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In this study, the author, emphasizing the difficulties encountered by judicial practice in the use, interpretation and application of law enforcement, clarification and completion of judgments, wishes to clarify these procedures, proposing some legislative changes to ensure clarity of incident rules. Thus, situations are presented in which, by means of a request for correction, misjudgments have been corrected, or both requests for clarification of the decision and a title appeal have been formulated, as well as doctrinal controversies regarding the right of option of the party between the procedure for completing the decision and the appeal for review. -
The study tries to identify, with jurisprudential examples, the situations in which the moral rights of the author no longer have the desired finality at the time of regulation, being used in this sense historical perspectives and comparative law perspectives. In a first part it is presented the evolution of the moral rights from the case law and doctrine to the enactment. The second section analyzes, from a jurisprudential perspective, the effectiveness of the right to respect the integrity of the work, concluding that the diversification of the modalities to create works that can be protected by copyright has exceeded the relevant regulation. A final analysis concerns the situation of exercising the right of withdrawal in the case of written works. The conclusions bring proposals to improve the mechanism of functioning of the author’s moral rights. -
In compliance with art. 24 para. 2 of Law no. 130/1996 regarding the collective bargaining agreement (republished on May 19th, 1998), the nullity of the collective bargaining agreement clauses “is ascertained by the relevant court at the instance of the interested party.” The issue reviewed by the author of the above-mentioned research is whether the active procedural legitimation under such circumstances enjoy only parties that, lawfully, conclude collective bargaining agreements (the labor union represented, where appropriate, by the union representative or employees’ representative and management, respectively) or active procedural legitimation (i.e., any employee may be qualified as plaintiff, acting, therefore, ut singuli). The author judges that judicious interpretation of purport of art. 24 para. 2 of Law no. 130/1996 bears negational value (why ut singuli employee is deprived of such right), enjoying none but requiring the representative trade union / employees’ representatives to take legal proceedings.
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Searching for a matter of convergence between the specialties of each author, in a mutuus consensus sine qua non, the authors finally stopped on the ancient in dubio pro reo driven by a bunch of original ideas, which they considered worth to be presented. Naturally, subsequently, they had both sympathizers and critics, each category having its well-determined role in the evolution of the Law science. With an age-old existence, the authors consider that in dubio pro reo has managed to pass the test of time in the light of the splendid “justness” it incorporates in its content. Exactly from this perspective, the authors intend to emphasize its luxuriant color fan, extending to the whole “world” of Law, releasing it from the strict limitation of criminal area. -
Formalism in Roman law prevails in all its branches, starting with the court procedure and ending in the interpersonal relations. Its role was to ensure the validity of consent and the procurement of evidence. The legal act in the Roman law was practically non-existent. The Roman legal documents received the proper form after the practice, according to the existing customs. It was the custom that dictated the form which any instrument meant to produce concrete legal effects, but also future legal effects, had to have. The legal report was formed through gestures and religious formalities, which gave rise to principles that ensured the optimal functioning of the legal system related to the context of that age. The updating of the formalism was required when there was an obstacle in achieving the goals of public and private order. The need to change the private law emphasized by the subjects of a legal relation and imposed by the economic evolution of trade has transformed a formalism that had its origin in religion, into a formalism dictated by current practices. In the current law, the civil legal act is born by the express manifestation of the will of the subjects of law, a will that must take a certain form. The observance of the form is ensured by the procedural formalism imposed by the legal norms in force. The present study analyzes the formalism of the Roman law and its imprint in the formation of the legal act from the positive law
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The mechanism of constitutional review plays an important role in the development of the normative system. It prevents the Parliament and the Government to adopt unconstitutional laws or ordinances and, at the same time, it stimulates them to edict normative regulations in accordance with the provisions of the Constitution. In what concerns the legislative omissions, the Constitutional Court of Romania is not competent to modify or to supplement the provisions under review, following the classical theory of ‘negative legislator’. Despite of a vast case-law that reflects this rule of conduct, a new and more flexible approach appears to be more effective in correcting the constitutional deficiencies. Pointing out the lack of constitutionality due to certain legislative omissions is what brings the Constitutional Court of Romania closer to the other European jurisdictions of constitutional review. -
Rome was an example of universal state becoming the strongest state of the European antiquity, remaining however in the collective memory as a mechanism that worked perfectly, determined by the Roman law system that distinguished itself by the high degree of abstraction, by the lapidary logical constructions, as well as by a perfect legislative technique. It is unanimously acknowledged that the Roman law has not remained a mere historical document, continuing to directly influence subsequent regulatory systems, proving both its viability and its living spirit. This has lead to the suggestive assertion in the specialized doctrine that „although the kingdom of the Roman people has perished, the kingdom of Roman law still lives”1, and at a brief analysis it can be established that the Roman juridical way of thinking is present in the system of the European modern legislative construction.
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This article aims to analyze weight of the assessment report in customizing punishment. The author brings forward a number of theoretical, introductory approaches, which positions the reader within the relevant framework in understanding the tackled topic, including a brief history of customizing punishment and the assessment report, but also a number of legal issues.
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Curtea Constituțională a fost sesizată cu excepția de neconstituționalitate ridicată de un număr mare de funcționari publici trimiși în judecată pentru săvârșirea infracțiunii de abuz în serviciu, care a fost reglementată de art. 246 din Codul penal din 19691, având conținutul „Fapta funcționarului public, care, în exercițiul atribuțiilor de serviciu, cu știință, nu îndeplinește un act ori îl îndeplinește în mod defectuos și prin aceasta cauzează o vătămare intereselor legale ale unei persoane se pedepsește cu închisoare de la 6 luni la 3 ani”, precum și de art. 297 alin. (1) din Codul penal în vigoare, adoptat în anul 2009, potrivit căruia „Fapta funcționarului public care, în exercitarea atribuțiilor de serviciu, nu îndeplinește un act sau îl îndeplinește în mod defectuos și prin aceasta cauzează o pagubă ori o vătămare a drepturilor sau intereselor legitime ale unei persoane fizice sau ale unei persoane juridice se pedepsește cu închisoare de la 2 la 7 ani și interzicerea exercitării dreptului de a ocupa o funcție publică.” -
In the Draft law drawn up by the Ministry of Justice, the offence of abuse of office provided by Article 297 (1) of the Criminal Code is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be an offence of abuse of office, regardless of its gravity and of its consequences, because its legal content is not circumscribed. In order for the offence of abuse of office not to be confused with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the deed must be committed for material interests, and the damage must cause particular serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed. -
This study concerns the manner in which the abuse of office provided by Article 297 (1) of the Criminal Code is presented in the Draft law drawn up by the Ministry of Justice, appreciating that the offence is defined simplistically and formally, without clarity, precision and predictability. According to the Draft law, any act of breach of the law, of a Government Ordinance or of a Government Emergency Ordinance by a civil servant is considered to be offence of abuse of service, regardless of its severity and consequences, because the legal content thereof is not circumscribed. In order not to confuse the offence of abuse of service with the other forms of civil, disciplinary, administrative, fiscal, material or contraventional legal liability, we have introduced in its definition the condition that the act be committed for material interests, and that the damage cause particularly serious consequences. In this way, the abuses in the interpretation and application of Article 297 (1) of the Criminal Code will be completely removed.
