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In this study, the author aims to highlight a number of manifestations of the principle of availability in civil proceedings that have been sanctioned for the abuse of procedural law. From the analysis of the judicial practice, we identify a multitude of situations in which the person’s right to file a lawsuit is exercised for purposes other than the one for which he was recognized by law, which was sanctioned by the application of a judicial fine. The right to sue and the right to appeal must be exercised in good faith, in accordance with the purpose enacted by the legal provisions, and not to pursue the production of a detrimental result to the adverse party. -
The Romanian State assumed by the New York Convention adopted on 10 June 1958 only the obligation to recognize and ensure the enforcement of foreign arbitral awards in the situation where the foreign arbitral award is pronounced on the territory of a signatory state of the Convention, and the dispute which has been settled by the respective foreign arbitral award may be qualified as being commercial by the national legislation. We appreciate that the Romanian State complied with this obligation by ratifying the New York Convention, by the Decree No 186/1961, and we emphasize, in this context, that the respective Convention is binding on the Romanian State only with regard to foreign arbitral awards that fall within its scope of application. Thus, for the foreign arbitral awards that do not fall within the scope of application of the New York Convention, the Romanian State is not bound by any conventional obligation, the state having the freedom to regulate legal provisions other than conventional ones regarding the recognition and enforcement of foreign arbitral awards. Consequently, the existence of some domestic legal provisions contained in the Civil Procedure Code, other than the provisions of the New York Convention, on the Recognition and Enforcement of Foreign Arbitral Awards, is in no way likely to engage international responsibility of the Romanian State, since, as we noted in this study, the Romanian State complied with its conventional obligations assumed by the conclusion of the New York Convention, even the provisions of the mentioned Convention (Article 7.1) allowing the existence of some national provisions other than conventional regulations, since only in such a hypothesis there is the possibility of invoking by the interested person the more favourable national provisions (if the normative provisions were identical, in no case could the problem of applying some more favourable legal provisions be raised).
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The present study aims to detect the type of disputes that may arise during the conclusion, execution and cessation of public procurement contracts, as well as the specificity of the procedure applicable to these disputes. To that end, the premise of our approach is the distinction between the disputes concerning the award, conclusion and nullity of the contracts in question, which fall within the category of administrative disputes, on the one hand, and the disputes concerning the performance and cessation of those contracts, which are part of the scope of civil disputes, on the other hand. The conclusion of the study is that the procedure applicable to each of these categories of disputes has a mixed character (of public law and of private law) in which the weight of special rules differs depending on the nature of the disputes to which we refer.
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Against the background of the interpenetration of the forms of legal liability for the same illicit deed, whether it is criminal, administrative, contraventional or disciplinary liability, in conjunction with the case law of the European courts attributing criminal character to some accusations beyond the legal qualification of the deed in the domestic law, a double criminal liability may be reached, thus posing the problem of the cumulation of these liabilities in terms of respecting the right not to be punished twice (ne bis in idem). Although no matter can be an exception, the issue arises mainly in areas where there are various forms of liability in the domestic law and different authorities with supervisory and sanctioning powers, such as tax evasion, public order, forestry or environmental offences or, finally, labour protection, which is of interest here. Thus, in the field of safety and health at work, the employer’s liability in the event of accidents at work may be exemplary for such situations, given that he is liable for both a criminal liability incurred by the judicial bodies and a contraventional liability established by the special bodies of the labour inspection, following that our approach will address this issue in the context of the current case law of the European courts of law (such as Case A and B v. Norway, Grand Chamber of the E.C.H.R., or the C.J.E.U. cases, Luca Menci, Garlsson Real Estate SA and Enzo Di Puma, Consob).
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The study approaches from an interdisciplinary perspective the problems generated by alcohol consumption while driving. The perspectives from which this problem is viewed are both the legal one and the psychological one, but the analysis is also based on statistical data. These data are capitalized in the sense of observing the particularities involved by this phenomenon, by reference to the age categories that are most often found in known statistics, but are also compared with the way in which the issue is regulated in the legislation of other states. All these elements are likely to lead to the conclusion that the national legislation governing sanctions or limits on alcohol consumption in the context of driving a vehicle on public roads requires significant improvements.
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In the case of the debate by the Romanian notary public of a succession with an element of extraneity, in which the registered shares of a limited liability company are subject to succession, the successional devolution will be carried out according to the law applicable to the succession (lex successionis). The point of connection for the lex successionis is the last habitual residence of the natural person, but this person can choose the law applicable to the succession, his national law. According to the lex successionis, there will be established the heirs, but they will not automatically become associates in the limited liability company. The acquisition of the status of associate will be carried out according to the provisions of the law governing the organic status of the legal person (lex societatis), being a matter which concerns the functioning of the company, not the transmission by succession of the registered shares, which operates anyway, but an effect of devolution. The two laws may belong to different national systems of law. In the case of the application of the Romanian law, we intended to find out possible controversial aspects, presenting the doctrinal interpretations or the judicial practice ones and even trying to formulate some proposals de lege ferenda. We also tried to make a comparison with the material French corporate law, for the hypothesis in which de cujus would have registered shares in a limited liability company of French nationality. -
In this study, the author aims to highlight a number of limitations of the principle of availability in the second phase of the civil process, such as, for example, the need to approve enforcement by the court, the impossibility of representation of the legal person by another legal person, execution by persons or entities other than the creditor, as well as the imperceptible nature of certain goods. At the same time, this procedure cannot be initiated against those who enjoy immunity from enforcement, and the failure to register documents under private signature in the National Register of Real Estate Advertising was an impediment to enforcement until declaring the legal provisions of this obligation as unconstitutional. This presents the difficulties encountered by the holder of the writ of execution in his attempt to enforce it, as well as doctrinal and jurisprudential controversies, which led to the conclusion of the need to repeal the institution of approval of enforcement.
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In practical situations with medical implications, the nature of the expertise must be established as a matter of priority. This matter involves a series of discussions on the differences between forensic expertise and specialized medical expertise. Nowadays, forensic expertise continues to be approached from an obsolete perspective, without detecting its limits in medical or legal matters. Highlighting the differences between the two categories of expertise and the shortcomings of the relevant legislation has major practical consequences. The utility of this study lies in terms of analyzing the legal significance of respecting the medical specialty and the object of the medical expertise – a new category of expertise, which seems to be of no practical use, despite its great importance. This respects the principle of medical specialty and takes into account also the level of development of medical science in the field of expertise. Adherence to incidental medical guidelines or protocols can be verified only by a specialized medical expertise, the only one able to analyze the compliance of the medical conduct. Instead, the limits of forensic expertise are revealed by its object, which is just another expertise in medical law, without encompassing the entire medical or legal matter, in a single specialty. The two types of work must be clearly delimited in judicial practice, for the full clarification of legal situations with medical implications, regardless of their nature.
