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The author’s approach is intended for a partially critical analysis of the Decision of the Constitutional Court No 225 of 4 April 20172, by which the phrase „likely to prejudice the prestige of the profession” within Article 14 a) of the Law No 51/1995 was declared unconstitutional. The Constitutional Court has held that the criticized text is devoid of precision, clarity and predictability, as it does not circumstantiate the scope of the offences likely to cause the unworthiness in the profession of lawyer. The author considers that this solution of unconstitutionality makes an exaggerated interpretation of the incidental legal provisions, unduly restricting the right of appreciation of the competent structures of the professional organization of lawyers and of the judge called to settle any possible disputes. Within this study it is noted that there are various other situations in which the right of appreciation of the judge can not be challenged in our legal system. The approach included in this study also insists on the consequences which can be determined by the analysed solution of unconstitutionality, due to the existence of some identical or very similar provisions in respect of other liberal legal professions as well. A cavalcade of pleas of unconstitutionality, based on similar considerations, could raise for discussion other important institutions of law as well, such as those concerning the disciplinary, contraventional, civil or even criminal liability. -
Article 42 (3) of the Annex to the Order of the Minister of National Defence No M.110/2009 is a true legal innovation because it extends the scope of the liability for medical malpractice to hotel obligations (specific to the tenancy contract) within the content of the medical contract, but, at the same time, reduces the sphere of liable persons down to the military physician (treating physician and section chief), by exceeding the express legal limits of the liability of the physician and actually taking over not only the entire medical liability of the military hospital, but also of the medical equipment producers and of the suppliers of utilities of the military hospital.
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The study is devoted to the legislative convergences and divergences existing at the level of the European countries regarding the functioning of small and mediumsized companies. The first part of this approach emphasizes the important role of small and medium-sized companies within the national economies, including their contribution to the formation of the gross domestic product. In the author’s opinion, the support granted by the political and legislative powers, including by the doctrine, is not in accordance with the contribution brought by the small and medium-sized companies to the development of the national economies. Starting from the finding that the typical legal form of functioning of the small and medium-sized companies is represented by the limited liability companies, the author presents the most relevant aspects regarding their establishment, organization and functioning. A particular analysis is also carried out in relation to Directive 2017/828/EC, a European document that is likely to significantly promote appropriate normative convergences. The author also emphasizes some positive trends manifested at the level of the European Union, such as those represented by the elimination of the fixed minimum share capital or by the reduction thereof. Among the legislative divergences, the author analyzes those determined by the conflicts of interests between the members of the limited liability company. In particular, the author takes into account the divergences concerning the right of the minority members, whose interests are threatened by the actions of the majority members, to freely exit that company.
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The Civil Procedure Code entered into force on 15 February 2013, when neither the fax nor the e-mail were unknown anymore in the field of communication. However, the procedural provisions have proven to be tributary to some classical origins, even obsolete in some cases. The interventions of the High Court of Cassation and Justice, of the Constitutional Court, in the matter of law analyzed by the authors in this article, did not have the role of modernizing nor of improving the efficiency of the act of justice. The given interpretations have taken into account the letter of the law and not its spirit, probably starting from the strict application of the procedural provisions. Without disregarding these principles, the authors criticize in an argumented manner the solution pronounced by the Decision No 34/2017 of the High Court of Cassation and Justice, the Panel for the settlement of some legal issues, ruling in the sense of qualifying the procedural act sent by e-mail or fax, after the court’s work schedule, but until 24.00 of the last day of the procedural term, as being done in due time.
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Înscrierile în cartea funciară nu au caracter constitutiv/translativ, ci numai efecte de opozabilitate față de terți (art. 25 din Legea nr. 7/1996 arată că „înscrierile în cartea funciară își vor produce efecte de opozabilitate față de terți...”). Astfel, această lege asigură publicitatea imobilului și nu are efecte constitutive/translative ale dreptului de proprietate. (...)
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In this article the author analyzes the procedure of individual complaint of the citizens before the Federal Constitutional Court of Germany as it is regulated in the Federal Constitution and in the special law on the constitutional control court. The constitutional text provides that the procedure in question is a legal means of appeal with the purpose of defending human rights and fundamental freedoms. Specifically, any person who claims that one of his rights or one of his freedoms enshrined in the Basic Law has been violated by an authority exercising public power may address the federal constitutional court. The author analyzes the procedure of individual complaint and separates it from other constitutional procedures.
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The Civil Code expressly introduces the porte-fort convention or the promise of another’s deed in Article 1283, regulation which takes over the institution which was created in the doctrine of the Civil Code of 1865. The current codification places the institution in the section regarding the effects of the contract, but in a subsection distinct from the one devoted to the consecration of the principle of relativity of the effects of the contract. Although the systematic treatment of the principle inevitably implies the exploration of the controversies on the real or apparent exceptions, the incorporation of the analysis of the porte-fort convention in this framework has made the novelty of this legal figure somehow obscured. This article intends to make a critical analysis of the porte-fort convention in the regulation of Article 1283 of the Civil Code also from the perspective of the comparative law, by pursuing in detail the legal regime in terms of notion, forms, nature, legal characters, conditions of validity and effects, as well as the applications of this institution.
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Equality of citizens before the law and before the public authorities is a fundamental category of the theory on social democracy, but also a condition of the state of law, failing which constitutional democracy can not be conceived. The Romanian Constitution expressly enshrines this principle. However, there are also particular aspects of this principle enshrined in the Basic Law. Equality before the law and before the public authorities can not involve the idea of standardization, of uniformity of all citizens under the sign of the same legal regime, regardless of their socio-professional situation. The constitutional principle of equality implies that equal legal treatment should be applied to equal situations. This social and legal requirement implies numerous interferences between the principle of equality and other constitutional principles: the principle of identity and of diversity, the principle of pluralism, the principle of unity and, in particular, the principle of proportionality. In this study, using theoretical and jurisprudential arguments, we intend to demonstrate that in relation to contemporary social reality equality, as a constitutional principle, is a particular aspect of the principle of proportionality. The latter expresses in essence the ideas of: fairness, justice, reasonableness and fair adequacy of the decisions of the State to the factual situation and the legitimate aims proposed.
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The idea of a neutral power from those derived from the separation of powers was preceded in the modern epoch by the placing of one of the Chambers of the Parliament in the role of balancing and preserving power. This second Chamber had to be different from the first one, in order for it to be superior. The manner of conceiving this superiority and the balancing and conservative role of this Chamber have been different from one epoch to another and from one system to another. In the following article, subsequent to a brief analysis of the concepts of neutral power and balancing power, I shall investigate the role played by the superior Chamber of Parliament in the constitutional history of Romania.
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A decision pronounced for the settlement of an appeal in the interest of the law by the High Court of Cassation and Justice (No 25 of 6 November 2017) brings to attention the inadequate perception by the Romanian jurisdictions of the particularities of these administrative acts of urbanism and, consequently, the recourse to procedural artifices inappropriate for solving some problems arisen in practice. In this case, for the separate exercise of the control on the legality of the urbanism certificate „by which the prohibition to build has been ordered or which includes other limitations”, the right of access to justice has been invoked [Article 6 of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms], ignoring the legal nature of this act as individual urbanism administrative act that would, under certain conditions, have led to the same solution, but on another legal basis. In addition, it would be avoided the misconception that the certificate would order or that it would contain per se prohibitions/limitations of the right to build, this doing nothing else but take over, express and inform about the urban planning requirements included in the urbanism documentations.
