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After the entry into force of the new Civil Procedure Code and of the new Criminal Procedure Code, the problem of the judicial institution of the liability of the State and of the magistrates for the prejudices caused by judicial errors still remains controversial and unclarified, further generating doctrinaire and jurisprudential controversies. In this context, this study intends, in relation to the current legal context, to make an analysis of a few controversial problems regarding the liability of the State and of the magistrates for the prejudices caused by judicial errors, aiming, in particular, at the forms of liability of the magistrates, the legal nature of the labour relation of the magistrates, the legal nature of the liability of the State for the prejudices caused by judicial errors, the procedure of engaging the liability of the State and the action for regress brought by the state against magistrates. -
As part of the legal culture, the judicial culture is particularly important in the activity of elaboration, interpretation and application of law, for the achievement of the values of the state of law. While the legal culture concerns the law configuration factors, the judicial culture expresses the aspects of the context of its application, having the administration of justice in its centre. The national traditions, the particularities of the positive law, a certain way of producing truth, the popular representation of justice and the flow of information and the legal ideas play important roles in crystallizing the content of the judicial culture and in expressing its specificity. Distinguishing between the internal judicial culture (including the attitudes, judgments, perceptions, values, etc. common to a group of law professionals) and the external judicial culture (expressed in the perceptions and in the imaginary of the society about justice), the author examines the content of the concept and analyzes its constitutive elements. The traditions, the forms of expression and the prospects of development of the Romanian judicial culture are analyzed from this general perspective.
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Dreptul european al achizițiilor publice reprezintă una dintre materiile cele mai armonizate din dreptul Uniunii1, atât din perspectiva normelor substanțiale, cât și a celor procedurale (căile de atac împotriva deciziilor autorităților contractante)2
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The article analyzes the facultative jurisdiction of the court seized with an application promoted by a judge, a prosecutor, a registrar, a legal assistant, who act as plaintiffs in an application for which the court where they carry on their activity has jurisdiction. The analysis focuses on the meaning and the interpretation of the phrase „court where they carry on their activity”. -
Within this study, the author has analyzed, in the light of the new Fiscal Procedure Code and also of the current one, the forms of the sanction of the fiscal obligation and the mechanism of their operation depending on the category of creditors that may be, on the one hand, the fiscal bodies, and, on the other hand, the taxpayers that are entitled to the refund or the reimbursement of some amounts from the public budget. Similarly, the author has made the necessary distinctions between the types of sanctions depending on whether the fiscal claims pertain to the central budget or to the local budget. Finally, the author has analyzed the modalities of granting the delay interests for the failure to refund the amounts from the budget due to the taxpayers depending on the cause which has generated these fiscal claims, respectively the fault of the fiscal bodies or of the taxpayers themselves.
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The tax administrative disputes, as a branch of the administrative disputes, a fundamental institution of the state of law, meant to protect and guarantee the fundamental rights and freedoms of citizens, becomes particularly important after the accession of Romania to the European Union. In this context, by the adoption of the new Fiscal Procedure Code, harmonized with the European acts in the matter, the fiscal processual rules which regulate the matter of the tax administrative disputes enjoy a greater clarity, quality and predictability. Starting from these desiderata, this study aims at analyzing the main amendments and supplements brought by the new Fiscal Procedure Code, in the matter of the tax administrative disputes, in relation to the provisions of the Fiscal Procedure Code in force.
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The following study concerns the causes of inadmissibility in the Romanian constitutional jurisdiction. Thus, after a series of preliminary considerations, the authors examine, in detail, in the light of the case law of the Constitutional Court of Romania, the following: – the causes of inadmissibility regarding the legality of the referral; – the causes of inadmissibility in connection with the authors of the referral; – the causes of inadmissibility referring to the motivation of the referral; – other elements related to the legality of the referral; – the causes of inadmissibility concerning the extent of the control; – the causes of inadmissibility referring to the jurisdiction of the Constitutional Court.
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The study reiterates, in other aspects, the previously conducted analysis of the autonomy of the labour law, having in view the preamble of a civil decision of the 7th Division for cases concerning labour and social insurance disputes, within the Court of Appeal of Bucharest. This preamble also states: „The provisions of the Civil Code have nature of general law, representing the common law in the matter of civil legal relations in a broader sense, a matter where the labour relations are also included.” This study shows that, if such a statement would be retained, this would mean to accept implicitly the inexistence of autonomy of the labour law. As a result, it briefly analyzes the main specific features of the labour relations compared to the civil ones, reiterating that the labour law is a mixed branch of law, autonomous, but not independent from the civil law, a component of the private law. The rules of the civil law apply, as rules of common law, only subsidiarily, in the absence of some specific regulations of labour law and unless this is contrary to the particularities of the legal labour relations.
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In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict. -
By critically analyzing the foundation of the civil contract, in light of the provisions of the current Romanian Civil Code, in relation to the modern Western European legal doctrine, and by insisting on some obsolete and/or contradictory legal regulations of the new Romanian Civil Code, the author of this study, on the one hand, considers that the principle pacta sunt servanda has presently become a myth, that we are witnessing the constant decline of the autonomy of will in matters of civil contracts and, at the same time, a series of new developments as regards the limits of the contractual freedom, the legal regulation of unpredictability in the new Romanian Civil Code (Article 1271) being relevant in this respect. Finally, the author believes that the current Romanian Civil Code (of 2009) contains a number of inconsistencies and contradictory regulations under the mentioned aspects, for which reason he proposes, in conclusion, the recast of the Code as soon as possible, taking into account the numerous failures thereof.
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The idea of this study has been inspired by obviously modest doctrinaire concerns in connection with the analysis of the legal regulations dedicated to the legal protection of „databases”. In fact, in the specialized literature, as a rule, the approaches usually do not exceed the level of reproduction of the regulations in the field or the subject is simply avoided. Probably this situation is determined, mostly, by the redundant style of wording the provisions of Articles 1221–1224 of the Law No 8/1996 on copyright and neighbouring rights and the provisions of Directive No 96/9/EC of the European Parliament and of the Council on the legal protection of databases. This normative situation should represent the spring of some normative doctrinaire measures deeply studied and it should by no means demobilize the analysis of the problems in the matter.
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This paper mainly includes a critical analysis of the provisions of the Law No 4/2008, made from the perspective of the political and legislative technique exigencies. Subsidiarily, the paper contains a presentation of the sports policy, as it is promoted by the European bodies and by most of the Western European states.
