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The legislation on the matter of stamp duties, although it should be free of problems of interpretation, is no exception to the fact that the interpretation is the one that generates problems in the application of legal norms. The related controversies reveal that the current regulation inclusive is far from the desideratum to maintain a fair balance between the public interest to collect these budgetary resources in the quantum envisaged by the legislator and the interest of the litigant not to have the relevant legislation interpreted to his detriment. There are difficulties concerning the determination in practice of the actions which the legislator regulates generically by formulating „cash assessable actions and claims”, a phrase used in Article 3 (1) of the Government Emergency Ordinance No 80/2013. The same situation we encounter in the case of applications determined by the phrase „applications not assessable in cash”, phrase used in Article 27 of the Government Emergency Ordinance No 80/2013, with which the legislator intends to cover all the categories of applications not regulated in the previous texts. Other difficulties, revealed inclusively by the decisions of the High Court of Cassation and Justice, concern the interpretation of the phrase „different finality”, used in Article 34 (1) of the Government Emergency Ordinance No 80/2013, for the situation of the actions with multiple claims. Since these three phrases evoke genuine principles underlying the manner of regulation used by the legislator in the matter, by the controversies reviewed, the study argues either the necessity of the minimum approach of defining the terms contained therein by the author of the normative act, or that of rewriting it pursuant to an inventory of the objects of the claims encountered in the judicial practice. This inventory is easy to obtain by the legislator from the courts, with the necessity to update it, after taking over in the normative act of domain, either by the regulations that generate new categories of applications addressed to the justice, or by amending accordingly the normative act having as object exclusively the stamp duty fees. However, this regulatory manner is used by the legislator in the legislation by which it establishes tax obligations, duties and taxes respectively. It is easy to imagine the implications of some norms susceptible to interpretation in this latter matter, which, in essence, has the same nature as the one in question. -
The present study aims at analyzing the new legal provisions regarding the country’s minimum gross salary guaranteed in payment. Recently, through a series of normative acts, the legislator renounced the old approach to the regulation of the minimum gross national salary guaranteed in payment, setting minimum differentiated salaries for certain categories of employees. Thus, employees with higher education and those with a minimum length of work will have a higher level of salary compared to the minimum gross salary guaranteed in payment. Moreover, the legislator set a higher threshold for the minimum wage in the construction sector, which benefits the employees of this sector of activity. This change of optics requires an analysis of its legality and timeliness. In order to outline the conclusions, there will be analyzed the internal sources, the provisions of ILO Convention No 131/1970 concerning Minimum wage fixing, with special reference to developing countries, and similar provisions in the field of minimum wage in different states.
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The objective of this study is to nuance practical problems that may arise in the application of the provisions of the Civil Code in matters of the right of preference to tenancy. In the absence of some exhaustive legal norms (Article 1828 of the Civil Code making reference to the provisions of the right of preemption that must be properly applied), we consider that it is inevitable that in the hypothesis of a litigation there are no divergent interpretations which have as source unclear rules that govern this matter. We have focused, primarily, on identifying the compatibility of the provisions of the preemption right with that of the right of preference, being essential the correct interpretation of the phrase „properly”. We later pointed out the holders of this right and the conditions that must be met in order for this to may be exercised. More specifically, we have leaned on the analysis of a condition whose limits are not clearly laid down by the law: what does it mean the obligativity for the tenant to perform the obligations on the basis of the previous rental and whether the notion of non-performance also includes the delay in performing the obligations. In addition, we have analyzed the nature and moment from which the exercise of the right begins to run, considering that particular issues are raised by the notification which the lessor is obliged to send to the lessee in view of exercising the right of preference, since the moment of communication thereof is also the one from which the term of exercise of the right begins to run. We have identified two judgments expressing two fundamentally different views referring to what the content of the notification must be, analyzing the arguments of both courts and exposing our own point of view. Last but not least, in terms of the differences between the contract of sale and the one of tenancy, our approach has continued by pointing out how to exercise the right of preference, respectively of the amount of rent that must be recorded and the moment when the recording must be made – which, from our point of view, differs from those in the matter of preemption. We have concluded with the moment when the new rental agreement was signed, along with the effects it produces. We hope that this study will prove useful to be to practitioners in particular, as we have tried to answer questions and provide explanations where the legislation and doctrine have not done it so far, although the questions have already arisen in practice, imperiously requiring an answer. -
With Marice Hauriou, in France, public law goes into the modern age. By his style, by the number and complexity of the themes he approached as well as by their exhaustiveness, this founding father of French administrative law – as we know it today – leaves behind a legal literature that, up to him, has only been able to provide sterile and purely descriptive commentaries of normative acts, modest works belonging to those that the modern history of public law labelled as of glossary or repertory writers. Hauriou is the one who, for the first time in the history of French administrative law, confers it the terminological and ideological substance for which it is highly appreciated by public law specialists today. Among the major themes that Professor Hauriou has approached in his work, the following are still outstanding, due to the accuracy and relevance of the analyses surrounding them, such as: – the administrative regime and the administrative function; – the institution and the institutional phenomenon; – the legal persons of public law, the public establishments and the establishments of public utility; – the public administration; – the public interest and the administrative management; – the public service; – the civil service and the civil servant; – the public property and the public domain; – the self-executing decisions or the unilateral administrative act; the administrative contract; – the administrative litigations; – the acts of government; – the discretionary power of the public administration; – the patrimonial liability for the public administration’s illicit acts; – the administrative police. Most of these themes have been systematically addressed by Hauriou, either by reference to the ideological foundation represented by the „public power”, or in relation to the notion of corporate institution, or in connection with the fact that administrative law groups rules with a derogatory nature from the rules of civil law, and legal persons under public law called upon to carry out the administrative function of the State are endowed with exorbitant prerogatives, the exercice of their duties being likely to result in a restriction of the freedom or the property of individuals. Surely, this risk – far from being totally eliminated – can be diminished, but only when individuals have effective tools to fight against abuses by executive authorities. According to Hauriou, an important place among these instruments is occupied by the so-called judicial review on abuse of power, a type of judicial action aiming at the annulment of unlawful administrative acts. -
The article presents the continued offence from the perspective of the Decision No 368/2017 of C.C.R., presenting the history of the concept of continued offence and the elements characterizing this concept from the perspective of E.C.H.R. After an analysis of the opinions expressed, referring to the change in the legal classification of the continued offence, it is concluded that the change of the legal classification is required when one or more material acts were wrongfully included in the legal unit, although these constitute distinct offences, which are in concurrence, in intermediate plurality or in a state of recidivism with material acts that constitute continued offence. In case that, for one or more material acts, there is a case that prevents the exercise of criminal action, we consider that it is not necessary to change the legal classification, being sufficient that, by a minute, to order the acquittal or the termination of the criminal trial, and for the other material acts that continue to be a continued offence to have a solution of conviction, the postponement of application of punishment or renunciation to apply the punishment.
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In the context of the amendments operated on the Administrative Disputes Law No 554/2004 by the Law No 212/2018, the author proposes to analyse the time limits in which the prior complaint can be filed and to analyze each of them separately, by grouping them according to the subject of the prior complaint and to the object of the prior complaint. The author makes the transition from the time limits imposed on the addressees of the administrative act to the time limits imposed on third parties, in the situation of the typical and assimilated individual administrative act, by investigating the length of the time limit, the moment from which it starts, the legal nature or the applicable legal regime and the sanction applied in case of non-compliance with these time limits. The main time limits within which the prior complaint can be filed are analyzed, special attention being given to cases where the prior complaint is not mandatory. Finally, the author emphasizes the importance of applying these time limits in just measure so that the prior complaint procedure does not become an obstacle, not related to the concrete situation, in the way of access to justice of the alleged injured party, nor it becomes an instrument of abuse.
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In this article, the author proposes to analyze the place and role of the constitutional law in the legal system, starting from the object of regulation of its norms: establishing the modalities of organization and functioning of the state and, within these, the forms of exercising and transmission of the powers through democratic electoral procedures, as well as of the fundamental rights and freedoms of citizens. The constitutional law has received in doctrine a wide range of definitions in the doctrine, all authors emphasizing the quality of constitutional law to underlie the structuring of the national legal order, in the sense that all branches of law reside, at the level of general principles, in the constitutional law. The author states that the constitutional law norms are meant to protect and capitalize the most general interests of the society and of the state, as well as the fundamental values of a politically organized human community geographically located on a determined territory. Due to its structural role in the organization and functioning of the system of law, constitutional law sets guidelines for the other branches of law, takes over from these norms to which it is conferred the legal force of a constitutional norm and thus contributes to the shaping of a pyramidal hierarchy of norms of law depending on their legal force. At the bottom of the pyramid it is placed the Constitution, to which all the other norms of law are subordinated. The author also deals with the constitutionalization of the law, a process that results from the extension of the constitutional regulation of some social relations reserved by tradition to other branches of law.
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Within the international trade relations, risks may currently arise from certain facts or events that result in conflict situations between the parties involved in commercial operations, having as consequence the appearance of the litigation. In this context, a special place is occupied by maritime litigation, a complex, plurivalent dispute, combining elements emerging from international trade law, transport law and maritime law. The present study aims to identify and analyze the main issues that give the maritime litigation a particular nature, conferring it, legally, a specific character compared to other international trade disputes. The objectives of the research are circumscribed to the analysis of the characteristics of the maritime litigation, of the causes of its occurrence and of its conditions of manifestation. Within the paper, special attention was devoted to studying how to instrument the maritime litigations, with the methods of the maritime technique and the legal and economic solutions used in this matter. With regard to the procedures of settlement of maritime litigations, the study focuses on highlighting the operational phases, the analysis of evidence and of other issues that configure the applicable procedural framework in case the parties involved have expressed the option to settle the dispute for the contentious procedure. Examining the specific features of this original type of disagreement has highlighted a pronounced pragmatic character over the theoretical argumentation taking into account the force of maritime or harbour regulations or usages in this field. The notion of maritime litigation and its regulation became outstanding at a stage preceding the emergence of maritime law. Over time, seafarer’s practices have created usages and traditions specific to trade in goods carried by sea, which have led to the unification and even codification thereof in the context of classical maritime law. The scope of the notion of maritime litigation is much wider than that of the maritime trial and has an earlier application over time, whereas only a part of the maritime litigations lead to a proper judicial trial or to a maritime arbitration. Maritime litigations can be defined as disputes between two or more parties involved in the maritime expedition or between the signatory parties to specific contracts used in all activities related to maritime trade. In this regard, disputes of a maritime nature may arise as a consequence of the non-performance or malfunction of maritime transport contracts, so that it is indicated to mention in these contracts some specific clauses, stating the modality and rules for solving such conflict situations, including the jurisdiction clause, since the non-inclusion of this clause raises disputes over the jurisdiction of the courts of such litigious cases. Maritime litigations are dealt with by the specialists in the field both in the ante-judicial and judicial stage, through the correct coordination of the parties involved and the professional settlement of all the litigious aspects. The specialist in maritime litigations should be a person with cumulative competencies in the technical, economic and legal field, maritime navigation and port exploitation. Solving major maritime disputes is a complex and laborious process, which requires pragmatism, accuracy, increased attention, quick decision and efficiency. The general procedure for dealing with this disagreement is carried out on the basis of a strictly technical, specialized methodology and requires going through several phases such as the finding the occurrence of the event or conflict-generating act, the notification of the parties involved, the collection and preservation of the evidence for defence or for the drawing up of the complaint, quantifying and filing the complaint, taking a decision on the modality of approach, the negotiation and pronunciation of the solution to finalize the case. The resolution of maritime litigations is based on the case law in the field, strongly influenced by international maritime conventions and on the relations created between the rules from various law systems, applicable in the field, in the context of assimilation and implementation of the international trade usages.
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The courts can not censure the decisions of the Constitutional Court in terms of the statements which they contain with regard to the unconstitutionality of a legal norm and the impact they have on the way of settling the ongoing disputes, respectively not finalized through the pronunciation of some irrevocable judgments, following the cessation of the application of that norm by declaring it unconstitutional. They have the obligation to apply the decisions of the Constitutional Court to their letter and spirit and they can not add by way of interpretation elements that are capable of restricting them or, respectively, to extend their scope. By the Decision of the Constitutional Court No 369/2017 it has been stated that all the judgments pronounced after the publication of the decision in the Official Gazette of Romania are subject to appeal, in the cash assessable applications, except for those exempted according to the criterion of matter, expressly provided in the theses covered by Article XVIII (2) of the Law No 2/2013. In the application of this decision, the High Court of Cassation and Justice – the Panel for the settlement of some matters of law, by the Decision No 52/2018 has stated that the effects of the decision of unconstitutionality will concern all judgments pronounced after the date of its publication, but in trials commenced after 20 July 2017. By this statement, the decision of the Constitutional Court No 369/2017 has been amended without justification under the pretext of the settlement of the matter of law concerning the application of that decision over time. By the Decision of the Constitutional Court No 454/2018 it was established that the High Court of Cassation and Justice does not have the power to rule on the effects of the decision of the Constitutional Court or to give binding rulings which are contrary to the decisions of the Constitutional Court, but has the obligation to apply that decision in such a way suitable to its considerations to the case subjected to judgment. The Decision No 454/2018 has an interpretative character and therefore, by way of derogation from the principle according to which the decisions of the Constitutional Court apply only for the future, it has a retroactive effect, in the sense that it is put into application from the date when the Decision of Constitutional Court No 369/2017 began to take effect.
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Marcarea Centenarului Marii Uniri (1918–2018) a ridicat fundamentala problemă a abordării unitare, din perspectiva succesiunii în timp a reglementărilor, impactului lor social și evoluției ideilor, a dezvoltării juridice a României la scara ultimului secol, relevându-se, totodată, și pe această bază, mizele prezentului și provocările viitorului pe termen mediu și lung. Acest eveniment a oferit ocazia unei analize complete și în spiritul adevărului istoric a fenomenului complex și major al unificării juridice interbelice – legislativă, judiciară și doctrinară – ca parte inseparabilă a procesului de desăvârșire a unității naționale și fundament organic al științei dreptului și culturii juridice românești.
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Este foarte dificilă cercetarea noțiunei de ordine publică și determinarea conținutului acestei noțiuni este cu totul anevoioasă. Nu există, poate, în drept și în sociologie, o mai confuză noțiune, dar care să-și găsească mai variate câmpuri de aplicație și de care să se facă uz mai des, mai ales în ultimele timpuri, atât în relațiile particulare dintre indivizi, cât și în legăturile și raporturile dintre Stat și individ de o parte sau dintre State, de altă parte. Stabilirea conținutului exact al ordinei publice și analizarea tuturor efectelor sale depășesc cu mult cadrul normal al unui articol, chiar mai lung, dintr’o revistă juridică. Vom căuta totuși, în cele ce urmează, a schița rapid datele problemei, fără a pretinde că, în acest fel, am epuizat subiectul; de altminteri, intenția noastră nu este decât de a face o sumară introducere în examinarea acestui subiect a cărui analiză poate face obiectul unui întreg tratat. -
Competența materială de a judeca propunerea de arestare preventivă a inculpatului față de care s-a pus în mișcare acțiunea penală pentru infracțiunea de nerespectare a regimului armelor și munițiilor, prevăzută de art. 342 C.pen., aparține judecătorului de drepturi și libertăți din cadrul judecătoriei, chiar dacă în cauză s-a început urmărirea penală in rem pentru infracțiunea de constituirea unui grup infracțional organizat, prevăzută de art. 367 C.pen.
