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In this article, the author proposes to analyze the place and role of the constitutional law in the legal system, starting from the object of regulation of its norms: establishing the modalities of organization and functioning of the state and, within these, the forms of exercising and transmission of the powers through democratic electoral procedures, as well as of the fundamental rights and freedoms of citizens. The constitutional law has received in doctrine a wide range of definitions in the doctrine, all authors emphasizing the quality of constitutional law to underlie the structuring of the national legal order, in the sense that all branches of law reside, at the level of general principles, in the constitutional law. The author states that the constitutional law norms are meant to protect and capitalize the most general interests of the society and of the state, as well as the fundamental values of a politically organized human community geographically located on a determined territory. Due to its structural role in the organization and functioning of the system of law, constitutional law sets guidelines for the other branches of law, takes over from these norms to which it is conferred the legal force of a constitutional norm and thus contributes to the shaping of a pyramidal hierarchy of norms of law depending on their legal force. At the bottom of the pyramid it is placed the Constitution, to which all the other norms of law are subordinated. The author also deals with the constitutionalization of the law, a process that results from the extension of the constitutional regulation of some social relations reserved by tradition to other branches of law. -
In the context of the amendments operated on the Administrative Disputes Law No 554/2004 by the Law No 212/2018, the author proposes to analyse the time limits in which the prior complaint can be filed and to analyze each of them separately, by grouping them according to the subject of the prior complaint and to the object of the prior complaint. The author makes the transition from the time limits imposed on the addressees of the administrative act to the time limits imposed on third parties, in the situation of the typical and assimilated individual administrative act, by investigating the length of the time limit, the moment from which it starts, the legal nature or the applicable legal regime and the sanction applied in case of non-compliance with these time limits. The main time limits within which the prior complaint can be filed are analyzed, special attention being given to cases where the prior complaint is not mandatory. Finally, the author emphasizes the importance of applying these time limits in just measure so that the prior complaint procedure does not become an obstacle, not related to the concrete situation, in the way of access to justice of the alleged injured party, nor it becomes an instrument of abuse.
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Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute. The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.). The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs.
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The article presents the continued offence from the perspective of the Decision No 368/2017 of C.C.R., presenting the history of the concept of continued offence and the elements characterizing this concept from the perspective of E.C.H.R. After an analysis of the opinions expressed, referring to the change in the legal classification of the continued offence, it is concluded that the change of the legal classification is required when one or more material acts were wrongfully included in the legal unit, although these constitute distinct offences, which are in concurrence, in intermediate plurality or in a state of recidivism with material acts that constitute continued offence. In case that, for one or more material acts, there is a case that prevents the exercise of criminal action, we consider that it is not necessary to change the legal classification, being sufficient that, by a minute, to order the acquittal or the termination of the criminal trial, and for the other material acts that continue to be a continued offence to have a solution of conviction, the postponement of application of punishment or renunciation to apply the punishment.
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The study is considered to be a valuable examination from a theoretical perspective of recent judicial practice, an examination which often shows argumented critical accents, all relating to the offence newly introduced in the Criminal Code in force since 1 February 2014, respectively the violation of the professional headquarters. One by one, illustrating concrete cases from the practice of the Romanian courts, there are identified difficulties arising from the interpretation and application of the norm of incrimination included in Article 225 of the Criminal Code. Such elements are the following: the notion of „headquarters”, the correct identification of the injured person or the adequate identification of the social value protected by the norm of incrimination. The study is valuable in that it argues the opinions expressed by consistently invoking some aspects included in the preambles of some decisions of the European Court of Human Rights.
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Faptul că autoturismul în litigiu a făcut obiectul mai multor vânzări succesive și s-a constatat că a fost furat, deschizându-se un proces penal împotriva autorului furtului, nu înseamnă că reclamanta își putea recupera prejudiciul constând în plata prețului plătit. În ceea ce o privește pe reclamantă, prin Ordonanța din data de 20 ianuarie 2015 a Parchetului de pe lângă Judecătoria Galați s-a dispus clasarea cauzei, reținându-se în motivare faptul că nu au fost identificate indicii care să conducă la concluzia că reclamanta ar fi cunoscut faptul că bunul era furat. Tot în procesul penal, prin Ordonanța din 27 august 2014 a Parchetului de pe lângă Judecătoria Galați s-a dispus restituirea autoturismului către proprietar, astfel că reclamanta, care devenise proprietara autoturismului în baza contractului de vânzare-cumpărare încheiat cu pârâtul, l-a predat organelor de cercetare penală, care în baza procesului-verbal din 16 septembrie 2014 l-au restituit proprietarului. În aceste condiții, în mod corect prima instanță a statuat că temeiul obligației a cărei executare este urmărită este contractual, iar, potrivit dispoziției art. 1695 alin. (1) C.civ., vânzătorul este de drept obligat să îl garanteze pe cumpărător împotriva evicțiunii. (Tribunalul Galați, Decizia civilă nr. 131 din 1 februarie 2018, definitivă)1
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With Marice Hauriou, in France, public law goes into the modern age. By his style, by the number and complexity of the themes he approached as well as by their exhaustiveness, this founding father of French administrative law – as we know it today – leaves behind a legal literature that, up to him, has only been able to provide sterile and purely descriptive commentaries of normative acts, modest works belonging to those that the modern history of public law labelled as of glossary or repertory writers. Hauriou is the one who, for the first time in the history of French administrative law, confers it the terminological and ideological substance for which it is highly appreciated by public law specialists today. Among the major themes that Professor Hauriou has approached in his work, the following are still outstanding, due to the accuracy and relevance of the analyses surrounding them, such as: – the administrative regime and the administrative function; – the institution and the institutional phenomenon; – the legal persons of public law, the public establishments and the establishments of public utility; – the public administration; – the public interest and the administrative management; – the public service; – the civil service and the civil servant; – the public property and the public domain; – the self-executing decisions or the unilateral administrative act; the administrative contract; – the administrative litigations; – the acts of government; – the discretionary power of the public administration; – the patrimonial liability for the public administration’s illicit acts; – the administrative police. Most of these themes have been systematically addressed by Hauriou, either by reference to the ideological foundation represented by the „public power”, or in relation to the notion of corporate institution, or in connection with the fact that administrative law groups rules with a derogatory nature from the rules of civil law, and legal persons under public law called upon to carry out the administrative function of the State are endowed with exorbitant prerogatives, the exercice of their duties being likely to result in a restriction of the freedom or the property of individuals. Surely, this risk – far from being totally eliminated – can be diminished, but only when individuals have effective tools to fight against abuses by executive authorities. According to Hauriou, an important place among these instruments is occupied by the so-called judicial review on abuse of power, a type of judicial action aiming at the annulment of unlawful administrative acts.
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The regulation of the Civil Code on periodic ownership was preceded by the Law No 282/2002 and by the Government Emergency Ordinance No 14/2011, which have transposed the European Directives concerning consumer protection with regard to the utilisation or time-limited use of movable and immovable assets. As a legal modality of the ownership right, the characters of the periodic ownership, although qualified by Article 646 (1) of the Civil Code, which refers to Article 687 of the Civil Code, as a form of forced co-ownership, is delimited by it. The present study outlines these elements of difference, the specificity of periodic ownership as real right, the rights and obligations of the co-owners in the exercise of the prerogatives arising from this quality. Periodic ownership is a particular case of forced co-ownership, of a temporary nature, because several people successively and repetitively exercise the attribute of use, specific to the ownership right, over a movable or immovable asset, at fixed intervals of equal or unequal duration. This form of ownership implies an overlapping of the real right of each co-owner over the entire asset, but whose use is limited during one year to the duration indicated in the ownership title. The critical aspects concerning the relations between the co-owners are cantoned to the provisions of Article 691 (2) of the Civil Code on the sanction of excluding the co-owner who, through his conduct, causes to another co-owner a serious disturbance in the exercise of the prerogatives of the periodic ownership right. -
The objective of this study is to nuance practical problems that may arise in the application of the provisions of the Civil Code in matters of the right of preference to tenancy. In the absence of some exhaustive legal norms (Article 1828 of the Civil Code making reference to the provisions of the right of preemption that must be properly applied), we consider that it is inevitable that in the hypothesis of a litigation there are no divergent interpretations which have as source unclear rules that govern this matter. We have focused, primarily, on identifying the compatibility of the provisions of the preemption right with that of the right of preference, being essential the correct interpretation of the phrase „properly”. We later pointed out the holders of this right and the conditions that must be met in order for this to may be exercised. More specifically, we have leaned on the analysis of a condition whose limits are not clearly laid down by the law: what does it mean the obligativity for the tenant to perform the obligations on the basis of the previous rental and whether the notion of non-performance also includes the delay in performing the obligations. In addition, we have analyzed the nature and moment from which the exercise of the right begins to run, considering that particular issues are raised by the notification which the lessor is obliged to send to the lessee in view of exercising the right of preference, since the moment of communication thereof is also the one from which the term of exercise of the right begins to run. We have identified two judgments expressing two fundamentally different views referring to what the content of the notification must be, analyzing the arguments of both courts and exposing our own point of view. Last but not least, in terms of the differences between the contract of sale and the one of tenancy, our approach has continued by pointing out how to exercise the right of preference, respectively of the amount of rent that must be recorded and the moment when the recording must be made – which, from our point of view, differs from those in the matter of preemption. We have concluded with the moment when the new rental agreement was signed, along with the effects it produces. We hope that this study will prove useful to be to practitioners in particular, as we have tried to answer questions and provide explanations where the legislation and doctrine have not done it so far, although the questions have already arisen in practice, imperiously requiring an answer.
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Information technology changed the way we relate to information as any data posted on the Internet can remain accessible indefinitely. On the one hand this ease of access undoubtedly was beneficial for the freedom of expression and information, but on the other hand the fundamental right to privacy of natural persons seems under threat in the absence of an adequate legal mechanism that would ensure that their past will not haunt them ad vitam aeternam. Last year, the French Council of State has requested the European Court of Justice (ECJ) for a preliminary ruling on the territorial scope of the right to be digitally forgotten. Although, since the Google Spain case, EU citizens enjoy an online right to be forgotten, its territorial application is yet to be determined. As such, this paper discusses the Opinion of the Advocate General in the Google Case (C-507/17), opinion which could offer a glimpse into the future ruling of the ECJ on this matter. In our analysis, we will also show the reasons why the ECJ’s decision is only a step in defining the right to digital oblivion, not at all an end point. -
The present study aims at analyzing the new legal provisions regarding the country’s minimum gross salary guaranteed in payment. Recently, through a series of normative acts, the legislator renounced the old approach to the regulation of the minimum gross national salary guaranteed in payment, setting minimum differentiated salaries for certain categories of employees. Thus, employees with higher education and those with a minimum length of work will have a higher level of salary compared to the minimum gross salary guaranteed in payment. Moreover, the legislator set a higher threshold for the minimum wage in the construction sector, which benefits the employees of this sector of activity. This change of optics requires an analysis of its legality and timeliness. In order to outline the conclusions, there will be analyzed the internal sources, the provisions of ILO Convention No 131/1970 concerning Minimum wage fixing, with special reference to developing countries, and similar provisions in the field of minimum wage in different states.
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The documents under private signature are an important category of preconstituted documents, characterized by the lack of formalism and the freedom of the parties to elaborate them. The form of the document under private signature is sometimes imposed by the law for the validity of the legal operation, and sometimes it is established ad probationem. In the cases where the written form is imposed ad validitatem, the legal document will not produce its effects envisaged by the parties upon its conclusion, unless it has been ascertained in writing. On the other hand, the non-compliance with the form of ad probationem generally brings about the impossibility of proving the legal act with another means of evidence. The written form may be an authentic document or a document under private signature. Also, the electronic document fulfils the condition of form ad validitatem or, as the case may be, ad probationem, if it was generated according to the provisions of the Law No 455/2001 on electronic signature. In principle, the only requirement for the validity of a document under private signature is the signature of the parties or, in some cases, only the signature of one of them. The signature expresses the will of the parties or, as the case may be, of the party to assume the contents of the document they have signed/he has signed. In the cases expressly provided, the legislator also imposes the fulfilment of some special conditions for the validity of the document under private signature. Thus, in the case of documents under private signature which establish the existence of sinalagmatic conventions, „plurality of copies” is required, and in the case of documents under private signature which establisg unilateral obligations (which have as object the payment of a sum of money or a quantity of fungible goods) it is required the formality or mention „good and approved for...”. The content of the document under private signature can be reproduced on any material support (paper, cloth, wood, metal, glass, CD, stick, etc.), in any form (handwritten, typed, printed, lithographed, electronic), in Romanian or in any other language or in a conventional language of the parties. Instead, the signature must be written by hand by the party or parties, not being allowed the typing, lithography or printing, or the replacement by a seal or by fingerprint. By way of exception to this rule, the legislator recognizes the validity of the electronic signature reproduced under the terms of the Law No 455/2001.
