provisions in the field, included in the same Code [Article 244 (3); Article 244 (4); Article 222 (2); Article 383], and finally, after examining the legal consequences of the non-compliance with the mentioned rules, they formulate a series of interesting conclusions with respect to the topic discussed.
