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As by Article 24 of the Law No 140/2022 the legislator imposed on the National Authority for the Protection of the Rights of Persons with Disabilities and the Superior Council of the Magistracy obligations aimed at assessing the impact of this normative act, accompanied by possible proposals for its improvement, it is obvious that the legislator itself did not exclude that his legislative work does not constitute the masterpiece in the field. In this context, the present approach is intended to continue to emphasize, by the doctrine, some shortcomings of the Law No 140/2022 and to already propose a genuine reform in the matter. In the spirit of respecting the right to dignity of the persons with severe intellectual and psychosocial disabilities, a right that requires that a person who has acquired by law a full capacity of exercise should not be subjected to the degrading treatment of losing, totally or partially, this capacity, in the following we propose to be introduced, in the matter of capacity of exercise, the institutions of assisted capacity of exercise and of supervised capacity of exercise. Consequently, it required either the replacement of the institution of guardianship with the existing one, that of the personal assistant, as the case may be, of the professional personal assistant, or a specialization in the matter of guardianship, for such persons, of the sort of administrative guardianship. -
Active procedural quality and interest are essential conditions for promoting any action in court. The verification of the two conditions must be carried out from the outset, firstly, by the person or persons initiating an action in court and, secondly, by the court which is invested with resolving the action. The lack of one of the two conditions paralyzes the resolution of the action on the merits and attracts the rejection of the action, either as being introduced by a person lacking procedural quality, or as being without interest. It is not often that in the defenses formulated by the defendant the exception of the lack of active procedural capacity and the exception of the lack of interest are invoked at the same time. Concomitant invocation is often natural, as procedural quality and interest are two elements which, although not confusing, often justify each other. However, I have encountered in practice multiple situations in which the active procedural capacity has been justified by the applicant’s/applicants’ interest in promoting the action. On the other hand, there may be situations, less common in practice, in which the interest is justified by the procedural quality. Here that the two basic elements of any action or lawsuit are often indissoluble, and their concomitant treatment appears natural. That is why I considered it opportune to carry out a brief study on how the interest justifies the active procedural quality, with references to certain solutions encountered in judicial practice or to solutions that had as inspiration the invocation of exceptions, thus trying to argue which, on the one hand, the two exceptions are invoked together, most of the time and, on the other hand, why, in a particular way, the interest justifies the procedural quality. At the same time, the study includes a comparison between the situations in which the interest is analyzed as an exception and the situations in which the interest must be analyzed on the merits.
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Declaration of the unconstitutionality of the Article 164 (1) Civil Code provisions has determined the adoption, with an unjustified delay, of the Law No 140/2022 on some protection measures for people with intellectual and psychosocial disabilities and the modification and completion of some normative acts, which establish assistance for the conclusion of legal acts, judicial counseling and special guardianship, as well as a clear and flexible procedure for the establishment of these protection measures. Every person must be free to act in order to develop his/her personality, the state, by virtue of its social character, having the obligation to regulate a normative framework to ensure respect for the individual, the full expression of the personality of citizens, of their rights and freedoms, of the equal opportunities, resulting in respect for human dignity.
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The purpose of this article is to clarify the importance of respecting the limits of the medical specialty, the consequences arising from this, in terms of the nature of medical expertise. Nowadays, forensic expertise continues to be approached from an obsolete perspective, without detecting its limits in medical or legal matters. This article aims to analyze the relevant legislation regarding the limits and implications of medical specialties. Despite the abundance of specialized works in the field, it is still difficult to clarify the object of forensic expertise. The purpose of our analysis is to reveal the nature of the expertise that is carried out in trials where medical malpractice is being examined, whether it is the negligence of the doctor or the fault of the medical or pharmaceutical unit.
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Through this material we tried to identify the reasons that were the basis for the adoption of Article 1622 of the Civil Code, through which certain third parties are protected from the effects of compensations potentially prejudicial to their situation. After exposing some preliminary considerations regarding the institution of compensation, we set out to present the main hypotheses that would be subsumed under this legal provision. Along with their evocation, we tried to extract the interests predominantly protected by the legislator, which justifies the blocking of the compensation. We believe that understanding these cases is essential for the fair application of Article 1622.
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In this study, the author aims to present the relevant aspects of mediation, as an alternative means of resolving disputes that the parties may use by virtue of availability, highlighting both its advantages and the reasons why the law governing it has become increasingly less applied. In addition, there are situations in which the courts have been called to approve mediation agreements, but also the author’s opinion regarding the need to use the optional procedure, except for disputes in the field of family law, which should be analyzed by judges, who are the most able to pronounce solutions that correspond most faithfully to the best interests of the child.
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The study addresses a field of great practical interest, that of traffic contraventions. The perspective is one that combines in a balanced manner the doctrinal elements with the jurisprudential ones, the author proving a very good knowledge of the points of debate and of divergence in this matter. In the study there are included also elements that serve to differentiate the contravention from the offence, with references to the doctrine that has addressed this issue, but also the analysis of the most common differences of opinion, of interpretation and of application of the law. Among these there are: the forced intervention in the matter of the settlement of contraventional complaints, the balance between the presumption of innocence of the petitioner and the presumption of legality of the official report of the contravention, as well as the difficulties in establishing the judicial truth in the matter of contraventional complaints.
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The study briefly analyzes the status of the deputy mayor in relation to the status of the public administrator in order to debate a possible conflict between them. The similarities and differences between these two functions are highlighted. The delegation of attributions by the mayor is discussed from the perspective of the possibility for the mayor to appoint like substitute the public administrator during his vacation. There are three situations provided by law in which the deputy mayor becomes the legal substitute of the mayor presented in detail in the study: the vacancy of the position of mayor; the suspension from office of the mayor and the cases of impossibility to exercise the mandate by the mayor. In any other situation, there is no legal provision for the deputy mayor to become the legal substitute for the mayor. Two issues need to be debated in this context, namely: identification of the status of the public administrator in the public administration staff and like a consequence, the legal nature of the management contract concluded by public administrator with the mayor. Finally, it is argued the impossibility of suspending the addendum to the management contract, under the conditions of Article 14 of the Law on Administrative Litigation.
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An application of the new technologies has involved a modern regulation, and the European states have received the electronic form of the patient file and have transposed it into a relatively recent regulation, and the novelty of the problems and the strict dependence on the IT platforms have led to successive changes in the legislation, at the level of several states. Adjustments, correlations, adaptations took place at the law-technology border, in relation to the „physical” reality of the national medical system. The electronic health file does not have the role of replacing the „classic” file, in written form. The latter remains in the circuit of the health system and preserves its usefulness, and the medical act is not conditioned by the existence of an electronic file. From the DES perspective and for the usefulness of the approach undertaken, some guarantees of the protection of private life and personal data were verified. The secrecy of the data concerning health is no longer just a „privacy” between the patient and a limited number of people, but is „displayed” on an IT platform, to which several natural persons/entities have access, the technical access key (matrix, user, password) is entrusted to the users through the administrator, given that the Internet is an environment susceptible to the generation of security breaches. Granting access to the entire electronic file implies that the medical staff is aware of all the information and all the health problems of a person. The secret becomes a „shared” one and the central problem (of the patient) is the control – over the private life, over their own personal data, over the information that, otherwise, they would not want to be disclosed in a virtual environment. At issue is not only a balance between public interest (public health) and private interest or between personality rights that can end up in a conflicting position. If it will be proven that the interest of the medical care coordination prevails over the patient’s acceptance, then the electronic file will remain outside the true control of its owner. But, if, on the contrary, the patient has the prerogative of control (with justified, strict, limiting exceptions), then his right to limit access to the file will be recognized.
