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The national legislation on social security provides for different standard retirement ages for women and men, and this aspect does not contravene the principle of non-discrimination on the basis of sex in social security matters, enshrined in Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, nor the principle of equality of citizens, enshrined in Article 16 of the Romanian Constitution. However, failure to apply the more favourable age conditions, laid down for women, to people who have changed their gender identity from woman to man may give rise to discrimination on the grounds of sex. The rationale for maintaining different standard retirement ages is based on the socio-professional disadvantages of women in Romania in relation to men, so that being a woman during their working lives justifies the application of a lower retirement age, regardless of whether at the time of retirement, following the change of gender identity, the beneficiary of the pension is a man, and not a woman. As national law does not regulate this issue, it is for the national courts to interpret social security legislation in accordance with the principle of non-discrimination on grounds of sex. The existence of different standard retirement ages for women and men does not automatically lead to the de jure termination of employment relationships as a result of retirement at different ages, as Article 56 of the Labour Code regulates the possibility of termination of employment relationships, for both sexes, at the same age. Nor does the change in gender identity give rise to different treatment, on the basis of sex, on the date of the termination of employment relationships as a result of the fulfilment of retirement conditions. -
The active procedural quality in the direct guarantee action is one of the basic elements of the legal mechanism, regardless of whether we are talking about the active or the passive one. At first glance, we would say that the mechanism of direct action in general should not create too much discussion about its protagonists. However, in legal practice there has been a confusion about the subjects of the direct action, which has led to the questioning of the creditor’s active procedural capacity within the legal mechanism. Through this study, we are trying to shed some light on the practical application of direct collateral action, but also on the interest and procedural quality of the creditor and the debtor within the legal mechanism. Also, since the direct action in classic guarantee does not have a legal basis, unlike the direct action in payment, being derived from the notion of group of contracts, we will show why, in order to avoid contesting the procedural quality of the creditor within the legal mechanism of the direct action under warranty, the contracting parties must expressly insert a clause in the contract giving their consent to the transfer of the right of action to the sub-acquirer, in order to strengthen the transfer of the right of action under the guarantee for hidden defects. At the same time, as the direct action is an exception to the principle of relativity of the effects of the contract, the legislator is obliged to intervene, by introducing expressly some texts in the Civil Code, both in terms of the guarantee for eviction and in terms of the guarantee for hidden defects, so that the direct action in the guarantee finds its practical application. Only in this way will creditors be able to be protected from the effects of the exception of the lack of active procedural capacity, in terms of both guarantees provided by law (hidden defects and eviction).
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The study aims to analyze the situation in the domestic law of the application of the institution of transfer of undertaking in relation to the exigences of Directive 2001/23/EC as interpreted by the Court of Justice of the European Union. The premise of a correct interpretation and application of this institution is the knowledge of the essential aspects developed in t he case law of the Court of Justice of the European Union that analyzes the scope of application ratione materiae of Directive 2001/23/EC, among which are emphasized the distinction made by the Court between labour force-based companies and companies whose activity necessarily involves the exploitation of goods, as well as the autonomous meaning attributed to the notion of „conventional assignment”. Furthermore, the author shows that the regulation of the notion of transfer of undertaking from the domestic law restricts the scope of application ratione materiae of the Directive 2001/23/EC, non-compliant conditions being imposed, such as the transfer of the property right from the assignor to the assignee and the existence of a contractual link between the assignor and the assignee. The analysis of the judicial practice of the national courts and of the opinions expressed in the doctrine shows that a unitary point of view has not been outlined with regard to the possibility of applying the principle of conforming interpretation of the domestic law in order to ensure the full effect of the provisions of Directive 2001/23/EC. In a first opinion, it is argued that the full effect application of the Directive from the perspective of the scope of application ratione materiae can be achieved through a conforming interpretation of the domestic law which allows to leave the contrary internal legal provisions be disregarded, without thereby reaching to a direct application of Directive 2001/23/EC. According to the second point of view, the extension of the institution of the transfer of undertaking over the express normative content of the internal provisions, in the absence of any legal operation of assignment or merger, without having as object the property right, would be an interpretation contra legem. In compliance with the limits of the principle of conforming interpretation stated in the case law of the Court of Justice of the European Union, the conclusion supported by the author of this study is that the conforming interpretation of the national law is an effective remedy for the full application of the provisions of Directive 2001/23/EC. -
In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework. -
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The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces.
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Potrivit art. 52 alin. (1) C.pr.pen., instanța penală este competentă să judece orice chestiune prealabilă soluționării cauzei, chiar dacă prin natura ei acea chestiune este de competența altei instanțe, cu excepția situațiilor în care competența de soluționare nu aparține organelor judiciare, iar conform alin. (2) al aceluiași articol, chestiunea prealabilă se judecă de către instanța penală, potrivit regulilor și mijloacelor de probă privitoare la materia căreia îi aparține acea chestiune. Conform alineatului (3) al art. 52 C.pr.pen., hotărârile definitive ale altor instanțe decât cele penale asupra unei chestiuni prealabile în procesul penal au autoritate de lucru judecat în fața instanței penale (cu notă aprobativă). -
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Enforcement in kind of the obligation to do resulting from a synallagmatic promise to contract cannot be enforced in kind, a situation which determined the legislator to identify a substitute means to replace the actual enforcement and to produce the desired effects in the patrimony of the contracting parties. The present study aims to analyze the substitute remedy of the judgment replacing the contract from the perspective of the local judge, who is facing in the process of solving such requests with a series of specific procedural and substantial impediments. Aspects such as the legal nature of the obligation to enforce, the prescription of the substantive right to action, the referral to the arbitral tribunal, the legal nature of the action filed, the modality of designing the operative part of the judgment and others similar are key points of the study, and their analysis tries to determine such an understanding from the courts of law of this specific and special mechanism among the contractual remedies.
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Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity. -
This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
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The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
