-
If in ancient times it was often confounded with legal science and constituted a genuine source of law, gradually, case-law transformed into a form of explanation, addition, and elimination of obscurity of the legal text, by the judge, in the process of interpreting and enforcing the law. At the same time, its relations to the doctrine have also evolved, the latter being called upon today to decode case-law rules, assuring their clarity and complete expression of their meanings, from the „inside” of the process of creating law. Case-law phenomenon is an object of analysis for the legal science, in terms of external factors that configure and influence it. The case-law revival noticed partially and specifically after 1989 also in Romania, given the transition, is expected to fully manifest itself in the following period, just after the end of the legislative reform, realized by the adoption and entering into force of the new codes. -
Foarte mulți autori moderni întrebuințează în lucrările lor expresia jus ad rem pentru a desemna dreptul de creanță, opunându-l astfel dreptului real jus in re. Această expresie a avut o influență considerabilă în evoluarea instituțiilor juridice. Scopul nostru este de a examina aici cum au fost aduși autorii să numească dreptul de creanță jus ad rem, precum și cele două mai importante consecințe ale acestui fel de a concepe natura dreptului de creanță: dispariția obligației chirographare și transformarea efectelor vânzărei. -
The climate dispute, developed explosively in the last decade, has had a first experience also at the level of EU law through People’s Climate Case (2018) in which 10 families and a civic association have brought an action before the EU Tribunal against the European Parliament and the European Commission for the insufficiency of the objectives assumed in the matter of climate changes. It was required the cancellation of several European Union legislative texts in the clime package and a compensation for the prejudice claimed to be incurred in this context. By the Ordinance of 8 May 2019, the action was dismissed as inadmissible, as the conditions of Article 263 (4) TFEU were not met, whereas there had been challenged legislative texts which did not concern and did not affect the applicants individually. The case law thus created leads to conclusions notable for the climate justice. -
In this article the author shows that justice is one of the pillars of the state of law, which ensures the implementation of the principle of the rule of law, the foundation on which this type of state is built and developed. Likewise, the author makes brief considerations on the notion of justice, as well as on its administration, especially on the independence of judges and on the impartiality of justice. The analysis takes into account both the European standard and the Romanian law in the matter. -
1.- La signification de la planification hydrologique dans la Directive Cadre sur l’Eau. 2.- Les retards significatifs des États dans l’application de la Directive. 3.- Les districts hydrographiques comme référence des plans hydrologiques. 4.Les autorités administratives responsables des districts hydrographiques. 5.- Les procédures d’élaboration des plans hydrologiques. 6.- Le contenu des plans hydrologiques. 7.- Valeur et effets des plans hydrologiques. 8.- Le contrôle judiciaire des plans hydrologiques. Bibliographie. -
In this study, the author presents a constitutional reform on the Hungarian Constitutional Court, in the sense of extending its substantive jurisdiction, which entered into force at the beginning of the year 2012. Indeed, the mentioned reform preserves the classic system of the constitutional courts, but it receives an additional jurisdiction, i.e.: after a judgment has become final, either party may address to the Constitutional Court if the decision made is contrary to a fundamental right established by the Constitution. This way, concludes the author, the Constitutional Court is elevated at the level of a centre of the state power, an independent branch thereof which, in a certain sense, conducts a control on all branches of the state power. -
This paper presents an analysis of the legality of the decisions made by the administrations of the places of detainment to forbid to the persons deprived of their freedom to receive and acquire different categories of foods, decisions based on safety reasons regarding the detainment, as per Article 148 (6) in the Regulation of Enforcement of Law No 254/2013, as well as the extent to which these decisions violate or not the right to receive and buy goods according to Article 70 from the Law No 254/2013. The paper summarizes the currents of opinion formed both in the practice of the judges of surveillance of deprivation of liberty, as well in the courts by displaying certain judicial situations regarding the nature of some foods which are not particularly regulated in Annex 1, Title IV of the Regulation, situations which not even at present have received unitary unification in relation to the character of the actions taken by the prison as a restraint or a reduction of the right to receive and buy goods. The conclusions of this endeavour offer a possible solution to this problem of great actuality in practice starting from the assumption that reducing the exercise of the right to receive and buy goods is legal in the extent to which the principles of legality, equity, the realization of goals and proportionality are abided.
-
-
The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms.
-
Arbitrability is the entry point of arbitration: it identifies those cases which can be settled by way of arbitration and in which the parties can exclude court procedures and state courts. This article examines, in light of the applicable international treaties, the choice-of-law rule that determines the law applicable to arbitrability and, in order to establish this choice-of-law rule, analyzes the purpose of arbitrability. It argues that arbitrability should be conceived as a question of competence and not as a question emerging from public policy. It follows from this thesis that the application of the law of the forum (lex fori), the dominant approach in international treaty law, is not justified and the exclusion of arbitrability is warranted only in cases which belong to the exclusive competence of the courts of or raise real problems of public policy for the forum. -
In this study, the author analyzes the scope of Regulation (EC) no. 593/ 2008 of the European Parliament and of the Council on the law applicable to contractual obligations (also called “Rome I”) in individual contracts of employment having an extraneity element, taking into account that the provisions of this regulation are mandatory applicable in Romania, with a view to Art. 148 paragraph 2 of the Constitution and Art. 2640 of the Romanian Civil Code (Law no. 287/2009 republished). -
The globalization phenomenon is inevitably leading to a development, without precedent, of the international trade, in general, and of the freight, a situation that emphasizes the current complex issue of defining the law applicable to the international contract of maritime freight, and also the enhancement of afforts for the elaboration of an uniform frame applicable to international trade contracts in general, by the specialized institutions – UNCITRAL, UNIDROIT, the Hague Conference on international private law; the existence of an uniform law proves to be the best solution in order to avoid difficult issues caused by the conflict of laws, process which is constantly developing without achieving the elaboration of an universal interstate convention, that could unify the conflict solutions applicable to all international trading contracts, and consequently, at least for the time being, the conflict of laws is not completely eliminated. From this perspective, the law applicable to the international charter party has been analyzed according to the European Committee Regulation no. 593/ 2008 of the Europea Parliament and Council regarding the law applicable on contractual obligations – Rome I, and according to the inter-American Convention on the law applicable on international contracts (CIDIP Convention).
