-
Through this study we have tried to evoke an issue insufficiently addressed in the Romanian law, but which has provoked a series of controversies in the French doctrine and case law. Specifically, we tried to answer the following question: Does dolus require an excusable error? Or if, on the contrary, the (un)excusable nature of the error caused has no relevance for the retention of dolus? Following the presentation of the arguments expressed in the Hexagon, but also by certain Romanian authors, we will present our own point of view on this issue. In our opinion, according to the current Romanian civil regulation, dolus requires the existence of an excusable error, in opposition, for example, with the solution chosen by the French legislator in 2016 or with the vision of the editors of the UNIDROIT Principles. The Romanian judges confirm, in the majority, that it is inconceivable to cancel a contract for dolus, while the alleged victim of the dolus has violated by guilt his obligation of self-information. In other words, the lack of some reasonable diligences in order to know the reality excludes the dolus. -
The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial”; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial.
-
Recently, Brașov Court of Appeal ruled that that the legislator listed in Article 5 (3) of the Law No 55/2020 the measures to reduce the impact of the type of risk and that the Government decisions issued in execution of the law impose certain limitations on the activit y of economic operators, the observance of which requires the presentation by individuals of a certificate proving vaccination, infection with the SARS-CoV-2 virus or a negative test. Also, the Court considered that the provisions contained in the Government decisions do not add additional conditions and do not contain additional restrictions or limitations of fundamental rights, these restrictions being regulated in the Law No 55/2020 as a formal act of the Parliament. However, as we will show in our analysis, the provisions of the Law on some measures to prevent and combat the effects of the COVID-19 pandemic are unconstitutional insofar as they are interpreted as allowing the restriction of the right to privacy by the processing of personal health data by economic operators, data contained in the EU Digital COVID Certificate. The unconstitutionality of the law derives from the violation of the provisions of Article 1 (5) of the Romanian Constitution in its aspect regarding the quality of the law, from the violation of the provisions of Article 53 (1) in its aspect regarding the restriction only by law of the exercise of some fundamental rights and freedoms and from the violation of the provisions of Article 26 on its side regarding the guarantees associated with the right to intimate, family and private life. The domestic use of the EU Digital COVID Certificate is also unconstitutional in relation to the provisions of Article 115 (6) of the Romanian Constitution on its side regarding the field of regulation of emergency ordinances. Thus, the main conclusion is that the judgment of Brașov Court of Appeal was given with the incorrect application of the rules of substantive law, so that a constitutional control is required in order to ensure for the recipients of the Law No 55/2020 the reasonable possibility to be able to predict the scope and effects of this normative act.
-
In the context of the requirement to guarantee a higher level of protection of the health and safety of workers, imposed in the field even at European level 1 , the offences against labour protection are one of the ways that give expression internally to the highest legal protection in the field, satisfying both the special prevention in the field by preventing the occurrence of such events, sometimes having the most serious consequences and the need to punish more severely such deeds, when special social danger thereof requires so. The complexity of offences against labour protection lies in the often omissive and culpable conduct of the perpetrator, sometimes related to a particular specificity of the causality link between this and the state of concrete danger thus created, with special implications on the imputability of the deed, in the context of the difficult interpretation of the vast special legislation, which must, therefore, be known and correctly applied. The relevant doctrine was initiated, starting precisely with the comment on the first incrimination of this sort in the Criminal Code of Carol II of 1936, and relevant case law was found, including from the constitutional contentious court, with regard to the compliance with the principle of legality of the incrimination in terms of predictability of the rule of incrimination, short references being formulated to the European law in the matter of safety and health at work and of comparative law. Our analysis will cover the entire content of the specific offences, with reference to both the objective and the subjective typicalness of the offences against labour protection, including their pre-existing conditions, with the declared aim of supporting the practitioners in the field.
-
The premise of this study is that the current legislation uses two legal notions with relatively different names, that is the „legitimate interest” in the administrative contentious procedure, regulated by the Law No 554/2004, and the „interest to act”, used in the Civil Procedure Code, both representing conditions of admissibility of the judicial action (in administrative contentious and, respectively, civil action). The aim pursued by the author was to observe whether these legal notions are synonyms or they differ, in terms of their processual connotation, depending on the nature of the legal action promoted. In this regard, the author has compared the two legal notions, revealing the similarities and differences between them, and, at the end of the study, he has set out the theoretical and practical arguments for the purpose of recognizing their processual autonomy. -
The review is the only legal remedy that can be declared against the judgments of first instance pronounced by the administrative contentious sections. The former regulation of the Civil Procedure Code established that the review is devolutive, only inso far as the reviewed judgment cannot be contested by appeal. At present, being an extraordinary legal remedy, the review can only concern grounds of illegality of the judgment pronounced by the court of first instance. The present study has as object the analysis of the grounds for cassation listed by the Romanian legislator in Article 488 of the Civil Procedure Code from the perspective of the matter of administrative contentious. Thus, each ground for cassation will be briefly analyzed separately, from the perspective of applicability in the processual stage of review carried on before the administrative contentious courts. The analysis contains explanations of the normative texts, as well as examples from the national judicial practice, in which the R omanian courts have applied the grounds for cassation corresponding to the cases brought before the court. The aim of the research is to identify in the national practice the applicability of the grounds for cassation listed by the legislator and to present their effectiveness, following that, in the concluding part of the study, possible remedies regarding the currently existing grounds for cassation be proposed.
-
How firm the authority of the state should be and how wide the margin of freedom of the citizens of a state should be are questions without a convenient answer for either the state, or for the citizen. This is a truth that can be insisted upon for a long time, but without satisfactory results. The citizen has always demanded from the public power a sphere of his freedom as wide as possible and the public power has been and is, in principle, ready to retain an extra authority over the citizen. The author aims in this study to show that both the authority of the state and the vocation of freedom of the citizen must slide between reasonable and legitimate limits, so that the state can exercise its role and social functions established through constitutional norm and put in the service of the common good of the society and that the citizen can enjoy, without any illegitimate restraints or restrictions, a freedom (recognized and guaranteed by the state), which allows him to develop his personality and dignity as a human being, in the general interpersonal relations and in its relations with the state, in a determined social-historical, economic, political, cultural, religious context, etc. The author also shows that the relationship between authority and freedom is in its essence a fragile one, in which the state may have, in certain political circumstances or of other nature, leviathan temptations, with oppressive effects on the constitutional freedoms, a position from which it reproduces tools of force in ever new forms and it restricts the exercise of the citizens’ rights. The author draws attention to a serious social danger that threatens the foundations of a democratic government: the excess of authority and its repeated, illegitimate and unjustified use can be premises of the establishment of an authoritarian regime, in front of which the citizen is powerless. The excess of authority and the unlawful violation of public liberties call into question the democratic character of the state. In its turn and also in certain given political or social circumstances, the associated citizen or citizens may be tempted to resort to extreme forms of manifestation, claiming a higher degree of individual or collective freedom, to the detriment of the original authority of public power.
-
The article describes the common law system in terms of sources of law, in the British system, the term legislation being used to describe the statutes of Parliament and delegated legislation, and the formula case law to designate both common law and equity. Statute law or Acts of Parliament represents in the law system of Great Britain the equivalent of the laws adopted in the Romanian law by the Romanian Parliament, and the term delegated legislation describes all those rules adopted by authorities other than the Parliament of the United Kingdom, but under its authority. At the same time, it is characteristic of the British jurisprudential system to publish cases settled by the courts of law or to report them, this activity being carried out by lawyers, by a barrister or by a solicitor.
-
This study aims to promote several solutions to ensure the accurate interpretation and application of certain provisions regulated under Law No 307/2006 on protection against fires, in order to determine whether the work performed by the employed personnel (holder of an employment agreement in private/voluntary emergency services) can be framed (qualified) as performed in special work conditions, under the legislation applicable to military personnel – professional firefighters under the emergency services. -
As a result of the particular regulation of a long-standing principle of European Union law, as of 25 May 2018, data controllers have an express obligation to process personal data „lawfully, fairly and in a transparent manner in relation to the data subject («lawfulness, fairness and transparency»)”. In the light of the arguments which will be presented in this article, it will follow that the principle of transparency gives data subjects the possibility to hold controllers and processors accountable and, in particular, to exercise concrete and effective control over their personal data, e.g. by giving or withdrawing informed consent, and by exercising regulated rights in favour of data subjects. In other words, by virtue of the principle of transparency, data controllers are obliged to take any measure necessary to ensure that data subjects – customers or other users – whose data are processed are fully and accurately informed. As regards the concrete way in which compliance with this fundamental principle can be ensured, the General Data Protection Regulation provides some guidance, stating in Article 12 (1) that the controller is obliged to take appropriate measures to provide the data subject with any information referred to in Articles 13 and 14 and any communications pursuant to Articles 15–22 and 34 relating to processing in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. Therefore, the information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. Last but not least, information or communication should, as a rule, be provided free of charge. Throughout the article, on the basis of the doctrine and case law, the meaning of the notions used by the European legislator in Articles 5, 12, 13 and 14 of the General Data Protection Regulation will be explained.
-
The preventive measures are institutions of criminal law of a coercive nature, by which the suspect or defendant is prevented from engaging in certain activities that would adversely affect the conduct of the criminal proceedings or the achievement of the purpose of the crimin al proceedings. The preventive measures provided in the Code of Criminal Procedure in our country are: detention, judicial control, judicial control on bail, house arrest and pre-trial detention. Of these, pre-trial detention is the measure that generates the most important problems in judicial practice. In this study, we do not intend to make an exhaustive analysis of this preventive measure or to present in detail the conditions for its disposal.
-
