-
The problems of compulsory licences in the matter of patents has received a unitary regulation with the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights – TRIPS Agreement. Likewise, the Doha Declaration (Doha Declaration on the TRIPS Agreement and Public Health) is an important legal reference point because it clarifies a number of practical aspects relating to the compulsory licences in the matter of new medicines both in terms of the production for the domestic market and the import of such products. In the context of the sharp rise in the prices of new medicines, as well as of the constant pressure on the public health insurance budgets, the mechanism of compulsory licences may represent for the patients a new way of access to the new innovative medical therapies. This article discusses the international and European legal framework, with a special focus on the legal regime of compulsory licences in Romania. There are also examined the experiences of other countries in this field, the way of determining the remuneration due to the patent owner, as well as the usefulness of these practices for Romania. -
This paper analyzes the legal status of the Romanian judgments in terms of the European Enforcement Order, in light of the provisions included in Regulation (EC) no. 805/2004 creating a European Enforcement Order for uncontested claims; Regulation (EC) no. 1896/2006 creating a European order for payment procedure; and Regulation (EC) no. 861/2007 establishing a European Small Claims Procedure, all this, in conjunction with the rules of the new (Romanian) Code of Civil Procedure (Law no. 134/2010, republished on 3 august 2012 and entered into force on February 15, 2013). -
From the point of view of the legal content, the execution of the prison sentence under supervision represents the penultimate way as regards the difficulty of the execution regime, being more facile than the regime involving deprivation of liberty. This execution method disposed by the trial court produces immediate effects, so that the sentence imposed is not actually executed, however, during the supervision period, the person convicted must observe the supervision measures set forth by law, the obligations imposed by the court and to fully perform the civil obligations set forth in the judgment of conviction. If the person convicted does not commit any new offence and he/she complies the supervision measures and with the abovementioned obligations during the supervision period, this execution method produces final effects as the sentence imposed is deemed to be executed by operation of law. In exchange, in case the person convicted does not comply with the supervision measures set forth by law, with the obligations imposed by the court or with the civil obligations set forth in the judgment of conviction during the supervision period, the court is obliged to revoke the advantage of suspending the sentence execution under supervision and to dispose its execution by deprivation of liberty. If the person convicted commits a new offence during the supervision period, the trial court is obliged to establish the sentence for the respective offence, to revoke the suspension of the execution of the sentence under supervision and to apply the sentence according to the second offence rules or to the rules of the intermediary plurality. -
In this paper the author examines the legal regime of the plea of illegality regulated by Article 4 of the Law on administrative disputes No 554/2004, as this text has been rather recently amended by Law No 76/2012 for the implementation of Law No 134/2010 on the [new] Civil Procedure Code. In this regard there are examined: the definition and the legal nature of the plea of illegality, its features, as well as the conditions of admissibility of the plea of illegality. -
Starting from the hypothesis of art. 1073 of the Civil Code („the creditor is entitled to obtain the exact fulfillment of the obligation”, otherwise being „entitled to remedies, the latter being called “damages” in the Romanian legal language), the author makes, in this study, a review of the issue of evaluating default damages in the case of money obligations, namely of the (default) interest, then detailing, in the third part, the legal regimen of legal interests in commercial matters. -
Preserving its nature as a modality of extinguishing a legal obligation, a fiscal obligation herein, the provisions of the Fiscal Procedure Code customize the datio in solutum in relation to the common law, under the following aspects: premises for operation thereof; procedure for realisation thereof – a special and excessively rigorous one; legal effects, all these in compliance with the specificity of the fiscal field. These aspects are the object of analysis of this study, making their radiography, in the light of the connected legal provisions inclusively, so that, ultimately, be able to reach a conclusion on the legal regime of fiscal datio in solutum. -
Along with punishments and educational measures, safety measures are part of the broad criminal sanctions category; however, the latter have a mostly preventive purpose, which is to prevent committing new crimes or other offenses provided by the criminal law. Special confiscation is a safety measure whose legal content is patrimonial, as it concerns certain assets related either to the committed deed or to the offender and which, if further left within the factual and legal circuit, could be used to commit new offenses provided by the criminal law. The mainly preventive aim of the special confiscation safety measure is achieved by the fact that, under the conditions and within the limits prescribed by law, property shall pass free of charge into State ownership so that any person may no longer possess or use them to commit other offenses provided by the criminal law. -
On 24 May 2018, the Parliament of the Republic of Moldova adopted the Law of RM No 85/2018 „For amending and supplementing the Labour Code of the Republic of Moldova No 154/2003”, aimed at adjusting the national legislation to Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies. Thanks to these additions, operated in the Labour Code of the Republic of Moldova (hereinafter – the CM of RM), the Moldavian legislator has expressly enshrined the institution of collective redundancy. The present study aims at the multi-faceted elucidation of the legal regime of collective redundancy in the light of national legislation, of the European standards, as well as of doctrinal opinions. The identification and configuration of the circumstances and of the data underlying this research helped the authors of the study to scientifically elucidate the concept of collective redundancy and to determine the general procedure for its accomplishment. -
The cases examined in this study were generated by a recent decision of the Bucharest Court of Appeal. In essence, the author considers legally admissible the conclusion of agreements between the employer and the trade union, outside the formal framework established by Law no. 130/1996 regarding the collective labor agreement, but only subject to complying with certain limits, which he presents. -
In this study, the author makes a thorough analysis of the current regime of private land movement in Romania in the light of the regulations contained in the new Romanian Civil Code (entered into force on 1 October 2011), as well as in other normative acts in force, but adopted earlier (the Forestry Code - Law no. 46/2008, Law no. 50/1991 on the authorization of construction works republished on 13 October 2004, Law no. 350/2001 on spatial planning and urban planning; Law no. 315/2005 on the acquisition of private property rights by foreign and stateless citizens and foreign legal persons; Law no. 71/2011 for the implementation of the new Civil Code. Essentially, the author believes that, although, partially, the new Civil Code relating regulations do not always have a fundamentally (absolutely) new nature, they bring, however, significant changes. -
-
Continuous development of types of non-custodial sanctions as ways of combating crime, reducing the damage caused by it, avoiding the negative effects of deprivation of liberty, increasing the possibilities of executing these alternatives to the imprisonment and, last but not least, by reducing of detention costs have guided European Union Member States to create and introduce the most appropriate Community sanctions and measures to respond to these desires. The successful introduction of alternatives requires credibility, support of the public who must abandon the prejudice that a more relaxed criminal policy with less severe punishments encourages criminality, or that public humiliation or intrusive tracking of the persons undergoing penalties is permissible, and even necessary, to highlight the status by the offender. Equally, the successful introduction of alternatives1 depends on the judiciary that can not hesitate to make them available on a large scale whether is possible, but also on the involvement of many agencies (probation service, the bodies of the Ministry of the Interior, local authorities, etc.) to implement non-custodial sanctions. -
In principle, except for the emergency situations, it is requested the consent from the parents in order to apply a medical treatment to the minor patient, being essential the minor’s interest and the protection of the minor, of his life and health. In the study there are analysed the legal consequences of having a medical malpractice case for the deed of a physician who, in some situations, applies to a minor patient who is part of the Religious Organization „Jehovah’s Witnesses”, a religious cult recognized by the law in Romania, a treatment based on the blood transfusion, provided that there is a refusal of the parents, who are Jehovah’s Witnesses, on religious grounds1. Jehovah’s Witnesses refuse the treatment based on transfusions of allogenic blood. It must be pointed out the difference between the major person, who is part of the Religious Organization „Jehovah’s Witnesses”, who refuses blood transfusion treatment, requesting treatments alternative to blood transfusion, based on the principle of self-determination and individual autonomy, and the situation involving a refusal of the treatment from the parent for the minor patient (who can not give an informed consent, either because he has no discernment, being under 14 years old, or because he is in the growing up process, 14–18 years old), who is sometimes in a medical condition with risks to his or her health or life, and the physician appeciates that medical treatment based on blood transfusion must be administered, even against the refusal of the minor’s parents, with risks of engaging his liability for medical malpractice. -
Criminal Rule incriminates the refusal to collect “biological samples”, highlighting the driver’s bad faith. Law does not refer to the case where the driver has agreed to provide the first biological sample but refuses the collection of the second. Such situations hindering the criminal prosecution body were met in practice. After a thorough assessment of the incriminating wording in accordance with the criminal provision’s rules of interpretation, the author concludes that the refusal to provide the second biological sample is an offense. -
The article presents the interpretation established by the Court of Justice of the European Union of Article 8 (1) (c) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, according to which the notion „arrest warrant”, as set out in this provision, is to be understood as designating a national arrest warrant distinct from the European arrest warrant. From another perspective, there are analyzed the consequences of the Decision in the Case C-241/15 and the effects on the procedure for enforcing the European arrest warrant of the requested person issued by a judicial authority from a Member State of the European Union.
-
-
In this study we are making reference to the refusal to accept the bill of exchange and the extraordinary acceptance in the Republic of Moldova and Romania. By accepting the bill of exchange, the drawer becomes the principal debtor and, consequently, the bill of exchange must be presented to him. In case the drawee refuses the acceptance of the bill of exchange, the statement of refusal must be ascertained, within the time limits set for presentation on acceptance, by an act drawn up. Normally, the acceptance of the bill of exchange is made by the drawee. In the case of refusal of acceptance from the drawee, in order to protect the interests of the holder of the bill of exchange, the law regulates the possibility for a person other than the drawee to accept the bill of exchange. Such an extraordinary acceptance avoids the initiation of the action for regress.
-
The article analyzes the refusal of the convicted person to be subject to the medical examination upon the arrival to the penitentiary, from the perspective of the Romanian legislation, in correlation with the international instruments regarding the rights of detainees, and legislative solutions adopted by other European states, arguing some proposals de lege ferenda meant to facilitate the fulfilment of the positive obligation of the state to prevent the spread of contagious diseases in the penitentiary environment. The objectives of the article are to determine whether the detainee has the right to refuse the medical examination, whether the Romanian legislation complies with the requirements of the international instruments regarding the protection of the rights of the detainees, respectively whether they have similarities with the legislations of other European states; at the same time, the aim is to identify some rules applicable to the penitentiary system, derived from the case law developed by the ECtHR/Court and from international documents, in relation to the right to health and the relationship between the autonomy of the detainees as persons and the prison environment.
-
Within this study the author presents us some essential points of reference regarding the present situation of the legal education and its prospects for recovery. The author’s approach starts from the finding that education at all levels is in a period of crisis, despite the legal framework developed over the last years and materialized, mainly, in a new national education law. The explanations of the crisis in our legal education are multiple, the author making special reference to the unjustified proliferation of the private legal education and to the existence of a disproportionate relation between the public and private faculties of law. A particular importance is also given within this study to the teaching staff of the university education. The author pleads, in essence, for the financing of the education institutions in relation to the performances achieved, for setting some high standards of promotion of the teaching staff within the legal education and for a more exigent regulation of the incompatibilities and of the conflicts of interest. -
I. Pentru a se garanta mai bine interesele părței civile. 1. Tăerea controversei în privința acordărei daunelor-interese, în caz de achitare, în sensul că achitatul, ca și absolvitul, pot fi în orice materie penală condamnați la daune-interese. 2. Dreptul pentru partea civilă de a pune în mișcare acțiunea publică și a o exercita dânsa singură, când ministerul public ezită sau refuză de a se pune în mișcare, și dreptul de a se face apel sau recurs fie în materie de instrucțiune prealabilă, fie la instanțele de judecată, chiar în caz de achitarea inculpatului. 3. Privilegiul pentru partea civilă de a se despăgubi fiscului din garanția dată de arestat spre a i se da libertatea provizorie, ca și din orice altă avere a acestuia. 4. Tăerea controversei cunoscută sub formula una via electa, lăsându-se la facultatea părței civile de a părăsi chiar calea civilă, și a se alătura la acțiunea publică, în caz când crede mai folositoare această cale și vice-versa. -
-
Elaborarea acestui scurt studiu de reformă vine într-un moment deosebit: în luna septembrie 2014 se împlinesc 10 ani de când au intrat în vigoare legile din pachetul de reformă a justiției care au schimbat covârșitor modul de organizare și de funcționare a justiției românești. Eu sper că această schimbare este și ireversibilă.
-
The Regulation (EU) 2016/679 provides a special protection regime for the sensitive data, given the nature of the information and the high risk of processing it in relation to the rights and freedoms of individuals. The regulation of the rights of the persons concerned is considerably improved, and the set of obligations incumbent for those responsible is strengthened. The international transfer of personal data knows several methods, depending on the existence of the decision concerning the adequate protection level or the presence of the appropriate guarantees. Among the novelty elements we can find the creation (at national level) of a unique contact point and the establishment of the European Committee for data protection (body of the Union, with legal personality). -
The matter of personal data was subjected to review, in order to adapt the dynamics of the new technologies to the imperatives for protecting personal life. Regulation (EU) 2016/679 and Directive (EU) 2016/680 have as their object the personal data processing operations and reflect the process of adaptation to the new national and cross-border realities, and also reflect the harmonization of the numerous proposals formulated, particularly by companies and by the representatives of the civil society. The analysis concerns the new Regulation (EU) 2016/679 and is divided as follows: the first part delineates the relevant provisions of the personal data, identifies the right to privacy and the right to the protection of personal data, as fundamental rights of individuals, outlines the scope of the Regulation, details the terminology aspects and exposes the personal data processing principles; the second part addresses the rights of the persons concerned and the obligations of professionals in handling the personal data, the international data transfer, control authorities and procedures envisaged in the interstate cooperation. -
This study is designed to carry out a general examination of the provisions established in Law no. 202/2010 regarding certain measures to accelerate the resolution of trials. The author presents the most significant amendments and supplements brought to the current civil procedure code in various fields: the judgment before the trial court, the appeal, the second appeal, the special procedure and the enforcement. The author also formulates opinions regarding some of the new legislative interventions. However, some “innovative” solutions are also emphasized in relation to the provisions of the new Civil Procedure Code itself, some of them being considered by the author questionable. -
In the present study, the author gives us a general examination concerning the right to a fair trial and of the settlement of the case within an optimal and predictable time limit. The approach is carried out in accordance with the international and internal regulations, but also in consideration of the latest doctrinal and jurisprudential evolutions in the matter. The first part of the study is devoted to the fair trial, and the main ideas promoted in the context are related to the complex character of the subjective right proclaimed by Article 6 (1) of the European Convention on Human Rights. In the second part of the present approach there are presented the procedural meanings of the right to the settlement of the case in an optimal and predictable time limit. Likewise, some considerations have also been formulated on the legal contest concerning the delaying of the trial, a remedy deemed useful by the author, although the results involved by this institution can not be regarded as spectacular. The author also evokes the recent amendments to the new Civil Procedure Code, such as those concerning the suppression of the review filtering procedure and the possibility of extending the term for the motivation of the judgment no more than twice.
-
The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding. -
The article presents some considerations on the special procedural provisions regarding computer search set forth by Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption. The author examines the nature of the legal institution of computer search and expresses his opinion regarding the need for a distinct regulation of computer search, in relation to the provisions of the Code of Criminal Procedure in the matter of checking and seizing objects and documents, search and technical-scientific finding. -
The article approaches the issue of the criminal prosecution bodies’ decision on the documents or procedural measures taken while conducting the criminal prosecution. The author examines which of the criminal prosecution bodies – the prosecutor or the criminal investigation body – is entitled to rule on the acts or procedural measures and by which of the procedural acts is ruling; the author also expresses his opinion on the penalty for failure to comply with article 286 of the new Code of Criminal Procedure. -
Paragraph (1) of Article 2506 of the Civil Code provides that “limitation does not operate automatically”. The author considers this wording not only useless but also contrary to the reality. He supports his view by emphasizing that the doctrinal thesis underlying its preparation is inaccurate and also that paragraph (1) of Article 2506 of the Civil Code contravenes certain preceding or subsequent legal provisions. In conclusion, the author believes that limitation effect occurs automatically and removing civil liability, which is a consequence of this effect, operates only at the request of those entitled to invoke limitation.
-
This approach is meant to carry out a brief examination of the control which the judge is required to perform on the acts of disposition of the parties in the civil trial. It refers to the main sides of availability and, especially, to the presentness and imperativeness of such a control. In this context, the author notes that the new Civil Procedure Code has not abdicated from the active role of the judge, this being far from the peak of its „glory”. Likewise, the author analyzes the procedural ways of invalidation of the acts of disposition, first noting the incidental legislative regulation both with regard to the transaction and to the judgment that confirms the agreement of the party. It is noted that, from a normative point of view, the party does not have an option right between the exercise of the action for annulment and the means of recourse against the judicial transaction. At the end of the study, the author analyzes some aspects of the recourse which can be exercised against the acts of divestment and acquiescence to the claims of the applicant. -
The current modality of regulating the institution of suspension can raise two categories of problems: on the one hand, problems of systematization of the matter, problems of qualification of the various cases of suspension as being of law, on the initiative of the employee, on the initiative of the employer or by the parties’ agreement, problems of drafting of suspension assumptions and problems of drafting of the regulation. On the other hand, the current regulation also creates difficulties of substance, which can lead to confusions and inconsistencies. Based on the consideration of the legislator’s option to group the different causes for suspension within the same chapter – otherwise a meritorious option –, this paper intends, however, to draft de lege ferenda proposals for the improvement of the regulation, both on the substance and in terms of form of the regulation. -
The current Civil Code advances a detailed regulation of the reparation of damage in case of tort liability, the most important matter of this institution. Being of deep impact in practice, the need for clarity of the new legal provisions is greater than in any other area of regulation. The study proposes their text analysis, emphasizing some shortcomings of the legal terminology used, of the systematization of the matter, but there are reported, in particular, some questionable solutions contrary to the European trends in matters of tort liability. -
The amendment of the fundamental law of a State is an extremely complex political and legal act with major meanings and implications in the political and State social system, but also for each individual. This is the reason why such a process should be well justified, respond to well-traced political and legal social needs and particularly meet the principles and rules specific to a democratic constitutional and State system, by ensuring the stability and functionality that this system needs. This study reviews the need for such a constitutional reform in Romania, as well as certain provisions of the Presidential Commission’s Report analyzing the political and constitutional regime in our country. The study also words opinions about the justification of certain new constitutional regulations. Against this background, it is believed that there are arguments in favor of maintaining the bicameral parliamentary system, and a potential revision of the Fundamental Law should take into consideration the measures necessary to guarantee the political and constitutional institutions specific to the rule of law and to avoid the ultra vires exercise of the State authorities’ duties. According to the author of the study, the scope of the Constitutional Court’s duties should be extended. -
This study examines the following issues: the legal nature of the survivor’s pension, the possibility of obtaining the survivor’s pension by a person, if his legal provider was also the holder of a survivor’s pension, how to calculate the survivor’s pension in case it is established, having as legal reference another survivor’s pension, the possibility of applying the correction index when establishing the amount of the survivor’s pension. The beginning of a relatively detailed legal analysis, in connection with these aspects presents a relevant degree of novelty for the Romanian legal literature, as neither the doctrine, nor the case law paid due attention to these problems, of indisputable theoretical interest and real practical utility.
-
Intellectual work originality is the essence of copyright. But in fact, the level of assessment for the condition of originality – in consideration of granting protection – is a sensitive, fluid, controversial, and interpretable issue, etc. In the light of international and Romanian copyright legislation, this study aims to clarify a number of difficult issues, controversies regarding the literary work’s originality.
