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This paper analyses judicial limits of property in national legal context, where this kind of property limits are relatively young comparing to the legal limits, which are clearly delimited. The study begins with brief comparative law on similar English, French, and Canadian regulations, continuing by presenting the doctrinal divergence on the foundation of civil liability for abnormal inconveniences of good neighbourhood. The study shows different points of view from doctrine on the fundament of civil liability for causing inconveniences by exceeding the reasonable boundaries of neighbourhood. The paper focuses on differentiating between abuse of right, tortious civil liability and extra-contractual liability, proposing the last one as the fundament of civil liability for causing abnormal inconveniences that bothers the relations of good neighbourhood. Also, it is brought into discussion the meaning of „owner” to which Article 630 of the Civil Code refers, and the implications regarded by giving a restricted meaning to this notion used by the legislator. Still, the French doctrine and the European Court of Human Rights Jurisprudence is orientated to a broad interpretation of this notion. -
The present analysis is justified by the challenges generated by the regulation of the normative framework of public power intervention in the management of some new social realities, with a direct impact on the state-citizen relations, in the context of the COVID-19 pandemic. Undoubtedly, some measures established by the Law No 136/2020 on the establishment of some measures in the field of public health in situations of epidemiological and biological risk, taken most often with celerity, will be subject to the control of legality of the courts of law. It would be absurd for acts that ultimately affect fundamental rights and freedoms not to be subject to the means of appeal and not to pass through the judge’s filter, the latter being the one who will, actually, decide on the fairness of the measure adopted. At the boundary between the analysis of the legality and the appropriateness of the measures adopted by the competent authorities of the state, the court of law will have to rule so that both the citizen, viewed individually, and the community feel safe in front of a threat that humanity never faced before. From this analytical perspective, the authors intend to address the issue of the possibility to invoke in court the exceptions of illegality in the context of the provisions provided by Article 17 of the Law No 136/2020.
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Legal separation („separația de corp”) is a quasi-divorce, which does not lead to the dissolution of the marriage, but produces certain legal consequences on personal and patrimonial relations between spouses. Based on religious motivations, legal separation is the compromising solution adopted in states of Catholic religion, in which marriage is seen as an indissoluble and perpetual bond. Although known in several Member States of the European Union (EU), legal separation has meanings, conditions, procedure and effects that differ from one state to another. In Romanian law, the institution of legal separation is not regulated. The Orthodox religion, predominant in Romania, rejects the dogma of the indissolubility of marriage and allows divorce. However, in the Civil Code, among the provisions of private international law there is a rule indicating the law applicable to legal separation. The use of the notion, which is otherwise singular, is not accompanied by a definition or explanation of the term. In the European regulations (the Regulation Brussels II bis on jurisdiction1 and the Regulation Rome III on the applicable law2 ), directly applicable in Romania, two similar notions are used, those of „separare de drept” (legal separation) and of „separare de corp” (separation of body).
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Factoring is essentially a hybrid commercial operation that covers the elements of several legal mechanisms, the most common elements being borrowed from the debt assignment mechanism. However, the legislator did not consider it necessary to establish this legal operation in the contracts covered by the new Civil Code. Moreover, factoring does not currently benefit from any express regulation in Romanian law. Although, in the Romanian doctrine, we find references to a possible direct action of the factor against the assigned debtor, the situation of this action is uncertain. In this sense, we considered it opportune, but also necessary to formulate a brief analysis of what the factoring operation means in general, as well as to establish whether or not the factor’s action covers the elements of a direct action. In the Romanian doctrine and legislation we find only fragments of texts regarding the factoring operation, therefore, an exhaustive analysis regarding the application of factoring and even more so of the factor’s action cannot be performed. However, we hope that the brief explanations we will bring will lead to an outline, at least general, of the factor’s action against the assigned debtor.
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Reflections on the moral and legal status of the animal, its cognitive abilities, its differences, essential or not, with humans, have nourished human thinking since ancient times; source of debate also today are a lot of questions: can we kill animals, we can eat them, we can use them in our activity, both in the field and in laboratories, do animals have rights, are they subjects of law? Ever since Roman law, the animal was considered from legal point of view, considering only the faculty of man’s appropriation as a subject of law; the main status of animal remains that of reification, their interests being most often ignored for the benefit of humans’ interests. This status embraced by doctrine, praised legally throughout the different civilizations and which has lasted until today, could be maintained by virtue of the „natural” power of human domination exercised over the rest of living beings also through the Cartesian animal–machine theory, which was translated into law by the animal–thing theory.
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The interpretation and the application of the provisions of Article 31 (3) and Article 60 of the Labour Code have led to the existence of a non-unitary judicial practice and to the expression of some divergent positions in the doctrine as regards the applicability of the temporary prohibitions on dismissal in case of termination of the individual labour contract at the initiative of the employer, during or at the end of the period of probation. In a first doctrinal and jurisprudential orientation it is argued that Article 60 of the Labour Code is not applicable, because we are not in the presence of a dismissal, but of a separate case of termination of the individual labour contract at the initiative of the employer. The second opinion argues the thesis according to which the termination of the individual labour contract at the initiative of the employer during or at the end of the period of probation is also a case of dismissal, the legislative derogations aiming only at simplifying the dismissal procedure during the period of probation, and not at removing the temporary prohibitions on dismissal provided by Article 60 of the Labour Code.
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The article, a continuation of the study with the same title published in the previous issue of „Dreptul” magazine, presents in detail the minority point of view expressed within the civil procedure collective of the Faculty of Law of the West University from Timișoara, according to which the object of the incidental or provoked appeal/review may be the grounds or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they have been challenged or not by means of the main appeal/review
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The study addresses the issue related to the offence of family abandonment, in the version provided by Article 378 (3) c) of the Criminal Code, which consists in the non-payment, in bad faith, for 3 months, of the support pension established in court. In particular, the aim is to clarify the meaning of the phrase „committing the act”, designated as indicating the moment when the time limit from which the period for filing the preliminary complaint begins to run, as the legislator has chosen to exempt this offence from the principle of compulsoriness of setting in motion the criminal action. The conclusions reached are in the sense that the phrase „committing the act” implies nuances in the matter of continued offence, as it is the one of family abandonment, otherwise the solution being one that would implicitly modify the content of Article 296 of the Criminal Procedure Code.
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La data de 1 martie 2020, Parchetul de pe lângă Judecătoria X a solicitat a se dispune înlocuirea măsurii preventive a controlului judiciar cu măsura arestării preventive față de inculpat, ca urmare a incidenței în cauză a dispozițiilor art. 215 alin. (7) C.pr.pen
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Infracțiunea prevăzută de art. 337 C.pen. are ca situație premisă solicitarea expresă din partea organelor de poliție rutieră adresată conducătorului auto de a se supune prelevării de mostre biologice, în ambele modalități normative, atât în cazul refuzului, cât și în cazul sustragerii conducătorului unui vehicul de a se supune prelevării de mostre biologice necesare în vederea stabilirii alcoolemiei.
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În cazul în care, prin contract, întreținerea a fost constituită în favoarea unei terț, această persoană are doar dreptul de a cere executarea contractului, nu și pe acela de a cere rezoluțiunea pentru neîndeplinirea obligațiilor. În lipsa unei prevederi exprese în cuprinsul secțiunii care reglementează contractul de întreținere, sunt pe deplin aplicabile normele de drept comun care reglementează stipulația pentru altul, iar acestea prevăd în mod clar că stipulantul este singurul care poate revoca stipulația [art. 1287 alin. (1) C.civ.], beneficiarul având doar dreptul de a solicita executarea [art. 1284 alin. (2) C.civ.]. (Curtea de Apel Timișoara, Secția I civilă, Decizia nr. 235 din 11 iunie 2020, www.rolii.ro1 )
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După ce în urmă cu peste trei decenii prin studiul inițiator (1989)1 urmat de primul curs (1992)2 și apoi de întâiul tratat (1998)3 în materie se afirmă că fondatorul incontestabil al dreptului mediului ca disciplină științifică în România, prin lucrarea pe care o semnalăm și prezentăm prin rândurile de față, profesorul Mircea Duțu, directorul Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române și președintele Universității Ecologice din București, deschide cu titlu de pionierat absolut calea unui nou domeniu al reflecției juridice: dreptul climei; și de această dată, după ce acum un an anunța, printr-un inspirat și documentat studiu4 , asemenea evoluții rapide și complexe, iată că s-a ajuns la un reprezentativ volum de idei și analize asupra regimului juridic al acțiunii globale de combatere și atenuare a încălzirii globale și adaptării la efectele schimbărilor climatice.
