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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. -
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.
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An attack on a moral right must attain a certain level of seriousness in order to attract the application of a sanction. When the exercise of a moral right, freedom of expression especially, interfere with the exercise of some other moral rights, in order to determine if the right was exercised with intention to harm or excessive and unreasonable, a fair balance exercise between two values which may come into conflict must be carried out under the proportionality test: if there is a public or private interest to justify the attain to the moral right of another person. In these cases, harmful events can occur even without author guilt. The application of national provisions which protects specific moral rights should not be used solely to determine whether or not there is a violation of the rights of personality, to determine whether or not the conditions of general tort law are fulfilled. The new national provisions can be useful to determine the proportionality of the sanction, and even for establishing non-material remedies when the specific conditions of general tort law are not fulfilled. There is a relationship of complementarity, maybe even subsidiarity between general tort law and the specific remedies of civil moral rights stipulated in the Civil Code. Conceptualizing moral rights regime by enactment of statutory moral rights as „civil subjective rights” with specific remedies aims to achieve a better moral rights protection. Essentially general tort law does not deny specific protection concided by personality moral rights.
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Undoubtedly, the most frequent contract used in practice is the sale and purchase contract, through which the alienation and acquisition of the property right and of other real rights is achieved, outlining the essential instrument through which the legal circulation of goods is carried out. The consent gives expression and materialization to the free will of the individual to contract and pre-contract, to assume a series of rights and obligations, to enter into legal relations. In this context, encountered with a special frequency in the current socio-economic reality – the preparatory agreements, as anticipatory manifestations of the consent in the matter of the sale and purchase contract, involve the same rigour of the conditions necessary for the valid existence of the consent. In all cases, what brings all these legal figures together into the patterns of a single legal institution is the main purpose pursued by the parties or at least by one of them, the one to enter, in the future, into a contractual legal relationship that gives full sati sfaction to the interest shown. As a consequence, the expression of the agreement of will determined by consent has known a double externalization, first through the previous form – the pre-contract – and subsequently through the contract itself. These two different moments, the period between them and the way in which they are legally related reflect some particularities and issues worth to be analysed in the broad spectrum of legal relations between persons.
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The new Civil Procedure Code, under the impulse of the case law of the European Court of Human Rights, has established for the first time, in the Romanian law, a procedural means intended to be an effective remedy for unjustified tendencies to delay trials: the contestation regarding the delay of the trial. The present approach was occasioned by a recent decision of unconstitutionality regarding the application of the provisions of Article 524 (3) of the Civil Procedure Code. In the introduction of this study, the author makes a general delimitation of the contestation by other procedural means, stating that it can be qualified neither as means of appeal, nor as a civil action or as a special procedure. The author emphasizes the contestation’s nature of procedural incident and of means to remove any obstruction in the settlement of civil cases in an optimal and predictable time limit. The control of constitutionality carried out by the Court concerns a very concrete aspect of the competence to settle the contestation. Through the analyzed decision, the court of constitutional control has appreciated that the settlement of the contestation by the panel notified with the settlement of the main action is likely to affect the objective impartiality of the court. In the present approach, the author considers such an action of the court of constitutional control as being judicious, but expresses reservations regarding the solution of attributing the competence to settle the contestation to the higher court. In justifying this point of view, the author notes also the existence of other similar procedural means the settlement of which is given, however, in the competence of a panel of the court empowered to judge the main action as well. On the other hand, the settlement of the contestation by the superior court is not likely to provide celerity in its settlement.
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The study analyzes the way in which the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of the law ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the court of first instance or of the court of appeal that was not challenged with a main appeal or review. In the opinion of the supreme court, it was considered that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code are not conditional on the filing of the incidental appeal/review or of the one provoked by the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to annul the judgment challenged under any aspect that is of interest to the respondent declaring an incidental or provoked appeal/review. The main argument for adopting this interpretation is the premise of regulating the incidental appeal/review.
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Considered indisputably as a keystone in any constitutional architecture based on respect for the fundamental rights and freedoms, the concept of human dignity presents certain difficulties as regards the effective legal consequences of its enshrinement in the positive law. It can remain a simple object of worship of a purely rhetorical adoration in the constitutional discourse or it can be depreciated, by instrumentalization, in view of some simple or minor objectives. In addition, the role that human dignity plays in the intellectual system of today’s secular civil religion should not be underestimated. This article briefly highlights these issues, with illustrations from the practice of some constitutional courts (the Federal Constitutional Court of Germany and the Constitutional Court of Romania) and from the debates in the specialised literature.
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The authors criticize the Decision of the High Court of Cassation and Justice No 13/2017 pronounced on appeal in the interest of the law, which had as its object the interpretation and application of the provisions Article 469 (3) of the Criminal Procedure Code which is called the Judgment of the request for reopening the criminal trial. The Constitutional Court decided that the decision of the High Court of Cassation and Justice No 13/2017 violates the right to a fair trial and the right to defence of the person.
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Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think.
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Potrivit prevederilor art. 1345 C.civ., „cel care, în mod neimputabil, s-a îmbogățit fără justă cauză în detrimentul altuia este obligat la restituire, în măsura pierderii patrimoniale suferite de cealaltă persoană, dar fără a fi ținut dincolo de limita propriei sale îmbogățiri”
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Potrivit art. 208 alin. (1) C.pen., fapta celui care, în mod repetat, urmărește, fără drept sau fără un interes legitim, o persoană ori îi supraveghează locuința, locul de muncă sau alte locuri frecventate de către aceasta, cauzându-i astfel o stare de temere, se pedepsește cu închisoare de la 3 la 6 luni sau cu amendă. De asemenea, la alin. (2) al aceluiași articol se prevede că efectuarea de apeluri telefonice sau comunicări prin mijloace de transmitere la distanță, care, prin frecvență sau conținut, îi cauzează o temere unei persoane se pedepsește cu închisoare de la o lună la 3 luni sau cu amendă, dacă fapta nu constituie o infracțiune mai gravă.
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The present study proposes for analysis some of the implications of the pandemic generated by the SARS-CoV-2 virus in the matter of the property right and not only, following to consider the property right in its broad sense, derived from the ECHR case law in the matter. As concerns the research hypothesis, the author starts from the premise that the inclination towards martyrology manifested throughout the history by our country determines that some particularly restrictive measures be adopted also in the context generated by the Covid-19 pandemic, the most often without a solid theoretical foundation. It is also considered, as a research hypothesis, that there is currently a trend worldwide towards authoritarianism and interventionism from the state government, which is reflected in the measures taken during this period in order to prevent the spread of the respiratory virus.
