-
Although the legal doctrine has been less concerned with this subject matter, there are some papers elaborated under the influence of the previous regulations, however, there are quite a few recent papers. In this article, the author makes an analysis of the offences of this special regulation, preferring a classical approach of the subject, the structure being as follows: 1) a brief history of regulations in the field of fishing and aquaculture; 2) the analysis of the offences in terms of constitutive elements, but having in view that some elements are common to all offences, such as, for example, the legal object; these are analyzed by groups, in order to avoid repetition; 3) a few elements of comparative law, by exemplification of some incriminations in the specific legislation of other States. -
The paper is based on the non-uniform practice of the courts within the jurisdiction of the Court of Appeal Oradea, as well as from the country, referring to the following situations: the rejection of the proposal for preventive detention during the criminal prosecution; the rejection of the proposal for extension of preventive detention during criminal prosecution; the cessation de jure of the preventive measures; the revocation of preventive measures and the replacement of a preventive measure with other preventive measure. Within this paper the author deals with controversial aspects in the matter of judicial remedies concerning the preventive measures.
-
Juvenile deprivation of liberty is a controversial issue, in particular because the measure is in opposition to the educative goal of juvenile justice. Detention of children is a more acute problem. In Switzerland, although pre-trial – as well as administrative (immigration law) – detention of children under the age of 15 are prohibited, they are inappropriately decided by courts and authorities. The article describes the situation, its legal frame and has a critical look at such practice and decisions.
-
-
In this study the author analyzes, on the one hand, the scope of application of the provisions of the Government Emergency Ordinance No 34/2014, and, on the other hand, the consumer rights in contracts concluded with professionals which fall within the scope of application of the mentioned Ordinance. We note that the Government Emergency Ordinance No 34/2014 on the consumer rights within contracts concluded with professionals transposes, into the Romanian legislation, the provisions of Directive 2011/83/EU of the European Parliament and of the Council, published in the Official Journal of the European Union, L 304 of 22 November 2011. -
The right of the creditor to request the opening of the insolvency procedure is one of the modalities which the legislator has made available to the creditor in order to materialize his claim right held against his debtor. The opening of the insolvency procedure does not have the characteristic of a proper enforcement, whereas insolvency does not offer to the creditor the guarantee of actual satisfaction of the claim right held against the debtor. The creditor entitled to request the opening of the insolvency procedure must have held against its debtor a certain, liquid and exigible claim for more than 60 days, which shall have the minimum amount set by the law. This study intends to analyze the characters of the claim of a creditor entitled to request the opening of the insolvency procedure, respectively the certain, liquid and exigible character.
-
Promoting a public „good governance” involves the rationalisation of the manner of functioning of the state and of the instruments used, among which there are those of a normative nature. The proliferation of legal rules – at national level, at European Union level and at international level – is today a general phenomenon, generating costs – legal, administrative, economic and others – more burdensome for the individual and for the entire society. The remedy for this situation is simplification, under its various aspects – administrative simplification, simplification of the legal language or of the legislative techniques –, an old method frequently used, however a new concept trying to stand out in the field of legal theory. The simplification of law as legal-administrative action has undergone various national and EU experiences. These have accredited a series of principles of conduct, have set targets to be attained and have promoted specific methods and techniques for achieving them.
-
Both at Community level and at national level, there is the concern to allow the employees the possibility of a conciliation of the professional life with the private life, one of the measures regulated in this respect being the leave for raising a child, provided by the Government Emergency Ordinance No 111/2010. The exercise of this right can not be a reason to treat the employee differently or to affect his professional evolution, as the law guarantees the stability of the labour relation for the duration of the leave and subsequently, as well as the right to be reinstated to the same position or to an equivalent one. However, the national legislation also contains provisions which are lacking clarity, does not fully transpose the Community law in the field, so that it is required an improvement of this legislation and a greater flexibility in regulating of the situation of the labour relation for the duration of the leave for raising a child.
-
At first sight, guilt appears as being one of the necessary conditions for engaging liability, which is quite easy to determine. In fact, in order to make such a statement it must be considered the structure of guilt, formed not only of the intellective and volitive factors that make up the complex psychological process which stands at the origin of the illicit activity, but also the imputation which can be brought to the agent for a conduct inconsistent with the rigours imposed by the legal order. By the analysis made, the author of this study has emphasized both the strengths, and the disadvantages of the criteria subjectively, objectively and even intermediately used for determining the civil guilt in concrete situations. Likewise, he has also dealt with the possibility of determining the criminal guilt in the light of the psychological and normative conceptions. At the same time, by expressing his options for some of these, the author has proposed some nuancings in order to obtain some results as precise as possible and, at the same time, fair for all parties involved.
-
In the matter of conditions of application of the preventive arrest measure, as in the case of other institutions, the new Criminal Procedure Code contains new regulations and takes over, to a small extent, some provisions of the previous Criminal Procedure Code (of 1968). The new Criminal Procedure Code has regulated the preventive detention in a single modality: the detention of the defendant, namely of the person against whom the criminal action has been set in motion. In this study, the authors analyze the institution of preventive detention, with special reference to the conditions of application of this measure, by presenting some critical aspects and by proposing some improvements of the new regulation. Key
-
The current standards on the quality, the integrity and the non-disclosure of the professional secret in the interprofessional complementary activities of the Romanian judicial system represent, in the contemporary society, a concern to adjust to the permanently changing reality. The existence of some constants such as independence, competence, responsibility, but also honour, dignity and respect, in reality, receives new meanings, and their convergence is achieved only by way of a various communication. Creating some new modalities to ensure the common professional status is not an illusion, but a real need for the interprofessional dialogue to take place not only within a profession, but within more professions, for the purpose of ensuring the unity in the application of law.
-
Din economia dispozițiilor art. 1349 din noul Cod civil reiese faptul că orice persoană are îndatorirea să respecte regulile de conduită pe care legea sau obiceiul locului le impune și să nu aducă atingere, prin acțiunile ori inacțiunile sale, drepturilor sau intereselor legitime ale altor persoane; cel care, având discernământ, încalcă această îndatorire răspunde de toate prejudiciile cauzate, fiind obligat să le repare integral.
-
In the Romanian doctrine, even if it is evoked the legal existence of the „right to a name”, most authors define it as if it were identical to the „name”. Likewise, some of its legal characters are just asserted, and others are logically and legally grounded in a questionable manner. In relation to this „situation”, this study is devoted to the argumentation and phrasing of a variant of „definition” for the „right to a name”, as well as to the „nuancing” of its legal characters. -
Under Article 1541 (1) b) of the new Romanian Civil Code, among the conditions in which the court may reduce the quantum of the penalty is also the condition that the penalty should be clearly excessive in relation to the damage that could be provided by the parties upon the conclusion of the contract. This text of the new Romanian Civil Code, which entered into force on 1 October 2011, has generated a controversy, in the sense that, once the „clearly excessive” character of the penalty has been retained, the court shall be required to proceed to the reduction thereof or, on the contrary, it has only a faculty (possibility) to proceed as such. In the opinion of the author of the study, the second interpretation is the judicial one.
-
This article aims to analyze a recent normative act through that were amended and supplemented the normative acts in matters of education, respectively, the Law on national education No 1/2011 and the Government Emergency Ordinance No 75/2005 on quality assurance in education. The approach is focused both on procedural aspects of the adoption of administrative act, in order to determine how the constitutional requirements have been met, but also on the substantive issues, that aim some of the legislative solutions which it enshrines. Among them, the article paid a special attention to the consecration, for the first time in the Romanian legislation, of the possibility that the holder of a scientific title can give up to it. In our opinion, the newly introduced rule has some weaknesses, both in terms of how it is written, but also on the legitimacy of the solution itself.
-
The article deals with the issue of joinder of executional files, making reference to the meaning of the syntagm „expenses incurred by the time of joinder”, to the possibility of reducing the court executor’s fee within this procedure, to the manner and to the time limit for contesting the interlocutory judgment of the court executor.
-
The principle of legal contractual certainty, as regards its component the „sustainability and efficiency of the contract”, is a fundamental principle of the contract law, which emphasizes the need to maintain the contract in the cases of partial nullity and which is dealt with under a double dimension: a quantitative one and a qualitative one. The quantitative dimension concerns the „continuity of the convention” in time and is manifested by a soft and extended duration. The qualitative dimension concerns also the context, i.e. the capacity of the contract to overcome the obstacles which the economic and social events can raise, arisen during performance of the contract. The study is focused on the applicability of the principle of contractual legal certainty both in terms of interpretation, as well as of validity and performance of the contract, with references also to the provisions from the draft European contract law, an action initiated by the European Commission.
-
This study analyzes the scope of application of the indirect action and of the Paulian (revocatory) action both under the influence of the Civil Code of 1864, as well as under the influence of the current civil legislation (the Civil Code of 2009). The study follows the practical application, specifically, of these actions to a variety of rights which might be exercised or revoked through them, also making reference to the specialised French doctrine. There are analyzed the specialised doctrine of our country, both current and older, as well as some judgments delivered in this matter by the law courts. There have been distinguished the novelties brought by the Civil Code of 2009, in the end making a comparative enumeration of the changes brought to these institutions by the new civil legislation.
-
The professional civil liability insurance of physicians is perceived as an additional pecuniary charge of those who want to practice, however, given the increasing number of complaints against some acts of medical malpractice and the moral damages in high quantum granted by the courts to the injured parties, in reality it becomes a real means to protect the property of these professionals. The occurrence of an error in conducting the professional act is possible at any time, which is why a special emphasis is given to taking ex ante measures in order to manage the possible materialisation of an act of malpractice. Such a prophylaxis measure is the negotiation for concluding an insurance contract for professional civil liability, which provides protection for a wide range of risks, compensates several possible types of damage, establishes the limit of the insured amount as high as possible. The plurality of the professional civil liability insurances significantly increases the degree of patrimonial protection of the insured.
-
This article presents the new criminal provisions relating to the cancellation and revocation in the cases of waiver of application of punishment, postponement of application of punishment and the suspension of the execution of the punishment under supervision. The author also proposes a new mechanism for the application of punishment if there is a concurrence between a cause of cancellation and one of revocation of the postponement of the application of punishment or of the suspension of execution of punishment under supervision.
-
In the matter of cases of application of the measure of preventive arrest, as in the case of other institutions, the new Romanian Criminal Procedure Code contains new regulations and takes over, in a limited extent, some provisions of the previous Criminal Procedure Code (of 1968). In this study, the authors analyzes the institution of preventive detention, with special reference to the cases of application of this measure, by presenting some critical issues and by proposing some improvements to the new regulation.
-
Prezentul comentariu este generat de o notă critică la Decizia nr. 3915/2013 a Înaltei Curți de Casație și Justiție, Secția a II-a civilă, pronunțată în Dosarul nr. 2342/111/20071, notă critică publicată pe site-ul Juridice.ro, în „Revista de note și studii juridice”, la data de 15 august 20142.
-
Modalitatea de dobândire a dreptului de proprietate asupra rețelei de distribuție a energiei electrice, prin edificare sau construire, pe un teren despre care reclamantul nu susține și nu dovedește că ar fi proprietatea sa, pentru a se putea prevala de accesiune și de prevederile art. 492 C.civ., nu se înscrie printre cele prevăzute de dispozițiile art. 644–649 C.civ. și nici de alte reglementări legale specifice domeniului de referință, pentru a dovedi calitatea de proprietar asupra respectivei rețele a unei persoane fizice care nu deține nici licență și nici capacitate energetică. În acest caz, pentru a putea reclama prerogativa de a-și exprima acordul la racordarea terților la rețeaua electrică, reclamantul trebuia, în lipsa oricărui titlu, să învestească instanța cu o acțiune în constatarea calității sale de proprietar asupra rețelei electrice, cu atât mai mult cu cât această calitate îi este contestată de partea adversă. (Înalta Curte de Casație și Justiție, Secția a II-a civilă, Decizia nr. 2476 din 27 iunie 2014)
-
Pursuant to Article 127 (1) of the new (Romanian) Civil Procedure Code, „If a judge has the status of plaintiff in an application for which the court where he pursues his activity has jurisdiction, he shall refer the matter to one of the courts of the same level located within the district of any of the courts of appeal neighbouring the court of appeal in whose district the court where he pursues his activity has jurisdiction.” After making a general analysis of the text, the author, contrary to some opinions expressed in the doctrine, considers that, for identity of reason, the text applies accordingly, and not only if the indicated situation exists in first instance, but also if that situation exists in appeal or in recourse, and this is for: identity of reason.
