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In this study the author, after making certain considerations on the concepts of human rights and world order, in the context of globalization, as well as of the trends of globalization of law, points out to the necessity to undertake some urgent actions in order to proclaim, establish and, mostly, guarantee the human rights and fundamental freedoms worldwide. In the author’s opinion these legal rules which have the consent of all States would represent, along with solving the contradictions between the international economic system with a quasi-global organization and the prevailing political structure of the human society which is at state level, a starting point in achieving a real world order, in compliance with the current stage of the socio-historical movement and with the challenges of the 21st century. -
In this study, the author analyzes the practical implications of the amendments brought to the Civil Procedure Code by the Government Emergency Ordinance No 1/2016, following the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code by the Decision of the Constitutional Court No 895/2015. After a brief historical presentation of the legislative events that have led to the current situation regarding the approval of enforcement, the author, by examining the effects of the Decision of the Constitutional Court No 895/2015 and of the Government Emergency Ordinance No 1/2016, identifies the categories of situations that may arise in the practice of enforcement.
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The New Fiscal Procedure Code introduces a novelty, the penalty for non-declaring. This penalty is a specific sanction that amerces a certain behaviour of a taxpayer consisting in non-declaring or wrongfully declaring main tax obligations. The penalty has a significant practical impact in case of both administrative irregularity and criminal irregularity. The nature of this penalty, the legal conditions of occurrence and the procedure of infliction cause some interrogations including an eventual exam of constitutionality.
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The author analyzes the territorial jurisdiction of the court to settle the actions for annulment of the decisions of invalidation or for amendment of the settlement decisions issued by the National Commission for Real Estate Settlement pursuant to the Law No 165/2013, appreciating that it lies with the civil section of the Bucharest Tribunal, as the court in whose district it is located the headquarters of the entity issuing the contested act. The term „entity” within Article 35 (1) must be understood in relation to the provisions of Article 3 points 4 and 5 of the Law No 165/2013, which enumerates the entities involved in the restitution procedure in various stages thereof, as well as the document issued by these entities.
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The judicial practice in the matter of representation, including in that of the Supreme Court, reveals difficulties in interpreting Article 84 (1) of the Civil Procedure Code. A poor interpretation thereof, by ignoring ratio legis, creates a gap for the illegal practice of the specialized legal professions. In the same context, it is necessary to distinguish between the plea of lack of evidence of the quality of representative and that of illegal representation, and the latter must be preceded by the plea on the nullity of the contract from which the judicial mandate arises.
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In this article, the author intends to analyze, by comparison, the terms domicile and residence, as they are used by the constituent legislator in Article 27 of the Constitution, as well as by the Civil Code and the Criminal Code in force. The author points out that the terms of domicile and residence, used in the civil legislation as attributes of identification of the natural person, are different from those covered by the doctrine of criminal law and by that of constitutional law, in the light of the protection of the inviolability of the home of a person, as a legal instrument for the respect of the freedom and private life of persons. The author demonstrates that the purpose of establishing the inviolability of the domicile by constitutional rule is to ensure the respect for the private life of individuals. Particular attention is given to the problems of constitutionalisation of the inviolability of the domicile, as well as of the European protection of the right of every person to the inviolability of their own homes. The author also presents the constitutional guarantees of the inviolability of the domicile and of the residence and how they are materialized by the criminal procedure rules.
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The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional rules. Guaranteeing the respect for this principle, being essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the normative acts adopted, in content and form, the constitutional rules. The entry into force of the new criminal codes has generated a significant case law of the Constitutional Court concerning the verification of constitutionality of some regulations of the Criminal Code and of the Criminal Procedure Code. Through this study we intend to analyze the following more important aspects: a) how the constitutional principles and values have been materialized in some criminal rules and criminal processual rules of the new codes; b) the effects of the decisions of the Constitutional Court in the process of constitutionalisation of the criminal law; c) applying the decisions of the Constitutional Court in the judicial activity, especially those which have established the unconstitutionality of some regulations in the new criminal codes.
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The author discusses the close correlation between the regulation of competition and the regulation on the protection of the consumers’ interests, involving some difficulties in distinguishing between them. That is why there is the tendency that some regulations protect both the ensuring of competition and the consumers’ interests, this ambivalence emphasizing the importance that is given in the contemporary society to the consumption law, which justifies a whole series of derogations from the principle of freedom of trade. Discussing this issue involves an examination of both the regulation of the contractual obligations and the regulation of the commercial practices. The consumer who wants to purchase a product usually has a double handicap: knows too little the characteristics of the product that is being offered and, as such, is often in the position to sign a previously elaborated contract which he can not control or understand. So it was necessary the intervention of the legislator, imposing the obligation to inform every consumer, being prohibited to stipulate unfair terms. As far as the regulation of the commercial practices is concerned, the same conclusion is drawn, namely that a consumer is exposed to a double risk: that of being deceived about the nature or the characteristics of the goods which it acquires, as well as that of being incited, by fictitious or illusory promises, to buy or to resort to the supply of a service. Consequently, the legislator has stepped in by elaborating regulations both in relation to the illegal commercial practices and with regard to the commercial publicity. The author of this article presents all these aspects having in view the scale of the legal situations that can arise and the required solutions.
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Medical malpractice is a subject that lately generates more and more and increasingly heated controversies. On the one hand, the patients are more and more dissatisfied with the medical services and the way they are cared for, the conditions existing in the hospital units, the quality itself of the medical act, and on the other hand, the doctors, besides the fact that they carry on their activity in poor conditions, in underfunded and understaffed hospital units, feel more and more harassed and fear that they can at any time be brought before the prosecutors as possible „criminals”. Within this article we intend to approach a quite delicate topic, namely the settlement of malpractice conflicts. Why is this a difficult problem? Why malpractice conflicts are more „delicate”? Why is it harder to solve such a conflict, as compared to a different kind of conflict? The answer is simple and widely accepted. The doctor-patient relationship is a special one. The doctorpatient relationship involves more than rights and obligations and the exercise thereof. This paper aims to draw attention and highlight the benefits of the settlement of the malpractice conflicts by using alternative methods. The results of the study can be used in the future both as a source for a possible future expansion of this study, but also as a starting point for a possible de lege ferenda amendment of the current legislation.
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In the case law of the Strasbourg Court, in the cases in which Romania has been convicted for the use of undercover investigators, it has been retained the violation of the right to a fair trial, not by the importance given to the statements of the investigators, the protected witnesses or collaborators, but by the omission of the judge examining the merits to take actual steps to hear them in the trial phase. These obligations, which are directly applicable in the Romanian law system, are established, on the one hand, so that the defendant and any other party can address questions to the witnesses, debate and contest their allegations, and, on the other hand, so that the judge can hear directly the depositions of the investigators or collaborators. Despite these clear and common-sense rules arising from the mandatory case law of the European Court, the current Criminal Procedure Code has provided, in Article 103 (3), that the statements of the investigators, collaborators and protected witnesses can not contribute decisively to proving crimes, thus the interdiction is valid whether they have been heard or not by the law court.
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Our paper suggests exploitation of interrogations such as rationality is a concept: primitive, as is customary? tautological, „is what we all know it”? monolithic, homogeneous substance? immutable, not counting history, man, practice and does not support self-critical approach? operational tool to be opposed to uncertainty assessment values? mystifying, justifying postfactum a social action animated by various motives? illusory, utopian even, because every time intelligibility is surpassed by reality? The conclusions of our research reveals that juridical rationality should not ignore the experience of rationality but no specific legal phenomenon. It is multidimensional and confirms its status only if it is based on logic and the history and practice of integrated social experience, procurement of modern science, gives satisfaction to the human condition this historic time, does not ignore the contradictions within juridical life, aspiration for interrogation, foresight and creativity.
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The impact assessment of transposing Directive 2008/99/EC on the protection of the environment through criminal law into the domestic laws of the 28 Member States of EU and of the related experiences legitimately raises the question: is the expansion of harmonization or the promotion of new instruments of application required for the achievement of the pursued objective in the future? This study is the answer offered by its signatory within The Second AIDP World Conference held in Bucharest, in the period 18–20 May 2016. The article establishes, in essence, the necessity to continue the efforts in this matter, on the one hand, by adequate measures of simplification and harmonization of the relevant regulations within the national laws, and, on the other hand, by continuing the concerns of consolidation, at EU level, of imposing the uniformisation and adoption of the instruments of protection of the environment through the criminal law.
