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The law amending and supplementing the Law No 254/2013, a law which has not been promulgated and has not entered into force, has been through a controversial legislative process, involving the disregarding by the legislative power of the effects specific to the decisions of the Constitutional Court, pronounced before the enactment of the laws, assisting in the delivery of three decisions of the Court with regard to the same law, by two of them being established the unconstitutionality of the law as a whole. Finally, as a result of the cessation by law of the legislative process, the only possibility of the legislative power to regulate the regime of home detention is represented by the start of a new legislative approach, this time in compliance with the principle of bicameralism. At the same time, the intrinsic analysis of the provisions regarding the regime of home detention has resulted in the identification of legislative gaps, of the lack of clarity of the legal nature of the institution, of the lack of precision and predictability in the process of applying the regime of home detention, as well as in the identification of numerous cases of legislative parallelism. In compliance with the legislative will to establish the regime of execution of the imprisonment sentence at home, the results of the intrinsic analysis have led to the formulation of some de lege ferenda proposals regarding the regulation of the regime of detention at home, by amending Law No 254/2013. -
Article 913 of the Civil Procedure Code regulates two situations in which the court executor will establish the existence of an impediment to enforcement: when the minor himself categorically refuses to leave the debtor, respectively when the minor has aversion to the creditor. Faced with either of the two hypotheses, the court executor will not put pressure on the minor (he will not use force, he will not abuse him), but he will draw up an official report, which he will communicate to the parties and to the representative of the General Directorate of Social Assistance and Child Protection, which will notify the competent court (the guardianship and family court) to order a psychological counselling programme appropriate to the child’s age as a protection measure necessary to avoid the child’s subsequent refusal on enforcement. The child who has reached the age of 10 will be mandatorily heard. According to the law, the psychological counselling programme can not exceed 3 months. After an initial psychological assessment of the child, the psychologist appointed by the court will determine the duration and content of the psychological counselling programme. Upon the completion of the psychological counselling programme ordered by the guardianship court, the psychologist draws up a report which he communicates to the court, to the court executor and to the General Directorate of Social Assistance and Child Protection. Whereas the starting point for the new regulation was represented by the presumption that the minor’s going through the counselling programme will lead to the change of attitude towards the creditor of the obligation, after receiving the report drawn up by the psychologist, the court executor will resume the procedure of enforcement, under the terms of Article 911 of the Civil Procedure Code, therefore in the presence of a representative of the General Directorate of Social Assistance and Child Protection and, if the latter considers it necessary, of a psychologist, and he may benefit, when necessary, from the assistance of the public force agents.
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The question of whether criminal liability can be engaged only in the case of the violation of a subjective right or whether it operates also when a simple legitimate interest is violated, without being enshrined as a subjective right, has always preoccupied the doctrine of civil law. The discussions were amplified on the background of the evolution of the law of the criminal civil liability, from a law oriented towards the sanctioning of the guilty perpetrator, to an indemnity law, increasingly inclined towards the interests of the victim who suffers from the unjust harming of his subjective rights, but also of the legitimate interests, those which, without being consecrated, cannot be tolerated by the legal order. The debate has become increasingly animated, in the context of the proliferation of claims that aspire to compensation, under the pressure of unprecedented diversification of human rights and fundamental freedoms, making traditional good morals increasingly relaxed. This explains the tendency of many modern codifications to include them in the broader concept of public order, as a component thereof. Even the French, known for their refusal, sometimes expressed manifestly, to adopt modern solutions, have agreed to reform their Civil Code, through the Ordinance on the reform of the contract law of 10 February 2016, by relating contractual freedom only to public order.
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The present paper aims to advance a number of shortcomings of current views on the Criminal Law’s Special Part and to argue in favor of a new concept, prescriptive and integrating, more appropriate to highlight both connections between the two parts of criminal law and between the said law and other fields of law, and the true object of study of law, namely legal judgments (or “value judgments”)
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This study examines the twinning of the rules and principles of the European Union law (Directive 1999/70 EC of 28 June 1999 enforcing the framework Agreement concluded on 18 March 1999 between the European social partners as regards work for a limited period of time) together with the national laws of certain European states (France, Germany, Romania) in the field of individual employment agreements concluded for a limited period of time. -
In this study, the author makes a relatively exhaustive analysis of the provisions of Articles 1221 to 1224 of the new Romanian Civil Code (Law no. 287/2009, republished on July 15, 2011 and effective since October 1st 2011) stressing the differences - substantive - between regulations on damage (as vice of consent) in the present Civil Code and in the previous Civil Code (of 1864). -
The legal liability is one of the main issues regarding the responsibility in administrative law. Therefore, the legal liability is able to exercise influence upon our society to some extent only by identifying the person responsible for ignoring the social values protected by law, in order to establish his/her liability. Let us stress upon the fact that the effectiveness of legal liability may determine, to a greater or a smaller extent, the establishment, re-establishment and even the survival of the rule of law. The society is more likely to take into consideration the legal liability, referring to the social and political background of these days, as well, if the liability is being applied to the civil servant or to an agent of public power, meaning a person who exercises a public function. What about the situation in which the person who is going to be held responsible for breaking the law and, therefore, being held liable for this fact is, directly or indirectly, even the creator of the law, being at the same time both part of the dominant fund and to the serviced/controlled fund? Does the above-mentioned situation supposes an antagonism in declaring responsible precisely the one who created the notion and, therefore, the premise of responsibility or, on the contrary, the antagonism would be precisely the irresponsibility of the entitled one, also, to create the right and to apply it, thus ensuring the protection of values, which establishes the base of its very existence?
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As of November 1999 to May 2011 the issue of strike was legally regulated by Law no. 168/1999 on the settlement of labor disputes, and in May 2011 by Law no. 62/2011 on social dialogue (which expressly abolished the provisions of the Law no. 168/1999 on strike). In this study, the author examines the new regulation on strike, highlighting both the provisions preserved from the previous law (no. 168/1999) and the new elements brought by Law no. 62/2011, highlighting, as the case may be, the positive or the negative aspects of Law. 62/2011. -
The paper presents some of the most important aspects of the individual employment contract nullity as it is set up by the regulations which are derogatory from the common law provided for in the employment law. In addition, it aims to highlight the extent to which the new regulation nullity in the current Civil Code (entered into force on October 1, 2011) would also apply to the individual employment contract, based on the rule that the provisions of the Labor Code is completed with the civil Code. The analysis performed is intended to lead to conclusions concerning the civil law rules relating to nullity, which, as they are not inconsistent with the specific employment relationship, shall also apply to the individual employment contract. -
Intellectual work originality is the essence of copyright. But in fact, the level of assessment for the condition of originality – in consideration of granting protection – is a sensitive, fluid, controversial, and interpretable issue, etc. In the light of international and Romanian copyright legislation, this study aims to clarify a number of difficult issues, controversies regarding the literary work’s originality.
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This study examines the following issues: the legal nature of the survivor’s pension, the possibility of obtaining the survivor’s pension by a person, if his legal provider was also the holder of a survivor’s pension, how to calculate the survivor’s pension in case it is established, having as legal reference another survivor’s pension, the possibility of applying the correction index when establishing the amount of the survivor’s pension. The beginning of a relatively detailed legal analysis, in connection with these aspects presents a relevant degree of novelty for the Romanian legal literature, as neither the doctrine, nor the case law paid due attention to these problems, of indisputable theoretical interest and real practical utility.
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The amendment of the fundamental law of a State is an extremely complex political and legal act with major meanings and implications in the political and State social system, but also for each individual. This is the reason why such a process should be well justified, respond to well-traced political and legal social needs and particularly meet the principles and rules specific to a democratic constitutional and State system, by ensuring the stability and functionality that this system needs. This study reviews the need for such a constitutional reform in Romania, as well as certain provisions of the Presidential Commission’s Report analyzing the political and constitutional regime in our country. The study also words opinions about the justification of certain new constitutional regulations. Against this background, it is believed that there are arguments in favor of maintaining the bicameral parliamentary system, and a potential revision of the Fundamental Law should take into consideration the measures necessary to guarantee the political and constitutional institutions specific to the rule of law and to avoid the ultra vires exercise of the State authorities’ duties. According to the author of the study, the scope of the Constitutional Court’s duties should be extended.
