-
The concepts with which the theory of law operates are far from being the result of some philosophical speculations, without any connection with the concrete relations of the social life. Although eminently deductive, the science of law, as a whole, does not operate only deductively, without reference to facts, data of reality. In last analysis, the theoretical constructions formulated by the science of law (or legal sociology) are the result of a succession of inductive and deductive steps. A good knowledge, explanation and interpretation of law (of the legal phenomenon, more broadly) requires an appropriate methodology, based on which to achieve a scientific understanding of the mechanism of the social action of law, its functions, essence, content and form. In the conditions of the current scientific and technological evolution, there are happening profound transformations – of structure, of method, of vision – which determine that also the scientific research go through a fruitful mutation. From this methodological perspective, the author aims to address some essential aspects of the structure of law. -
The 150th anniversary from the issue of „Dreptul” magazine, edited by Societatea Juridică (1871), the first representative publication, with a „programme” in the matter, represents the occasion to review the evolution of the juridical literature as vector of the science and culture of law in Romania, to capture its current state and to prefigure the perspectives of development. The juridical press has emerged and developed in our country as a tool for promoting knowledge of law, through the dissemination of the case law, the affirmation of the doctrine and of the dialogue of ideas. After an initial period marked by the spirit of imitation related to the massive legislative import that characterized the establishment of the foundations of the Romanian juridical modernity after 1859, the interwar juridical unification (judicial, constitutional-legislative, at the level of the regime of juridical professions and of the juridical higher education) favoured the transition to its own literature in the field and a national juridical culture with strong original and identity accents. Marked by a certain eclipse and by a perspective „planned” between 1949–1989, it experienced a strong recovery after 1990 by resuming its issue in new editions, along with Dreptul, and of the other two landmarks genre: Curierul Judiciar (founded in 1892) and Pandectele Române (since 1921) and the issue of new ones, currently facing the low tide and the unexpected challenges of the accelerated digitalization and neoliberal globalization.
-
This study examines the manner in which the Romanian Constitutional Court has used in its practice the principle of non-retroactivity of the law with reference to service pensions. At the same time, the study contains a detailed critical examination of the thesis of the constitutional contentious court regarding the qualification of the laws amending or repealing the service pensions already in payment as non-retroactive and, therefore, in compliance with the constitutional requirements. On the other hand, the author of the study advances the thesis according to which any law that modifies the formula of calculation of the service pensions in payment, including by resorting to the extension of the contributivity rule, is retroactive and, consequently, unconstitutional. In substantiating this statement, there are initiated a series of considerations regarding the defining elements of the right to pension, the theories regarding the earned rights, as well as the development of a detailed analysis of the concept of legal effects produced during the application of another law (new law).This study examines the manner in which the Romanian Constitutional Court has used in its practice the principle of non-retroactivity of the law with reference to service pensions. At the same time, the study contains a detailed critical examination of the thesis of the constitutional contentious court regarding the qualification of the laws amending or repealing the service pensions already in payment as non-retroactive and, therefore, in compliance with the constitutional requirements. On the other hand, the author of the study advances the thesis according to which any law that modifies the formula of calculation of the service pensions in payment, including by resorting to the extension of the contributivity rule, is retroactive and, consequently, unconstitutional. In substantiating this statement, there are initiated a series of considerations regarding the defining elements of the right to pension, the theories regarding the earned rights, as well as the development of a detailed analysis of the concept of legal effects produced during the application of another law (new law).
-
The present scientific approach has as object the notarial activity and its development between the medieval moment of the imperial or papal authorisations and the era of artificial intelligence. Thus, the author approaches the role of the medieval notary in Transylvania, emphasizing the procedural or substantial aspects of notarial documents, presents the graphic elements of their notarial seals, but also succeeds in analyzing from the same perspectives the activities of the contemporary notary, the impact of new technologies and of the digitalization on this activity.
-
A holistic analysis of a branch of law often tends to assert its autonomous character and to confirm punctually particularities, exceptions and derogations. Starting from this premise, an inventory of the financial law institutions reveals, indeed, the same autonomy. A closer analysis reveals unsuspected, masterfully built networks of communication between the financial law and the other branches of law. This communication is not eminently delimitative, but confirms our intuition announced in the title of the transversal vocation of the financial law. This conductive behaviour is confirmed on a horizontal axis, related to the national normative space, but also on an extremely consistent vertical axis in the normative framework of the European Union.
-
The study tries to identify, with jurisprudential examples, the situations in which the moral rights of the author no longer have the desired finality at the time of regulation, being used in this sense historical perspectives and comparative law perspectives. In a first part it is presented the evolution of the moral rights from the case law and doctrine to the enactment. The second section analyzes, from a jurisprudential perspective, the effectiveness of the right to respect the integrity of the work, concluding that the diversification of the modalities to create works that can be protected by copyright has exceeded the relevant regulation. A final analysis concerns the situation of exercising the right of withdrawal in the case of written works. The conclusions bring proposals to improve the mechanism of functioning of the author’s moral rights.
-
The 1995 UNIDROIT Convention in Rome established a minimum body of common legal rules for the protection of cultural heritage. The essential rules of the Convention are: 1) the possessor of a cultural object which has been stolen shall return it; 2) access to justice by filing a request with the court or other competent authorities of the Contracting State where the cultural property is located, for its restitution; the possibility for the parties to submit their dispute either to a court or other competent authority or to arbitration (Article 8); 3) the right of the bona fides holder of the stolen cultural property to be paid, at the time of restitution, a fair compensation; the correlative right of the paying claimant to request reimbursement from another person (Article 4).
-
Resulting from the frontal collision of two criminal law systems at the level of the legislation, theory and practice of criminal law, the crisis of the (science of) criminal law in Romania is a crisis of the „technical-legal method”. This crisis resulted from the lack of thoroughly analysing the foundations of this method configured in terms of general juridical theory in the context of the Historical School of Law from Germany, received in the particular matter of the theory of criminal law thanks to the contribution of the Italian criminal specialists (Arturo Rocco) and which became a traditional method of the Romanian science of criminal law due to its reception in Italy by Vintilă Dongoroz. In the broader plan of the general theory of law, the same crisis proves to be a crisis of the idea of science of law, explicable by the vicissitudes of the reception of the Historical School of Law in Romania over the last 150 years.
-
În cazul în care clientul este o persoană juridică atât încheierea contractului de antrepriză, cât și recepția trebuie realizate de organele de administrare ale respectivei persoane juridice, având în vedere că exercitarea capacității de exercițiu se realizează prin intermediul acestor organe, astfel cum se prevede prin art. 209 alin. (1) C.civ
-
Prin cererea de chemare în judecată adresată Judecătoriei Constanța la data de 11 iunie 2018, contestatorul S.P. în contradictoriu cu intimata Direcția Generală Regională a Finanțelor Publice Galați – Administrația Județeană a Finanțelor Publice Constanța a solicitat instanței să dispună anularea executării silite înseși și a actelor de executare silită subsecvente, inclusiv Somația din data de 30 martie 2018 și Titlul executoriu din data de 30 martie 2018 emise în Dosarul de executare xx, respectiv să oblige intimata la plata cheltuielilor de judecată.
-
The present study begins with the analysis of the texts of Article 630 of the Civil Code, where there can be found the legal relevant provisions, followed by some considerations regarding the origin of the civil liability for the abnormal neighbourhood inconveniences under the influence of the old Civil Code. Furthermore, the author appreciates that, at present, from the economy of the texts of Article 630 of the Civil Code, it results that the civil liability in question is of two types: reparative and preventive. Further on the scope of this liability is circumscribed. For this purpose, on the one hand, it is established the sphere of the persons between whom it can be engaged, and, on the other hand, there are determined and qualified the neighbourhood inconveniences that can generate it. An important and ample space is conferred to the analysis of the conditions that must be met for the existence of this liability, as well as to the detection of its theoretical foundation. Thus, in the reparative variant, the existence and the engagement of civil liability requires to cumulatively meet three conditions; two of them are the general conditions of any reparative civil liability – damage and relation of causality – and a special or particular one, which is the abnormal neighbourhood inconvenience caused to the victim, directly or indirectly, personally or by another, by the owner or owners of one of the neighbouring buildings. Therefore, it can be easily established that the fault or guilt, proven or presumed, of the neighbouring owner or of other persons, who exercise the attributes of the property right, over or beyond its normal limits, is not a necessary condition of engaging this reparative civil liability. Consequently, the problem of the theoretical foundation of liability is also solved legislatively, in the sense that we are in the presence of an objective civil liability, without the guilt of the liable person or of other persons, according to Article 630 (1) of the Civil Code.
-
The official proclamation of the climate emergency (at an international, European, and national level) has stimulated the concerns and efforts to regulate and adopt public policies aiming for mitigation of, and adaptation to climate change. Initiated in the name of the principle of precaution – scientific uncertainty regarding the anthropic causes do not justify the inconsideration of the phenomenon, but they impose taking progressive and proportional measures – 30 years ago, the process of development of climate law has already known three successive and progressive stages, configured around three major international acts. The Framework Convention on climate change (1992) has generated a general normativity, as a guideline and non-binding; the additional Kyoto Protocol (1997), with a superior legal force, provided precise targets and determinate periods of time to reach them; finally, the Paris Agreement (2015) has marked the phase of voluntary commitments and of adequate instruments, varied in their means of enforcing. Characterized by a dependency and a major interconnection with scientific data, climate law is inspired by a series of fundamental concepts (general interest of humanity, environmental transition, the rights of future generations, global approach), and it is dominated by a series of general principles (precaution, common but differentiated responsibility, the right to a stable climate), affirming itself as a law of the present day, but especially of the future. Assuming the Green Deal as a new strategy for growth of the EU (2019), of the law for climate (2020) and the return of the USA to the Paris Agreement (2021) re-launch the multi-lateral framework for negotiation and international regulation in this field, opening ample perspective for affirmation of the new legal regime and the innovative scientific field.
