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The new Civil Code achieves in art. 1730-1740 a general-rule regulation of both legal and conventional preemption right, regulation applicable wherever the law or the contract do not stipulate otherwise. The conventional preemption right is recognized and regulated under the name of preemption right established by contract; it is nothing but a preference pact in the matter of the sales Contract. Considering that, regardless of the legal or conventional nature of the preemption right, is not normal to have two different systems that penalize violations in the beneficiary’s purchasing priority, the mechanism operating in case of preemption was governed unitary, the freedom of contract left to preemption’s promisor and this freedom overcome consequences being outlined. Whilst trying to settle the doctrinal controversy on the legal characteristics of the right of preemption, the new Civil Code provided for in Art. 1731 that the sale of the property on which there is a legal or conventional preemption right can be concluded with a third party only provided that there is a condition precedent of the preemptor non-exercising the right of preemption, but without specifying explicitly whether such a condition should be considered implicit where it has not been stipulated in the sales contract with the third party. Removing the jurisprudential shortcomings of the substitution mechanism related to the beneficiary instead of the third party purchaser, who is incompatible with the dissolution contract signed between the latter and the promisor, Art. 1732 and 1723 of the new Civil Code, without expressly referring to the sale under condition precedent, stipulate that, through the exercise of preemption, the sales contract is deemed concluded between the preemptor and the seller in the conditions contained in the contract with the third party, and this latter contracts shall be canceled retroactively. In terms of obligations, the creditor is entitled to proper execution and should the creditor have such right, he/she should be granted the opportunity to find effective means to protect it. Reading of Art. 1731 of the new Civil Code, in the sense of making the condition precedent of the preemptor’s non-exercise of the right of preemption in the any sale between the promisor and the third party to be implied, corresponds to the doctrine and jurisprudence attempts to find appropriate means to ensure the observance of the preemptor’s ignored rights, while considering the above principle. -
The study of the contract of audiovisual adaptation has been imposed for multiple reasons. Firstly, as no contract of transfer agreement of the author’s patrimonial rights, which includes also the contract of audiovisual adaptation, does not have its own regulation in the Civil Code (Law no. 287/2009). Consequently, the current article deals also with the problem of the incidence of the norms of common law on the analyzed contract. Secondly, the research was also determined by the fact that in the Law no. 8/1996 regarding the author’s rights and the associated rights this type of contract was allocated a laconic regulation, i.e. only in a single article of law. Thirdly, the discussion of this topic was necessary as the norms dedicated to the contract of audiovisual adaptation included in the special Law are not clearly, fluently and comprehensively enough formulated, presenting quite a few faults lacunae and even imprecision, which the author highlighted, sometimes under the form of de lege ferenda proposals.
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Under art. 164 to 177 of the Civil Code the legislator regulates “the protection of the judicial prohibited” and “the placing under judicial interdiction procedure” under art. 935 to 940 of the Code of Civil Procedure; these texts essentially take over the old regulation provisions and also establish some updates, including that of determining jurisdiction in the matter in favor of the court guardianship, court which also takes over the guardianship authority duties. This study aims to explore and explain the legal rules above.
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In the first part of this study the authors present the advantages of parties’ representation through a lawyer, namely through a legal adviser. They’re also showing the solutions promoted in comparative law in this matter, noting that the principle of European law is that of mandatory parties’ representation by a lawyer. Authors’ approach materializes in a comprehensive analysis of the new Code of Civil Procedure provisions concerning parties’ to the appeal mandatory representation through a lawyer or legal adviser. In the authors’ opinion this requirement is aimed not only at the appellant, but also at the intimate. Individual reflections are also formulated in terms of the representation of the parties in withdrawal extraordinary remedy at law, namely the appeal for annulment and revision. The provisions of the law regarding the measures for relieving courts and preparing the implementation of Law no. 134/2010 regarding the Code of Civil Procedure are also analyzed, summarized in the final part of the study. This normative act contains a particular provision on judicial and prosecutor offices’ representation in court. The authors opinion that the procedural rule subject to the analysis takes into account the representation of courts and prosecutors offices in the event that they participate on their own behalf in the substantive law report.
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Pentru a fi în prezența unei încãlcãri a dreptului moral la respectarea operei, în sens larg, în conformitate cu art. 10 lit. d) din Legea nr. 8/1996, prejudiciul moral, indiferent de modalitatea în care este produs, trebuie sã constea în afectarea a înseși onoarei sau a reputației autorului, valori expres prevãzute de legiuitor. Așadar, nu este suficientã simpla atingere fizicã, fiind necesar ca aceasta sã fie de o anumitã consistențã și gravitate, astfel încât sã afecteze onoarea și reputația autorului, consecințã ce echivaleazã cu denaturarea viziunii artistice a autorului asupra operei sale. -
In this study, the author examines by comparison the legal regulations concerning the enforcement treatment applicable to minors in different states; the analysis is carried out starting with the different systems of legal enforcement – special regulations or rules included in a general regulation, like the Penal Code, continuing with the limitations of the penal responsibility of minors, and finally – the presentation of the sanctions applicable to minors in 17 different states. In the end, the author examines the opportunity for new legal provisions to be included in the future Penal Code, in order to reduce the applicability of the sanctions in favor of the educational measures, some of which being successfully applied in other european penal regulations.
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The Romanian Criminal Code in force (in 1969) does not mention domestic discipline among the reasons removing the criminal nature of the deed (art. 44-51). Similarly, the new Romanian Criminal Code (Law no. 286/2009) does not stipulate domestic discipline among the supporting reasons (art. 18-22) or among the reasons of non-imputability (art. 23-31). The following question arises under these conditions: Will the parent who pulls his / her child by the ears when committing acts of disorder in the family or behaves violently with his colleagues be convicted? Some lawyers and teachers respond affirmatively, others negatively, thus creating discussions about the existence of a right of discipline. In this study, the authors analyze domestic discipline in respect of the parents, educators and military, arguing that they enjoy a moderate and limited right of discipline, which is provided in some cases by law and in others is not.
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Currently, disputes arising from the application of Law no. 85/2006 are a significant part of Romanian contentious matters, the role of the specialized sections within the courts throughout the country being most often overcrowded. For the years of crisis, insolvency is what claims and disputes arising from the property restitution laws enforcement meant for the years of increased growth. Although civil law specialists with tradition find the insolvency proceedings regulation quite simple, it arises nevertheless a number of interesting legal issues, worth a deeper look. One of these is the issue of compatibility between the intervention institution governed by the Code of Civil Procedure, and the applications specific to insolvency proceedings. Due to the fact that our jurisprudence has provided no consistent reply yet to this issue, the author states the reasons for which a particular solution (rule and exception) seems to be required.
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In this study, the author makes a thorough analysis of the provisions of art. 61 letter d) of the Labor Code (Law no. 53/2003, republished) whereby, among the causes for dismissal by reason pertaining to the employee, the case of employee’s failure to professionally meet the job requirements is also expressly regulated.
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The paper presents some of the most important aspects of the individual employment contract nullity as it is set up by the regulations which are derogatory from the common law provided for in the employment law. In addition, it aims to highlight the extent to which the new regulation nullity in the current Civil Code (entered into force on October 1, 2011) would also apply to the individual employment contract, based on the rule that the provisions of the Labor Code is completed with the civil Code. The analysis performed is intended to lead to conclusions concerning the civil law rules relating to nullity, which, as they are not inconsistent with the specific employment relationship, shall also apply to the individual employment contract.
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According to art. 147. (4) of the Constitution, the Constitutional Court rulings are generally binding. Therefore, the public authorities, including courts, regardless of their level, must observe the Constitutional Court rulings both in terms of the operative part and recitals thereof. Although they do not constitute a source of law, the High Court of Cassation and Justice judgments rendered after settlement of an appeal in the interest of law, require the courts a particular solution to a law issue, therefore an interpretation of legal rules. When performing the interpretation and application of law, a contingent conventionality control also occurs; such control is carrying out by this Court whilst assuming that the courts’ divergent practice is given by the different application of the (European) Convention on human rights and fundamental freedoms provisions. Not infrequently, the High Court of Cassation and Justice’s jurisprudence on the matters submitted to trial did not coincide with that of the Constitutional Court, and this study aims to point out and analyze such cases. The proposed solution takes into account a possible constitutionality review of the previously reported judgments of the High Court of Cassation and Justice; such control has already been carried out indirectly in certain rulings of the Constitutional Court.
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The author provides a detailed analysis of the legal content of bribe taking offense provided for in art. 289 of the new Criminal Code. He examines the subject of care proceedings, the subjects of the offense, the objective and subjective sides, the forms, procedures, sanctions and some procedural aspects relating to the deed provided for in art. 289 of the new Criminal Code and its aggravated versions. Also, the author does not hesitate to express his standpoint with regard to the systematization of this offense, the constituent content thereof, its nature, its relations with the provisions of Law no. 78/2000 on preventing, discovering and sanctioning corruption, as subsequently amended and supplemented, and to propose some of his own solutions and ideas in this regard. Not least, the author promotes some of his own opinions on the connection or relationship of this criminal deed with other offenses, as well as regards the law applicable for transitional cases.
