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This study is meant to clarify the content and the meaning of legal norms devoted to the protection of databases. The author presents and subjects to analysis the points of view of prestigious authors and his own relative to the legal nature of the rights arising from the creation of databases. This paper examines the elements of the legal relationship arising from the database creation: the subjects, the object and the content of the relationship, emphasizing the particularities and the specificity that shape its identity. However, the topic discussed is connected to the European case-law in the matter, precisely to highlight the manner in which it is raised the question of the relationship between the protection of databases in the area of copyright and through the sui-generis right of the creators of these intellectual creations. The author analyses databases in order to underline the fact that they are man-made creations, with an important role in the economic and social life and are more and more frequently exposed to unfair competition. Moreover, the article also offers starting points for specialists called to study thoroughly less known aspects of the legal protection of databases. -
Examinând conținutul unei hotărâri pronunțate în cadrul regulatorului de competență în cazul unui conflict negativ de competență, se constată că aceasta nu soluționează fondul unei cauze, ci doar un incident procesual în care stabilește care din cele două instanțe va trebui să judece, potrivit dispozițiilor legale. Cum, în cazul analizat, titularul sesizării solicită interpretarea unor dispoziții procedurale în scopul determinării instanței competente teritorial să judece o cerere de încuviințare a executării silite imobiliare, se constată că stabilirea competenței nu reprezintă o chestiune de care să depindă soluționarea pe fond a cauzei. În consecință, se constată că mecanismul de unificare a practicii judiciare reglementat de dispozițiile art. 519 și următoarele din Codul de procedură civilă nu poate fi uzitat atât timp cât legiuitorul a limitat, prin condiția restrictivă de admisibilitate analizată, rolul unificator al instituției juridice a hotărârii prealabile numai chestiunilor de drept care conduc la dezlegarea în fond a cauzei sub aspectul statuării în privința raportului juridic dedus judecății. (cu notă critică)
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The article analyzes the qualification of the appeal on law in civil disputes where the judicial remedy of appeal ex novo is not opened, such as the waiver of judgment and the waiver of the claimed right, where the judgment is only subject to the appeal on law. The appeal on law promoted in administrative disputes is also analyzed. The author comes to the conclusion that, even when the judicial remedy of appeal ex novo is suppressed, the appeal on law preserves its nature of extraordinary remedy. -
This study analyzes the regulations pertaining to causes of revocation of donations, regulations which entered into force at the same time with the implementation of Law No 287/2009 on the new Civil Code. The starting point of this paper is the fact that donations and liberalities have been under the influence of special legal regimes, different from those of onerous legal documents. Even though donations are, in principle, irrevocable legal acts, the legislator has instituted special cases of revocation thereof, in order to avoid or limit prodigality acts and undesired effects on the interests of the donor or of the persons close to this donor. It was particularly on these causes of revocation of donations that the author focused his scientific endeavour, by analyzing doctrine and case-law and by formulating his own opinions and de lege ferenda proposals, so that legal rules in the examined area be harmonized with the public order interests. The study also relates to the new criminal regulations (the new Criminal Code) as regards the criminal acts of revocation of donations for ingratitude.
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The article analyzes one of the circumstances which prevents the conclusion of marriage, i.e. kinship. Following a brief introduction, the author focuses on impediments to marriage resulting from natural kinship, kinship resulted from adoption and kinship in case of medically-assisted human reproduction with a third donor. The final part is devoted to the conclusions which can be drawn from this study.
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The author criticizes a decision of the Bucharest Court of Appeal which, having to settle a case concerning dismissal determined by the dissolution of the workplace of an employee for reasons not related to him/her, stated that the dismissal is lawful even if it was not the position of the dismissed employee that was dissolved but another position of the same kind, but, on the other hand, it has decided that the measure in question is unlawful on grounds of not being „serious” since the employer (a ministry) has not proven the objective criteria that should support the seriousness of the applicant’s removal from the position held (the reason why the employee was not good enough or sufficiently trained in the profession in order to be maintained in activity or why the other employees maintained in activity were better suited, professionally or otherwise, as compared to the ones selected for dismissal).
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The new regulatory framework, established in the matter of accelerating the process of restitution of real estate properties and of the compensatory measures by the Law No 165/2013 on measures for the finalisation of the process of restitution, in kind or by equivalent, of the buildings abusively taken over during the communist regime in Romania, also includes some regulations concerning the cases and the modalities of cancellation of the titles of property issued by the county commissions of land resources. In the ambience of the new regulatory framework, this study analyzes the regulations established by the Law No 165/2013 in the matter of cancellation or change of titles of property issued by the county commissions of land resources, as well as in the matter of cancellation or of changing the decisions issued by these commissions, which stood as basis for the issuance of the title of property. The analysis of these issues has been made by reference of the provisions of the Law No 165/2013 to other provisions established by the Law No 18/1991, the Regulation for application of this law, as well as by reference to the special normative acts of reparatory nature.
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Given the absence of solutions expressly provided by law, national criminal courts now apply, with more courage and in the interest of justice, fundamental principles of criminal process as laid down by the Constitution, the Criminal Procedure Code and the practice of the European Court of Human Rights, which provides free access to justice, including judicial control on the acts of the prosecutor. In this context, the old adage „Justice is blind” may be replaced with a new concept, better suited to new national, European and international economic and social relations – „Justice is not always blind”.
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Pursuant to Article 1541 (1) b) of the new Romanian Civil Code, which entered into force on 1 October 2011, the court may reduce the amount of the penal clause if „the penalty is clearly excessive as compared to the prejudice which could have been provided by the parties upon the conclusion of the contract”. The author considers that the text is incomplete, in the sense that it does not specify whether the reduction of the penalties may be ordered by the court only on the debtor’s request (the system referred to in BGB – the German Civil Code) or also ex officio (a system presently regulated by the French Civil Code). The author believes that the reduction of the amount of penalties in question can not occur ex officio because fundamental principles of civil proceedings (especially the principle of availability) are violated. Finally, the author proposes an amendment of Article 1541 (1) b) of the Civil Code in order to be expressly stated whether the reduction of penalties occurs only on request or also ex officio. -
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.
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In this study the author has analyzed corruption from the perspective of its legal implications on the business environment. A notion which appeared at the same time with the economic changes became in time a truly global scourge which has systemically affected the economic exchanges, the financial flows, the market economy. It symbolizes, after all, the poor functioning of the state which makes considerable efforts to control the economic and financial crime. In this context, the author has identified corruption acts and measures to combat them, also emphasizing the constant efforts at both state and international level, in order to combat this criminal phenomenon.
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Dignity of human being is one of the most obvious and complex notions which lawyers had to study thoroughly in the last years. The complexity of dignity arises from its almost non-legal nature: dignity is a fundamental attribute of the human being or a postulate of civilization of which law should take note. It can not be conceived that dignity can be denied or that legal order ignore it. As an expression of human value, dignity tends to be confused with the notion of humanity. The presence of a principle of dignity in our legal order is undeniable; but respect for a person’s dignity can also reveal itself as a subjective right, as shown in Article 72 (1) of the Civil Code. Having in view the uncertainties arisen in the debates around dignity, the authors’ approach is an attempt to reflect, on the one hand, on the conceptual notion of dignity by the analysis of the object and of the legal nature of dignity and, on the other hand, on the functional point of view which allows to determine what dignity serves for; in other words, the functions of dignity and its practical applications. The regulation of the right to dignity in the Civil Code should be regarded as a timely novelty.
