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This article inspired us by the following situation existing in the legislation and doctrine: The law on county councils does not contain edifying referrals to specific procedures for approving the minutes of county councils meetings (we find also a quasi-similar situation regarding the minutes’ records challenge in court); The doctrine which should have filled this gap is inexistent and is limited to making referrals to other aspects of the minutes, taken from legislation, legislation which, as already mentioned, is extremely vague on this matter; The lack of an administrative procedure code leaves unclear this side of the concrete way for the minutes’ approval. Therefore, starting from the unequal practice of local authorities on the minutes’ approval in court, we shall try, through the arguments in this article, to come to support practitioners in local government and, why not, to also offer a source of inspiration in drafting the Administrative Procedure Code. -
In this article the author defines the judicial security and analyzes its role within the national security system, but also the relations between the judiciary system and the national security system.
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The following article analyzes mediation procedure implemented in the Romanian law system by the Law No 192/2006 on the mediation and on the organization of the profession of mediator. The paper makes a critical assessment of the problems encountered in implementing mediation procedure in the cases generated by the public administration activity. It also presents the jurisprudence of the Romanian Court of Accounts on this subject.
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The article addresses in a systematized manner some of the most important problems raised in the administrative practice and, implicitly, in the case law of the administrative disputes courts by the traditional triad concerning the cessation of producing of legal effects by the administrative acts, namely the nullity, revocation and inexistence. There are briefly reviewed aspects concerning terminology, doctrinal definitions, the relative nullity – absolute nullity distinction in the administrative law, the legality – opportunity correlation from the perspective of the control of administrative acts, the authorities competent to establish the nullity, revocation or inexistence of an administrative act. The complex issue of the legal effects of finding the nullity, the revocation or inexistence of administrative acts, but also of the repeal that can intervene only in case of normative administrative acts is examined by reference to some of the relevant solutions of the administrative case law. A newly raised issue, due to the incidence of the administrative law, briefly aims at the position of prosecutor of case or of judge in relation to an administrative act with incidence in a criminal case.
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In this article the author analyzes the constitutional text (Article 83 of the Basic Law) which sets the duration of the term of office of the President of Romania. The problem of setting the duration of the term of office of the President of Republic is both a legal problem and a political one, whereas, in terms of electing the President of Romania by direct universal vote, it has a legitimacy equal to that of the Parliament, which confers it the vocation to aspire to an enhanced executive power, in which case it may enter into cohabitation relations with the Government supported by a parliamentary majority hostile to the President of Republic. The author brings into discussion for the first time in the specialised literature and on the basis of the documents of the Constituent Assembly, existing in the Archive of the Senate of Romania, the duration of the five-year term of office of the President, forecast by the Commission for drafting of the Constitution and included in the original form of the Theses suggested by the Commission to the Constituent Assembly. Following the parliamentary debate, the constituent legislators reduced the five-year term of office of the President of Romania to four years. Following the constitutional revision in 2003, the five-year presidential term of office is restored starting from 2009.
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This study deals with the sale with repurchase option, a variety of sale of a distinctive specific nature, which may be sometimes confused with other types of contracts, of different legal nature. The paper analyzes how it is regulated the sale with repurchase pact in the Civil Code of 1864, highlighting the circumstance according to which the previous civil regulation did not contain clear and imperative legal norms that could have been able to be protect the public order interests, for the purposes of granting real legal guarantees for their defence before the sale with repurchase pact. At the same time, the study also undertakes a careful examination of the regulations included in the current Civil Code relative to the sale with repurchase pact. There have been noticed interesting legal issues related to the terminology used by the legislator in the current regulation regarding the right of repurchase option, a right analysed in a comprehensive manner, in its stages of emergence, exercise, taking effects, transmission and extinction.
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The survey aims to highlight certain features, considered to be more important, on public property, the object and subject covered by the public property right, guarantee and protection of the public property, the right to public property and its inviolability. The authors had in regard certain magisterial solutions, delivered in practice, on the protection and exercise of public property.
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The time elapsed since the entry into force of the new codes, although short, brought to the current legal exercise of the practitioners problems of great complexity, if only through the novelty of the institutional innovations or through the difficulties of interpretation and of uniform application. Perceiving the evolutions of the regulations, but also their drawbacks, demonstrated by the very attempts of legislative reconfiguration or by the sanctions of the constitutional judge, this study focused on the extent of their reception and their enrichment with the spirit of the fundamental principles of law, an objective expressly assumed by the legislator. From the vastness of the regulations, the author has chosen a few, which it deemed significant for the applications on the merits of the criminal trial: the more favourable criminal law, the prescription, the criminal prosecution, the plea bargaining agreement, the preliminary chamber. He also considered that some decisions of the Constitutional Court require a sequential analysis if only for the desire to open a field of discussion about a beneficial uniformity and an equal application of a genuine set of rules thus attached to the codes.
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The new normative framework established by the Law No 101/2016 in the matter of judicial means of appeal brings some significant mutations, but, at the same time, takes over some provisions established by the former normative act (the Government Emergency Ordinance No 34/2000). In the context of the new normative framework, this study proposes a detailed analysis of the contestations formulated directly through judicial means, in accordance with the unional directives of 2014 in the matter of exercise of the judicial means of appeal. Also, the author of the study intends to analyze in detail the judicial means of appeal whereby it is requested the grant of damages for the prejudices caused during the stages preliminary to the award of these contracts, as well as for the prejudices caused after the contract is concluded, in the context in which the Court of Justice of the European Union held in its case law that the Member States enjoy procedural autonomy as regards the right to regulate the specific procedures by which the damages are going to be covered.
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In a democratic society, the legal legitimacy of the State and of the State’s power, of its institutions, but also the social and political foundations of the society as such, are generated and determined by the Constitution, defined as expressively as possible as being: „Fundamental political and legal establishment of a people” (I. Deleanu). The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional norms. Guaranteeing the respect for that principle, essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the adopted normative acts, in contents and form, the constitutional norms. Amending the Basic Law of a state is an extremely complex political and legal act with major meanings and implications in the social, political, and State system, but also for each individual. Therefore, such an approach should be well-justified, in order to respond to some well-defined social, political, and legal requirements and particularly in order to meet the principles and rules specific to a democratic constitutional and State system ensuring the stability and functionality it needs. These are some aspects of the contemporary constitutionalism in Romania which we are trying to analyze critically in this study, in order to make the distinction between ideal and constitutional reality.
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Reținerea unei împrejurări ca circumstanță atenuantă judiciară: a) este posibilă doar dacă ea reduce într-o asemenea măsură gravitatea infracțiunii sau descrie atât de favorabil persoana infractorului, încât numai o diminuare a limitelor speciale este aptă să creeze un echilibru între rolurile aflictiv și educativ atașate pedepsei și să realizeze prevenția specială inerentă acesteia; b) atrage îndeplinirea de către instanță a obligațiilor de a indica împrejurarea care constituie circumstanță atenuantă, de a face referire la mijloacele de probă din care ea rezultă și de a o încadra în ipotezele prevăzute de lege. -
In this study the author analyzes the provisions of the new normative act on regulating the activity of teleworking, namely of that form of organization of work „by which the employee, on a regular and voluntary basis, fulfils the specific attributions of his/her position, occupation or trade, elsewhere than the workplace organized by the employer, at least one day per month, using the information and communications technology”. Due attention is paid to the individual labour contract, having such an object, to its specific content, to the rights and obligations of the parties, to the contraventional liability in case of non-compliance with the legal norms. The study emphasizes the advantages and benefits of teleworking both for employers and for employees.
