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The Order of the minister of health No 1411/2016 introduces, in the Annex to the Order of the minister of health No 482/2007, a new article, that is Article 51, which regulates a new form of civil liability opposite to the liability of the principal for his agent, where the agent (the medical staff) is objectively liable for the deed [the situations provided by Article 655 (1) of the Law No 95/2006] of the principal (the sanitary unit). Article 51 of the Annex to the Order No 482/2007 is unlawful because it violates the express provisions of Article 654 (2) a) of the Law No 95/2006 (which exonerates ex lege the medical staff from the liability for the prejudices caused by the working conditions) and it is confusing, because, although it represents a methodological norm of a special law, it makes reference to the common law (Article 1373 of the Civil Code) which regulates exactly the opposite, namely the objective liability of the principal for the deed of the agent based on the idea of guarantee of the principal, that covers the risk of activity and of authority. -
Scurte observații de ordin istoric. 1. Sahara Occidentală. Teritoriul Saharei Occidentale, aflat în nord-vestul Africii și situat între Maroc, Algeria, Mauritania și Oceanul Atlantic, este disputat cu statut incert în dreptul internațional. O parte însemnată din acest teritoriu este controlată de Maroc, fără ca Marocul să exercite toate atributele suveranității sale asupra acestui teritoriu, în timp ce o parte mai mică se află sub controlul Frontului Polisario (sprijinit de Algeria), mișcare de eliberare a Saharei Occidentale a cărei legitimitate a fost recunoscută de ONU. Acest teritoriu este de mulți ani în atenția ONU care a propus organizarea unui referendum în vederea autodeterminării sale sub controlul Națiunilor Unite. Referendumul nu a mai avut loc1 -
The administrative-jurisdictional procedure established by the Law No 159/2016 and detailed by the Decision No 1171/2016 has utility in a specific area, that of electronic communications. By regulating the procedure for settlement of disputes between the suppliers of public networks of electronic communications and the network operators, on the one hand, and, respectively, of the disputes between the suppliers of public networks of electronic communications and the persons holding by whatever title a physical infrastructure installed inside a building, on the other hand, the Decision No 1171/2016 stands out by provisions of novelty, such as ensuring the contradictoriality and orality of the procedure by distance communication means or by ensuring the public consultation of the preliminary solution given by the Commission within the procedure of settlement of dispute. Similarly, there can also be found procedures regulated in the common law as well, but also derogations in matters of material and territorial jurisdiction of the competent court to censor the legality of the administrative-jurisdictional act issued to settle the case.
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The imperative to not let the governors and the governed persons commit any abuses has generated a specific manner of regulation of the organization of public assemblies, especially when they take place in public. The result of this regulation which, although it does not expressly provide the condition of authorising the organization and the conduct of these public assemblies, contains it nevertheless by default, has implications on the problem of the administrative authorizations. This result is the specific manner of establishing a required authorization that is not included within the scope of express authorizations or in the one related to the tacit approval procedure, placed, as well as the latter, in the sphere of legal fictions. Whereas given the state of law and a genuine democracy it can not be explained the reaction of the authorities when they face the situation of spontaneous public assemblies, their regulation at legal level is required as well.
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We mentally associate the first half of the nineteenth century with the affirmation of some ideas and projects of political and administrative reform of the two Romanian principalities connected to the most advanced spirit in Europe of those times. The national common sense watchword was, at that time, the modernization of the principalities in the spirit of the reforms stimulated and encouraged by the French Revolution in the late eighteenth century. Still under the suzerainty of the Ottoman Empire, Moldavia and Walachia were trying to receive European political and legal institutions and to place them into Romanian governance mechanisms, also preparing thereby the formation of a new legal thinking and practice, of a new government mentality, in the spirit of the Western Europe. From this perspective, the author analyzes the origins and the constitutional functions of the Legislative Council, using, for this, some prestigious doctrinal studies published in specialized magazines in the inter-war period of the twentieth century. Likewise, the author analyzes the role of the Legislative Council configured in Article 79 of the Constitution adopted in 1991 and its organic law.
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The cessation by right of the individual labour contract is one of the fundamental institutions of the labour relations law. Its objective is to expressly regulate those legal hypotheses in which the labour relations, lawfully concluded, cease under the power of law, for objective reasons beyond the control of the signatory parties. Due to the relatively large number of cases where the continuation of the labour relations becomes practically impossible, as well as to the legal issues of a high complexity that may become incidental in this context, the examined institution of law shows a special configuration in all the factors that cause the cessation of the effects of the individual labour contract in the future.
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The idea and, especially, the usefulness of this study have been suggested to us by some amendments brought to the Law No 273/2004 on the procedure of adoption by the Law No 57/2016, including with regard to the issue of the jurisdiction of the Romanian courts in matters of adoption, by the provisions of Articles 1066–1082 of the Civil Procedure Code, referring to „the international jurisdiction of the Romanian courts”, as well as by the existence in this area of some norms still involving an effort of logical-legal polishing. Specifically, we have subjected to analysis the hypotheses of international jurisdiction of the Romanian courts, the material and territorial jurisdiction of the tribunal, respectively of the Bucharest Tribunal, with regard to the applications in matters of adoption.
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I. Pentru a se garanta mai bine interesele părței civile. 1. Tăerea controversei în privința acordărei daunelor-interese, în caz de achitare, în sensul că achitatul, ca și absolvitul, pot fi în orice materie penală condamnați la daune-interese. 2. Dreptul pentru partea civilă de a pune în mișcare acțiunea publică și a o exercita dânsa singură, când ministerul public ezită sau refuză de a se pune în mișcare, și dreptul de a se face apel sau recurs fie în materie de instrucțiune prealabilă, fie la instanțele de judecată, chiar în caz de achitarea inculpatului. 3. Privilegiul pentru partea civilă de a se despăgubi fiscului din garanția dată de arestat spre a i se da libertatea provizorie, ca și din orice altă avere a acestuia. 4. Tăerea controversei cunoscută sub formula una via electa, lăsându-se la facultatea părței civile de a părăsi chiar calea civilă, și a se alătura la acțiunea publică, în caz când crede mai folositoare această cale și vice-versa. -
Recunoașterea calității de cetățean român, acordată Românilor de origine supuși unui Stat străin, confirmând o calitate preexistentă, are efect retroactiv în deosebire de naturalizare, care nu conferă străinilor această calitate decât din momentul împământenirei lor.
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This study, entitled „Harmonisation between tribunals. Some points of reference”, is dedicated to some considerations on the collaboration between the national tribunals, on the one hand, and the tribunals established at the level of the European Union – the Tribunal of Justice of the European Union and the European Court of Human Rights –, on the other. The author starts from the finding that the European citizens can protect their rights both through the courts in their own country and through the previously mentioned European courts.
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The developments which the Romanian, European and international society has experienced, especially in the last decade, coincide with the 10th anniversary of our country’s accession to the European Union, requiring new approaches of the multiple dimensions which the integration process involves. The integration into the European Union, which has generated a series of changes at constitutional level, is also one of the objectives of Romania at international level. Likewise, the process of accession to the European Union has conferred to the Romanian citizens, inclusively, the right to participate in the European Parliament elections, both as candidates and as voters, according to Article 38 of the Romanian Constitution, republished. In this study, the author intends to discuss the problems of Romania’s accession to the European Union from the perspective of the constitutional provisions.
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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?
