-
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. -
At the same time with the entry into force of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, it has been also regulated indirectly the refund of the judicial stamp duty to the plaintiff who invested a court of law with a litigation against the defendant-debtor against whom a final interlocutory judgment to open the insolvency procedure had not been pronounced until the moment of bringing the action by means of common law. This study analyses the differences of approach between the old insolvency law and the regulation in force since 2014, by pointing out how the legislator decided to solve the issue of lis pendens created by simultaneously analyzing the same application within two separate procedures: the general one, before the common law court, and the special one, before the syndic judge. The study also analyses the implications of good faith, respectively of the guilt of the plaintiff who makes use of this application, with discussions on the moment, the manner of requesting the refund of the stamp duty, respectively of the amount whose refund may be ordered.
-
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.
-
The most striking word that illustrates the relationship between Romanian law and European law seems to be the word „marking”. Among the various nuances that can be assigned to the meaning of this word, three meanings are relevant from the perspective of the topic addressed by this paper. Thus, among others, to mark means (i) to influence in a significant way, or (ii) to bear a mark that illustrates a membership, or more precisely (iii) to change a destiny. All of these nuances are defining in order to describe the decisive and irreversible „imprint” that European law has made, is making and will make on our domestic law. Through this scientific approach we have set out to address the implications of this complex structure which involves a multidimensional union that includes elements of supranational law, following the paradigm of the interference. The example that we will focus on is the area of consumer protection, where we will also address issues regarding constitutionality in relation to domestic law, but especially in relation to European law. We will consider both the past and the future, but, naturally, we will focus our attention on the present. In the context of the current COVID-19 pandemic, while not focusing on any medical or health matters related to the pandemic, but rather on its ties with the emergence of a new global economic, financial and banking crisis, we will address the link between European Union law and domestic law.
-
In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework.
-
The financial law relations are relevant in the extended dynamics of the public law, as a reflection of the importance of public financial resources and of the technicality of the legal elements in the budgetary procedures. This study positions, in this context, a traditional institution, namely the preliminary procedure, as a space for the manifestation of the dynamics and points of tension deriving from legal conflict relations revealed as a result of the audit missions of the Court of Accounts. The analytical approach organized in a spectrum from general to special highlights the working hypotheses, the functions, the object and the finalities of the preliminary procedure in the matter of budgetary law relations.
-
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 study aims to analyze the situation in the domestic law of the application of the institution of transfer of undertaking in relation to the exigences of Directive 2001/23/EC as interpreted by the Court of Justice of the European Union. The premise of a correct interpretation and application of this institution is the knowledge of the essential aspects developed in t he case law of the Court of Justice of the European Union that analyzes the scope of application ratione materiae of Directive 2001/23/EC, among which are emphasized the distinction made by the Court between labour force-based companies and companies whose activity necessarily involves the exploitation of goods, as well as the autonomous meaning attributed to the notion of „conventional assignment”. Furthermore, the author shows that the regulation of the notion of transfer of undertaking from the domestic law restricts the scope of application ratione materiae of the Directive 2001/23/EC, non-compliant conditions being imposed, such as the transfer of the property right from the assignor to the assignee and the existence of a contractual link between the assignor and the assignee. The analysis of the judicial practice of the national courts and of the opinions expressed in the doctrine shows that a unitary point of view has not been outlined with regard to the possibility of applying the principle of conforming interpretation of the domestic law in order to ensure the full effect of the provisions of Directive 2001/23/EC. In a first opinion, it is argued that the full effect application of the Directive from the perspective of the scope of application ratione materiae can be achieved through a conforming interpretation of the domestic law which allows to leave the contrary internal legal provisions be disregarded, without thereby reaching to a direct application of Directive 2001/23/EC. According to the second point of view, the extension of the institution of the transfer of undertaking over the express normative content of the internal provisions, in the absence of any legal operation of assignment or merger, without having as object the property right, would be an interpretation contra legem. In compliance with the limits of the principle of conforming interpretation stated in the case law of the Court of Justice of the European Union, the conclusion supported by the author of this study is that the conforming interpretation of the national law is an effective remedy for the full application of the provisions of Directive 2001/23/EC. -
The study aims to present in a comparative manner the post-calculation clauses and the escalation clauses in international trade contracts, while presenting the main clauses of both categories, including the varieties of the well-known cost+fee clause. At the same time, the study gradually analyzes the structure of each type of clause, highlighting the main advantages and disadvantages that accompany the introduction of these clauses in trade contracts, both from the perspective of the owner and from the perspective of the contractor, who tries to transfer the risks to the owner, which in some situations may, paradoxically, even benefit from such a situation.
