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The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty. -
From the time of the four Geneva Conventions (1949) and the 1st Additional Protocol to those (1977) till present days, the notion of belligerency has extended and restructured itself. The evolutions of terrorist groups from the national level of organization to transnational level start to raise the question of the legal qualification of those structures from criminal groups to belligerents. Has the terrorist group got beyond the borders of national law and start to acquire a legal personality in the international law of armed conflicts? In the present study we will start from the classical definitions of the international armed conflict, non-international armed conflict, then observe the evolution of those notions under the case law of the international criminal tribunals set off by the United Nations for Rwanda and former Yugoslavia, as well as the Status of the International Criminal Court, all reflected in contemporary legal doctrine. At the end, we will analyse the capacity of the terrorist group as armed conflict generating factor. -
The content of the paper reveals the changes in the E.C.H.R. case law occurred in the matter of interrogation of the prosecution witnesses following the pronouncement of the judgments in the cases Al-Khawaja and Tahery v. the United Kingdom, respectively Schatschaschwili v. Germany. The author considers that by the two judgments E.C.H.R. has returned to each of the three conditions imposed by its own case -law for the use as evidence of „anonymous statements”, establishing the exact opposite of those estab lished by its previous case law on those conditions. At the same time, the author emphasizes that through the analyzed judgments E.C.H.R. has practically radically changed its case law outlined over more than 20 years. Next, it proceeds to the presentation of the grounds retained by the E.C.H.R. in the two cases, after which the author emphasizes the obvious contradictions existing between these grounds and those established by the E.C.H.R. on the same issues in previous cases. Finally, the author points out that, despite the contradictions and inconsistencies shown in this paper, presently the case law Al-Khawaja and Tahery – Schatschaschwili exclusively governs the conditions under which it is determined whether by using the „anonymous” or „unverified” statements it has been violated or not the procedural guarantee written down in Article 6 (3) d) of the Convention. -
Starting from the contents of the preliminary theses which seem to announce the imminent entry into force of a new Administrative Code, this study proposes an analysis on a double level: on the one hand, by establishing some correct relations both with the future Administrative Procedure Code and with other hypothetical future codes (the Urbanism Code, the Domain Code, the Contraventional Code, etc.), the matter to be regulated by this new Code should be decided: from a minimalist vision (the central and local public administration plus, possibly, the public function and civil servant) to a maximum one (additionally, the same Code is also going to cover the matter of public services, of goods belonging to the administration, of administrative liability respectively), for reasons of pure opportuneness it is for the legislator to delimit this Code from others which he envisages in the more or less near future. On the other hand, we have approached, at the level of legal details, some problems that, de lege lata, do not have a solution at all or have a questionable solution: the matter of cessation by right of the mandates of the mayors convicted to custodial sentences with suspension of the punishment under supervision, of the mayor’s quality of the State's representative, the daring solution of repealing the provisions of the Civil Code referring to the public property and their development in the Administrative Code, establishing a clear distinction, as far as possible, between the liability (to third parties) of the administration from that of its authorized person (a public servant, as a rule), to mention only the most important ones.
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Considering, on the one hand, a number of projects for the unification of European law, adopted in last decades (Unidroit Principles, Principles of European Contract Law, European Code of Contracts, The Common Reference Framework etc.) and, on the other hand, a series of legal reasoning arguments, the author discusses at length some questionable terminology choices in the new Romanian Civil Code (Law no. 287/2009, published on July 24th, 2009, yet unenforced), for instance: invasion of right to privacy rather than breach of this right; no legal distinction sensed between duty and obligation, between damage and injury; between the object of the obligation and the contract’s subject matter; there are references to the object of the obligation instead of impossibility of provision etc. -
In the current study, the author examines the novel provisions within the new Penal Code with respect to crimes against life. Thus, one has successively analyses the laws sanctioning: murder, first degree murder, murder upon request of the victim, determining or facilitating suicidal, third degree murder, the murder of the new born by the mother. The comments were exclusively concentrated on the differences between the current regulation of these crimes, and the new regulation to be instituted by the new Penal Code. A more detailed analysis was made by the author with respect to the “Murder upon request of the victim”, which is new in the penal Romanian legislation. -
The paper presents the amendments to the Government Ordinance no. 2/ 2001 brought by Law. 76/2012 for implementing Law no. 134/2010 on the Code of Civil Procedure, the Contraventional procedure undergoing major changes with the entry into force of these regulations. Therefore, the steps of the judicial Contraventional procedure are briefly presented through the innovations introduced by the Code of Civil Procedure and, at the same time, the Contraventional law-related issues not yet regulated are analyzed, reiterating the proposal to develop a Contravention Code to regulate matters still confusing of the law material Contraventional and, especially, the ones contravention of the procedure Contraventional. -
This study analyzes briefly the new rules of the private international law of the European Union applicable to cross-border insolvency, contained in the Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast) and applicable in their large majority starting with 26 June 2017. The study presents the legislative history of cross-border insolvency in the Union, the context of the adoption of Regulation (EU) 2015/848 and the objectives aimed thereby. Similarly, there are briefly presented the scope of application of the Regulation, the rules on international jurisdiction, the main and secondary insolvency proceedings, the law applicable to insolvency proceedings and their effects, the recognition of the judgment for opening the insolvency proceedings, the insolvency proceedings applicable to companies of the group and the insolvency registers.
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Selling land outside built-up areas has a specific regulation in Romanian law, often derogatory from the general provisions applicable in the field of selling goods, as regulated by the Romanian Civil Code. This specific regulation is comprised in Law No 17/2014 concerning some regulatory measures in case of selling agricultural land located outside the built-up area and for modifying the Law No 268/2001 on privatising commercial societies which administer state owned public and private property lands, destined for agricultural needs, act which suffered a series of important modifications by the Law No 175 from 14 th August 2020. This legal modification from 2020 implements a series of important legal changes related to the holders of pre-emption rights, but also concerning the specific modalities of selling agricultural lands located outside the built-up areas, when the holder of pre-emption rights does not want to buy. Also, in each case when the court is asked to give a decision which supersedes a selling contract, the petition is admissible only if the pre-contract is legally signed, according with the Civil code provisions and all other legal requirements are fulfilled, meaning: obtaining all necessary authorisations, respecting the pre-emption right, respecting the fiscal and land registration requirements. The law also clarifies how the pre-emption procedure works and how it is controlled by the state authorities.
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According to the latest’s international studies about economics in Latin America, a natural problem that have emerged it is the lack of finance oriented in two fronts: in first place, to the small and medium corporations, and in second place, to promote businesses devoted to the technological innovation. In that lines of ideas, for the last years have being accepted in the Chilean Congress several changes in the commercial law, destined to provide an adequate juridical structure to provide entrepreneurs to generate the evolution our markets require to enter a natural standard of growth, two politics in this direction were the creation of corporations of multiple guaranty, and stock divided corporations with limited responsibility, who are called as a concrete solution to this problems.
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Orice persoană poate solicita constatarea nulității absolute a unui act, dacă justifică un interes, or în cauza de față scopul urmărit de reclamant, prin constatarea nulității absolute a hotărârii comisiei județene de fond funciar, este acela de a include în sfera sa de administrare suprafața de teren menționată în actul a cărui anulare se solicită.
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The article addresses in a systematized manner some of the most important problems raised in the administrative practice and, implicitly, in the case law of the administrative disputes courts by the traditional triad concerning the cessation of producing of legal effects by the administrative acts, namely the nullity, revocation and inexistence. There are briefly reviewed aspects concerning terminology, doctrinal definitions, the relative nullity – absolute nullity distinction in the administrative law, the legality – opportunity correlation from the perspective of the control of administrative acts, the authorities competent to establish the nullity, revocation or inexistence of an administrative act. The complex issue of the legal effects of finding the nullity, the revocation or inexistence of administrative acts, but also of the repeal that can intervene only in case of normative administrative acts is examined by reference to some of the relevant solutions of the administrative case law. A newly raised issue, due to the incidence of the administrative law, briefly aims at the position of prosecutor of case or of judge in relation to an administrative act with incidence in a criminal case.
