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Dignity of human being is one of the most obvious and complex notions which lawyers had to study thoroughly in the last years. The complexity of dignity arises from its almost non-legal nature: dignity is a fundamental attribute of the human being or a postulate of civilization of which law should take note. It can not be conceived that dignity can be denied or that legal order ignore it. As an expression of human value, dignity tends to be confused with the notion of humanity. The presence of a principle of dignity in our legal order is undeniable; but respect for a person’s dignity can also reveal itself as a subjective right, as shown in Article 72 (1) of the Civil Code. Having in view the uncertainties arisen in the debates around dignity, the authors’ approach is an attempt to reflect, on the one hand, on the conceptual notion of dignity by the analysis of the object and of the legal nature of dignity and, on the other hand, on the functional point of view which allows to determine what dignity serves for; in other words, the functions of dignity and its practical applications. The regulation of the right to dignity in the Civil Code should be regarded as a timely novelty. -
Starting from the semantics of the term „parental authority” and from its normative background, this study raises for discussion the issue of the intention of the authors of the current Romanian Civil Code to reaffirm the „parental power”, as a legal solution for „calming down” the trend of „early emancipation” of the child. The viability of this terminological option is analyzed both in relation to the provisions of some international and internal normative acts in the field of protection of the child’s rights and in light of the Civil Code rules regulating various aspects of authority (power) within the relationships between parents and child.
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The definition of the legal guard of things and animals within Article 1377 of the Civil Code is one of the elements of novelty in our civil legislation, summarizing the most important features outlined over time in the doctrine and in the case-law. The study intends, starting from this definition, to present a selection of solutions and comments concerning the conditions of engaging the tort civil liability of the guardian, the transmission and the splitting up of the legal guard, as well as the causes which exonerate the guardian from its liability.
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At the same time with the entry into force of the Law No 286/2009 on the Criminal Code, the regime of judicial individualization of criminal sanctions has undergone significant changes both by introducing some new institutions, such as postponement of application of punishment, and by a different regulation of some old institutions, such as the suspension under supervision of execution of punishment. The author analyzes comparatively the two above-mentioned institutions of law, as well as by correlation with other provisions of the criminal law, in order to highlight their defining particularities, required to be known for a better judicial individualization of punishment.
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The practice of the constitutional jurisdiction court points out that the exercise of the constitutionality control does not lead only to the ruling of some simple solutions, by which the criticized text or texts of the law are found to be or not in compliance with the rules of the Fundamental Law. The complexity of this control, in close connection with the growing complexity of the regulations, but also with the desideratum of legal security, which must be equally considered in exercising the constitutionality control, makes that the solutions of the Constitutional Court be also expressed in different forms. This study makes an analysis of the decisions of the Constitutional Court pertaining to the category circumstantiated by the term „interpretative decisions”, in order to emphasize their importance and their role in the process of constitutionalization of law. Certainly, the achievement of constitutionality control involves, in itself, a process of interpretation and comparison of the constitutional rules and, respectively, of the infraconstitutional ones. Within the interpretative decisions, however, this comparative examination has a greater complexity, constituting an emphasis of more possible interpretations and the identification of the one which complies with the provisions of the Constitution. Such an analysis also raises for discussion the role of the Constitutional Court in the process of interpretation of the legal infraconstitutional rules, an interpretation facilitated by the provisions of the Fundamental Law, its basis and the limits of the jurisdiction of the Court.
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In the absence of some systematic concerns with significant results, the concept of legal culture still remains at the stage of exploration of its meanings. Starting with its increasing role in the configuration of the law, this study deals with defining the concept, placing it in the context of culture in general and emphasizing the constitutive elements and the main contributions: the history of law, the legal language, the dialogue by means of comparative law, the practice of justice and others. The professional legal cultures and their role occupy an important place in the spiritual concert of society. It is analyzed the legal perception of the concept of culture, the role of scientific research in the matter and the implications of globalization. An outline of the Romanian legal culture in the historical dynamics completes the author’s approach.
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In this study, the author, starting from the provision written down in Article 60 (1) c) of the Labour Code, according to which the dismissal of the pregnant employee is forbidden, as far as the employer was notified of this fact prior to the issuing of the dismissal decision, considers that the interpretation of this legal text should be performed extensively, in correlation with the provisions of Directive 92/85/EEC and, as such, the interdiction in question is also incidental, for example, in cases of dismissal of the employee in the trial period, of hiring the employee under a fixed-term contract or even if she did not notify the employer about her pregnancy condition prior to dismissal, if the failure to notify is not the consequence of bad faith of the person concerned and others.
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The institution of suspension of the individual labour contract is regulated by Articles 49–54 of the Labour Code (Law No 53/2003, republished on 18 May 2011). More or less recently, the Law No 255/2013 for the implementation of Law No 135/2010 on the Criminal Procedure Code (entered into force on 1 February 2014) and for amending and supplementing some normative acts which include criminal procedural provisions, supplemented the Labour Code (republished) by adding Article 52 (1) c1), pursuant to which the suspension of the individual labour contract occurs (on the employer’s initiative) also „in case the measure of judicial control or of judicial control on bail has been taken against the employee, under the terms of the Criminal Procedure Code, if there have been established, as his duty, obligations which prevent the performance of the labour contract, as well as in case the employee is under house arrest, and the content of the measure prevents the performance of the labour contract”. In this study, the author analyses this new and recently regulated case of suspension of the individual labour contract on the employer’s initiative.
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The author analyzes the condition of existence of common property for granting legal personality to an owners’ association in the light of the provisions included in the Law No 230/2007, starting from a solution of the judicial practice, reaching to the conclusion that the establishment of an association can not take place unless there is a common property of all members of the association.
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This study examines the regulation of the Civil Code, entered into force on 1 October 2011, in respect of non-essential clauses, standard clauses, external clauses or extrinsic and unusual clauses, in the process of conclusion of contracts. Despite the intention of simplification which the Civil Code had in view, the risks and the issues generated by these legal instruments can be imagined, even in this early stage of its application. Within this analysis, there are also reported some problems, as well as some possible solutions in this respects.
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Unlike the previous legislation, which did not contain any reference to the progressive offence, the new Criminal Code indicates the time from which the prescription period starts to run for this type of offence, without regulating, however, other aspects referring to the criminal treatment applicable to the acts falling within the legal category in question. This task lays further on case-law and doctrine, but, having regard to the numerous contradictory solutions and controversies noted, some regulations to ensure a uniform settlement of the noticed aspects shall be required, de lege ferenda.
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The study contains an analysis of the theoretical and practical aspects concerning the extraordinary judicial remedy of reopening criminal proceedings in case of trial in absence of the convicted person in the light of the new Criminal Procedure Code. First, the author presents the reasons for imposing the establishing of an effective remedy in the positive law through which the person on trial in absentia can obtain a retrial in his presence. Further on, after a review of the evolution of national legislation in the field of safeguards for retrial of the person on trial in contumacy, the author of the study emphasizes the meaning conferred by the Romanian legislator to the notion of „trial in absence”. Similarly, there are treated the conditions and the procedure of reopening the criminal proceedings, the particularities of retrial and, finally, the concurrence between the procedural mechanism of reopening criminal proceedings and other judicial remedies – the appeal and the contestation for annulment. Likewise, the author also makes some proposals de lege ferenda for the purpose of improving the regulation of the analyzed institution and of avoiding the appearance of some non-unitary practices during its application.
