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Art. 1100 dispune că creditorul nu poate fi silit a primi alt lucru de cât acela ce i se datorește, chiar când valoarea lucrului oferit ar fi egală sau mai mare. Acest text, care nu este de cât o consecință a art. 9691 și a interpretărei voinței părților, reproduce No. 530 din obligațiile lui Pothier: «Obicinuit, zice acest autor, nu se poate plăti de cât lucrul datorit; și debitorul nu poate să oblige pe creditorul său a primi drept plată alt ceva de cât ceea ce i se datorește.» «Aliud pro alio, invito creditori, solvi non potest.»2 «Nici creditorul, zice art. 1862 din Codul Calimach (1213 C. austriac), nu poate fi silit să primească împotriva voinței sale alt ceva, fără de cât aceea ce are dorit să ceară, nici datornicul nu este îndatorit să dea sau să facă alt ceva, fără de cât aceea ce este dator să dea sau să facă. Aceasta are tărie și pentru vremea, când, și pentru locul, unde, și pentru chipul cum are să se împlinească îndatorirea.»3 -
In respect of the contract of transport, the provisions of the new Romanian Civil Code in the matter (Articles 1955–2008) have the nature of general law, which, as the case may be, is supplemented by the special legislation, specific to each type of transport (rail, naval, road, air). Considering the above, this study makes an analysis of the provisions of the new Civil Code referring to a limited aspect, namely a summary on the rules of this Code, with reference to the civil-contractual liability of the transporter in the contract of transport of goods. -
This study deals with the problem of the judicial remedy and of the time limit for exercising it in case of the rejection on the merits of the application for establishing guardianship. The analysis is carried out from the perspective of the civil procedural provisions which regulate the procedure for settling the non-contentious applications.
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The area of significance of certain terms used in the Constitution is quite diverse and therefore we cannot be precise about their content, especially when the semantic perception of those terms is not purely legal. Terms, as „homeland”, „nation”, „nationality”, „people”, „national minorities”, „national identity” or „ethnic identity” don’t have at first sight an explicit constitutional significance. The content of these terms evolves with the dynamics of the population. Moreover, some of these terms have a specific meaning in some cultural systems and another meaning in other civilizations. Therefore, they should be explained according to the corresponding social realities, political culture and traditions of the population or community of citizens to whom they will apply.
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This study analyzes the rules within the Romanian labour legislation referring to the attributions of the trade unions in correlation with those of the elected representatives of the employees. It is concluded that there are, in this matter, legal solutions obviously uncorrelated, major errors, unjustified exclusions from the exercise of some attributions of the representatives of the employees in favour of the trade unions. All these despite the fact that, in terms of essential competences – either of the trade unions or of the representatives of the employees –, the legal solutions are identical. In relation to these findings there are made a series of proposals to improve the labour legislation which have as objectives to clarify the role and to state the attributions of the trade unions and of the representatives of the employees in the conduct of the labour relations.
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Within this paper, the author makes a brief review of the background, respectively of the grounds of the Decision No 363/2015 of the Constitutional Court, and afterwards he stops to analyze the effects of this decision on the criminal trials ongoing at the date when the mentioned decision is pronounced. In relation to the exigences imposed by the principle of legality of incrimination and to the fact that the text declared unconstitutional has incriminated for the first time a certain conduct as an offence, the failure to reconcile, within the legal time limit, the incrimination text with the provisions of the Constitution of Romania, republished, has the value of a decriminalization.
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Finding the truth in the criminal trial sometimes requires the hearing as witnesses of some persons who know of factual elements referring to the object of the case. In order that the statements given by these persons should not be influenced by factors of pressure exercised on them, the criminal processual legislation has also instituted some special measures to protect the persons that are going to be heard in this capacity in the criminal trial, being also created special categories, such as the category of threatened witness, of vulnerable witness and of witness included in the witness protection program. This study deals with the transitory situation arisen after the entry into force of the new Criminal Procedure Code where the witness, to whom the status of witnesses with protected identity in the criminal prosecution phase has been granted in accordance with the provisions of the previous Criminal Procedure Code, is heard in the trial phase after the entry into force of the new Code.
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In a more and more obvious „global legal space”, the legal culture – understood as a set of knowledge, creations and forms of expression of law – undergoes fundamental changes and major developments. By rejecting hegemony in favour of hybridization, the realistic perspective involves a „cross-over” of the legal systems, concepts and cultures and calls for important mutations on several levels. Starting from such appreciations, the author analyzes the trends and the prospects, in this context, of the education and of the research of law, doctrine, legal science and deontology of the legal professions in Romania.
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As subject of public international law, the European Union is committed not only to observe, but also to develop the public international law and, within this framework, it is established the principle of equality between the Member States, within the limits of the treaties of the Union. The institutional structure of this intergovernmental international organization and the procedure of adoption of the legal acts reflect a nuanced equality between the Member States, which however emphasizes the specificity of the Union. „United in diversity”, a motto to which, according to the Declaration No 52 to the Treaty of Lisbon, not all Member States have subscribed, the European Union promotes an enhanced integration and a political cooperation in which the States act in accordance with the Treaties and, in certain cases, for the purpose of supporting the national interest. The transfer of competences from the States to the Union was achieved gradually, with the economic and political evolution at national and international level, pursuant to the state sovereignty. Equality between states within the European Union is a principle whose application in the current European and international context might reflect a new approach of the European integration and positioning of the Member States within the Union.
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In this study, the author analyzes the provisions of the Romanian Civil Code (the Law No 287/2009) referring to the matrimonial convention (Articles 329–338 and Articles 366–369). Therefore, there are examined the provisions on: the notion; the principles of the matrimonial convention; the legal characters; the conclusion of the convention – the conditions on the substance and the form of the convention; the date of conclusion and the date from which it produces effects; the caducity, the simulation and the nullity of the matrimonial convention; the object of the convention; the publicity of the convention and its amendment. -
The Romanian Labour Code (the Law No 53/2003, republished on 18 May 2011) provides, in Article 38, that „Employees may not waive the rights recognized to them by law. Any transaction which aims at waiving the rights recognised by law for the employees or at limiting such rights shall be null.” The author starts from the premise that this legal text, which could also be found in the previous Labour Code (Law No 10/1972), should be reconsidered, however, in the light of the social order of today, of the principles and of the requirements of the market economy and of the dynamics of the labour relations and of the labour market. Considering the above, the author formulates, in accordance with the Romanian labour law doctrine as well, a flexible interpretation of Article 38 of the Labour Code, also taking into account a series of texts of the new Romanian Civil Code, which entered into force on 1 October 2011, by rallying, at the same time, to a number of de lege ferenda proposals elaborated in the labour law doctrine over the last years.
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The author of this study, starting from the premise that both the employees of public authorities/institutions (who carry on their activity based on an individual labour contract), as well as the civil servants of these budgetary structures (who carry on their activity based on a job relation) have a legal labour relation each, comes to the conclusion that the present jurisdictional system regarding the labour conflicts (the disputes) of the two categories of personnel mentioned (the labour conflicts of the employees of the public authorities/institutions are settled by the labour jurisdiction courts, while the same type of cases, in case of civil servants, fall within the jurisdiction of administrative disputes courts) is obviously unnatural and discriminatory. This being the case, it is proposed the unification of the jurisdiction in this respect, in the sense that both for the employees of the public authorities/institutions and for the civil servants in their service, the competence to settle the labour conflicts is going to pertain to the labour jurisdiction courts.
