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This study aims to identify the constituent moment, a moment when the manifestation of the original constituent power intervenes. While in case of the derived constituent power formal and material limits are pre-established, and the revision of the Constitution is an activity with a consistent procedural component, in case of the original constituent power an analysis of comparative law can identify ex ante which are the main moments when we can speak about the manifestation of the constituent power. These moments are closely related to different internal and international social events which took place in the historical evolution of a state, and these can be grouped into: constituent moments mainly determined by a revolution, by the change in the political regime or by the formation of a state. Thus, the main questions to which we seek to answer are: Which is the onset signal that will lead to the beginning of the constituent procedure? Is the new Constitution legitimate? Is the new Constitution the work of an original constituent power or of a derived constituent power? -
The study tries to outline the concept of misuse of law as it is regulated in the new Romanian Civil Procedure Code, starting from the regulations of novelty introduced by the new Civil Code. Recognized in the case-law and in the doctrine as a phenomenon inherent to the exercise of the subjective rights, the misuse of law appears better outlined on procedural level, unlike the substantive law, both with regard to its constitutive elements and the conditions in which it can be found and in respect of the sanctions that may appear. Even if the regulation of the new Civil Procedure Code is wider, a series of discussions raise, further on, the issue of misuse of law in the matter of the right of action under the terms of express sanctioning for bringing, in bad faith, an application for summons or for exercising an obviously unfounded judicial remedy. -
This study presents the specific elements of the security obligation, having as benchmarks the scope, the legal nature and the fundamentals of the civil repair liability and preventive, anticipatory liability based on the precautionary principle. The stated conclusions try to define this obligation, thus providing a useful approach to the legal action of the creditor regarding the debtor’s liability for infringement of that obligation. -
In the first part of this study the authors present the advantages of parties’ representation through a lawyer, namely through a legal adviser. They’re also showing the solutions promoted in comparative law in this matter, noting that the principle of European law is that of mandatory parties’ representation by a lawyer. Authors’ approach materializes in a comprehensive analysis of the new Code of Civil Procedure provisions concerning parties’ to the appeal mandatory representation through a lawyer or legal adviser. In the authors’ opinion this requirement is aimed not only at the appellant, but also at the intimate. Individual reflections are also formulated in terms of the representation of the parties in withdrawal extraordinary remedy at law, namely the appeal for annulment and revision. The provisions of the law regarding the measures for relieving courts and preparing the implementation of Law no. 134/2010 regarding the Code of Civil Procedure are also analyzed, summarized in the final part of the study. This normative act contains a particular provision on judicial and prosecutor offices’ representation in court. The authors opinion that the procedural rule subject to the analysis takes into account the representation of courts and prosecutors offices in the event that they participate on their own behalf in the substantive law report. -
The legal report between the commercial company and the administrator is a report of mandate. The administrator mandate can be with representation or without representation and has contractual content and also legal one. The powers of the administrator of the company include two elements: the power to fulfil management abilities; the power to represent if it was expressly granted. The power to represent is distinct from the power of administration and exists only if it has been conferred. The representation of the company by the administrator is exercised differently depending on the type of company. For concluding the dispositions, the company’s administrator does not need a special power of attorney in the authentic form for this purpose. When the acts concluded by the representatives of the company are done with the overcoming of its object, they are the duty of the company except in the cases when the third parties knew or should have known the overcoming of the object or when the acts of the same are concluded by exceeding the limits of the powers of the respective bodies. -
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The study deals with the particularities of the human medically assisted reproduction in the cross-border private relationships. Among the artificial procreation techniques, surrogate motherhood is of present interest, as a result of the multiplication of the requests for recognition, on the territory of the forum, of the foreign judgments which establish the filiation of the child born abroad. The implications of private international law are tangential to the qualification, to the conflicts of laws in time and space and to the effectiveness of the foreign judgments. The heterogeneity of the national regulations is the main factor creating non-unitary case laws and different practices – some of them, questionable. The context of the analysis does not allow the dissociation of the artificial procreation from the higher interest of the child, so that any de lege lata or de lege ferenda solutions must be examined through the filter of this fundamental principle. -
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In this study, by analyzing the legal issues of the respect due to persons also after their death, the author, after proceeding to a comparative law examination in the matter, further makes a study of the Romanian legislation in the field under debate (mainly, Articles 78–81 of the new Romanian Civil Code, as well as other legal provisions written down in special laws, such as: the Law No 95/2006 on the reform in the field of healthcare, the Law No 104/2003 on handling of human dead bodies and removal of organs and tissues from the dead bodies in view of transplant and others). -
Potrivit art. 10 C.pr.pen. alin. (1), părțile și subiecții procesuali principali au dreptul de a se apăra ei înșiși sau de a fi asistați de avocat; în alin. (2) al aceluiași articol se prevede că părțile, subiecții procesuali principali și avocatul au dreptul să beneficieze de timpul și înlesnirile necesare pregătirii apărării; apoi, în alin. (3) se arată că suspectul are dreptul de a fi informat de îndată și înainte de a fi ascultat despre fapta pentru care se efectuează urmărirea penală și încadrarea juridică a acesteia. Inculpatul are dreptul de a fi informat de îndată despre fapta pentru care s-a pus în mișcare acțiunea penală împotriva lui și încadrarea juridică a acesteia, [...]; în sfârșit, în alin. (5) se prevede că organele judiciare au obligația de a asigura exercitarea deplină și efectivă a dreptului la apărare de către părți și subiecții procesuali principali în tot cursul procesului penal. -
The regulation (Article 227) of the new Criminal Procedure Code has a partial correspondent in the provisions of Article 146 paragraphs 8 and 111 and Article 1491 paragraphs 9 and 12 of the previous Criminal Procedure Code (1968). The authors analyze the institution of rejection of the proposal of preventive arrest of the defendant during the criminal prosecution, presenting some critical issues and proposing some improvements to the new regulation. -
