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The article reviews the main features of digitization and its implications in the economic and social field. The technological perturbations on the economy, people’s conduct, medicine, law, psychology and education are significant. The author proposes the establishment of a National technical-legal laboratory, besides a faculty of law, and of a scientific event, entitled „Law and Digitization – Improving Legal Services”, to help improve access to justice in a digitized world. -
The object of the general part of criminal law and its relation to the special part are still uncertain, and this is because the criminal doctrine has always neglected the general criminal norms, by focusing its attention on the norms of incrimination, which are specific to the special part. In relation to these matters, the doctrine often makes contradictory statements and, as a result, some authors have deducted that the connection between the general part and the special part of criminal law is that of a general law (common law) and a special law (exceptional law), so that a possible conflict between a general criminal norm and a special criminal norm is solved according to the rule specialia generalibus derogant. And, unfortunately, such an opinion tends to become dominant, as evidenced by the fact that the criminal legislator disregards more and more frequently the norms with value of principles of branch, which are included in the general part of the Criminal Code. Therefore, in order to combat this completely unacceptable legislative practice, the author of this paper has intended to point out that the general part is a framework-law, with a higher legal value, while the special part is a (derived) subordinate law, which can only specify (clarify) the norms of the general part, but can never derogate from them. However, starting from this premise, the author has noticed that the persisting doubt about the relation between the two parties also has a deeper cause, which resides in the fact that no modern legislator has been preoccupied with determining and explicitly providing the general conditions and rules of punishment. Although the criminal doctrine has, for a long time, noticed that the norms of incrimination lay down special rules of punishment, the scope of which is limited to a specific, well-determined offence, however, in the absence of general rules of punishment, it has concluded wrongly, that the incrimination norms are autonomous independent norms, while general criminal norms are derived (secondary) norms.
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The present study analyzes the working hypotheses in the matter of the preliminary procedure regarding claims from European funds. The study identifies a number of working scenarios, starting from the particular way in which these claims arise, specific to European funding mechanisms. Another filter in the analysis is given by an irregularity in the management of funding, an irregularity that is treated differently as it appears before or after the payment, taking into account the variable, if it generates a debt to be recovered from the European Union budget/international public donors and/or national public funds related to them through an undue payment. Thus, the study observes a series of nuances in the hypothesis of undue payments, similar shades of contentious type to tax procedures1.
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New technologies, such as wireless communications, generate unique threats to human health and to the quality of the environment. Among them, electromagnetic fields (EMF) – of the relay antennas or power lines – represent a colourless, odourless and invisible pollution with adverse sanitary effects. As the technologies of the field are rapidly evolving, even before their negative consequences can be sufficiently researched and proven by science, they create difficulties for the ability of the right to adapt and respond appropriately to the new problems thus raised. Among the first legal reactions in the matter are those registered as regards the human rights, especially ECHR case law, which assimilates the EMF threats in the context of Article 8 of the Convention, involves the precautionary principle and imposes the notion of gravity threshold. The Case Calancea and others v. The Republic of Moldova (2018) represents an important moment in the opening of the Strasbourg court to the new problems of EMF and, despite the reluctance manifested by means of the judgment delivered, this implies a recognition of the existence and of the need for legal assimilation of new threats to human rights and the jurisprudential consolidation, in this context, of the right to a healthy environment.
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Curtea Constituțională a pronunțat recent o decizie asupra constituționalității art. III, pct. a) și b) din Ordonanța de urgență a Guvernului nr. 70/2016 pentru modificarea și completarea Codului de procedură penală și a Legii nr. 304/2004 privind organizarea judiciară, admițând excepția în privința pct. b), cu opinie separată. Anterior și în mod similar, Curtea a pronunțat o decizie de admitere a neconstituționalității art. 27 din Codul de procedură civilă astfel cum fusese el interpretat de Înalta Curte de Casație și Justiție – Completul pentru dezlegarea unor chestiuni de drept1. Considerăm că ambele soluții ale Curții ridică probleme legate de efectele în timp ale unor decizii ale sale pronunțate anterior în aceeași privință, probleme la care, de altfel, face referire și opinia separată publicată la prima menționată, deși nu suntem întru totul de acord cu aceasta din urmă.
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The recent Administrative Code (approved by the Government Emergency Ordinance No 57/2019) has taken over from the old regulation (the Law on local public administration No 215/2001), with some amendments, the rules regarding the function of public administrator at the level of communes, cities, municipalities, counties and associations of inter-community development. In this article, the author mainly considers the appointment of the public administrator by the mayor, the delegation of his attributions, including that of the main loan officer. Special attention is paid to the management contract (its object, the rights and obligations of the contracting parties, its duration and its cessation). Regarding the legal nature of the respective contract, the author’s opinion is that this is an administrative contract, of public law. Among the arguments considered the following are included: it is regulated by the Administrative Code; one of the parties is a public authority; its object consists in „coordinating some compartments of the specialized apparatus or of the public services”; it can be terminated (unilaterally) by the public authority. The end of the article is devoted to the triptych at the level of communes, cities and municipality, triptych consisting of the mayor, the deputy mayor and the public administrator. The idea is that the delegation of some of the attributions to the public administrator does not remove the competence of the mayor to exercise any attributions given by law in his competence.
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This paper aims to analyse the interconnectivity between the will of the donor and the general validity requirements for donations in the Romanian civil law. As part of the continental tradition of civil law, the 2009 Civil Code of Romania maintains the will theory at the forefront of its contract law. Within this framework, the legal concept of will encompasses the mental process of volition, during which the individual reflects and arrives at a decision, and the utterance of said decision. As a result, the notion of free will forms the foundation of contractual freedom. Through its gratuitous nature, a donation is both a contract and an act of liberality. As such, the legislator’s reluctance in the field of liberalities has influenced how the general requirements of validity were ultimately shaped. Liberalities are demarcated, from the volitional point of view, by the liberal intent of the donor, and from the economic standpoint, by the reduction of the donor’s patrimony. This impoverishment of the donor is the source of the legislator’s reluctance. Thus, our effort sets out to trace the influence of the liberal intent upon the general validity requirements of a donation contract. For this purpose, the present paper is divided into four main sections, corresponding to said requirements: cause, consent, capacity and object. While cause and consent derive naturally from the will theory, capacity and object were also subordinated to the liberal intent of the donor. As such, the common incapacity was entwined with a special variant which absolutely presumes the suggestion or captation of the donor’s mind. In regard to the object, the donor cannot dispose of the good belonging to another, unlike in the case of a sale contract.
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The direct action in the guarantee for hidden vices is still a new subject in the legal doctrine and especially in the Romanian judicial practice. At present, judicial practice has not committed such an action, although the issue has been debated, both in the doctrine of the old Civil Code, and especially in the doctrine of the new Civil Code. What is even more surprising is that the legislator understood to directly regulate such direct action in the case of the guarantee for eviction, without regulating it in the case of the cover for hidden vices. If technical and legal issues seem relatively simple in the case of direct action for hidden vices against a previous vendor or first seller, things get complicated when it comes to direct action in hidden vices against the contractor. The present study aims to identify the legal nature and the basis of the direct action in the guarantee for hidden vices against the contractor, thus establishing its admissibility criteria. By the arguments that we will render, we hope to contribute to the shaping of some defining elements of direct action that will facilitate its practical application.
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The present study aims to give an answer to the legal framework regarding the possible staff reduction followed by dismissal, measures that would have as sole purpose to increase the profit of the employer. Against the background of the ambiguity of Article 65 of the Labour Code, it is considered that such a measure is rationally possible only if the employer has a profit that is below the level of the average profit existing in the sector/field of activity (a situation that can be evaluated in relation to the financial data from the Trade Register Office and with the data that is published periodically by the Ministry of Public Finance). Only in such a case the condition of the real and serious cause is met.
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The verification of scripts is an incident in relation to the literal evidence, more precisely a procedure to which it is subjected a contested written document under private signature. The contested written documents under private signature may be subjected to a verification procedure either by principal way, by a preventive action, having exclusively such an object, or by incidental way, during a trial. The verification of the written document under private signature, by principal way, is admissible, under the conditions of Articles 359–363 of the Civil Procedure Code, if there was not or there is not a trial pending in which that written document had been opposed or is being opposed. Instead, the verification of the written document under private signature, by incidental way, is regulated in Articles 301–303 of the Civil Procedure Code, whose provisions are the object of this study. Article 301 of the Civil Procedure Code regulates the attitude that must be manifested by the person to whom such a written document under private signature is opposed, given that such a written document has no evidentiary power unless it is expressly or tacitly acknowledged or if it is declared as being truthful after being verified by the court.
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The judicial administrator will submit a monthly report containing the description of how he has performed his duties, an account of the expenses incurred with the administration of the procedure or of other expenses made from the funds existing in the debtor’s estate, as well as, if necessary, the stage of performing the inventory. The report will also mention the fee received by the judicial administrator, by specifying modality of calculation thereof. The report will be submitted to the case file and an extract shall be published in the BIP. Every 120 days, the syndic-judge will analyze and rule on the stage of continuation of the procedure, through a resolution by which he will be able to establish certain measures as duty of the judicial administrator and he will grant an administrative term of control or of trial, as the case may be. In the event that there are contentious or non-contentious applications, as well as in the hypothesis in which the syndic-judge deems it necessary, he will order the urgent summoning of the interested persons and of the judicial administrator, for the purpose of solving the applications or for ordering the necessary measures.
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The generation of public procurement directives1 adopted in 2014 supplemented the number of exclusion grounds from the contract award procedure, adding, inter alia, the hypothesis from Article 57 (4) (d): „where the contracting authority has sufficiently plausible indications to conclude2 that the economic operator has entered into agreements with other economic operators aimed at distorting competition”. The respective exclusion ground has been regulated in the public procurement directives as an optional ground, being however provided for the Member States the possibility to transpose it into national laws as a compulsory ground. This regulatory modality, which inexplicably restricts the scope of incidence only at the conclusion of agreements, although competition can be affected by other methods, and which allows different transpositions by the Member States, has led many doctrinaires to react critically to the prospect that such an important exclusion ground generate a relatively narrow and non-unitary practice at Union level.
