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In this study, the author examines the problems of regulating the violations of private life by Article 74 of the current Romanian Civil Code (the Law No 287/2009, republished), in light of the relevant case-law of the European Court of Human Rights and of the Romanian courts, coming to the conclusion that the mentioned legal text judiciously summarizes the indicated case-law. -
The provisions of Article 169 of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency regulate the responsibility aimed at covering the debtor’s liabilities in case its assets do not satisfy all the claims of its debtors. The mentioned legal provisions regulate expressly determined cases in which either the members of the supervisory bodies, or the members of the management bodies of the legal person which is in a state of insolvency or any other person that has caused the state of insolvency may be obliged to cover a part of the liabilities of the insolvent debtor, provided that the activity they carried out has led to the insufficiency of the available cash funds from the patrimony of the debtor legal person. In relation to the provisions of Article 171 of the mentioned normative act, the responsibility of the specified persons may be engaged in any form of the procedure, either in judicial reorganization, or in bankruptcy. In case of judicial reorganization, the amounts of money obtained as a result of the responsibility of the mentioned persons are intended to supplement the funds necessary for the continuation of the debtor’s activity, and, in case of bankruptcy, those amounts must ensure that the debtor’s liabilities are covered. The regulation of the responsibility of the members of the supervisory/management bodies or of any other person that has caused the state of insolvency of the debtor legal person is an integral part of the procedure provided by the law on insolvency. -
In this study, the author analyzes the possibility of granting the public judicial aid, according to the national legislation and the case law of the European Court of Human Rights, regarding the bail necessary to be paid in the cases regarding the provisional suspension of enforcement, according to Article 719 (7) of the Civil Procedure Code. Regarding the situation prior to pronouncing the decision in the Case S.C. ECO INVEST S.R.L. and Ilie Bolmadar versus Romania, special attention is paid to the way of transposing the Directive of the Council of the European Union 2003/8/EC to improve the access to justice in cross-border disputes by establishing some minimum common rules relating to the legal aid for such disputes, as well as the jurisprudential reversal of the Case Micallef versus Malta. At the same time, there are emphasized the relevant provisions of the Government Emergency Ordinance No 51/2008 on judicial public aid in civil matters.
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Chestiunea pusă în teză generală la înălțimea principiilor fundamentale ale dreptului nostru public trece peste importanța litigiului concret cu ocazia căruia se pune această chestie. Suntem deci datori a o examina la acea înălțime și justiția la rândul ei e datoare și în drept să-i dea soluția care o va crede mai conformă acelor principii. Fără îndoială că nu este fără greutate considerația generală ce s’a invocat că dispozițiunile constituționale ar putea să rămână fără efect, dacă ar fi permis legiuitorului ordinar să distrugă prin opera sa legislativă bazele pe care este clădit tot edificiul vieței noastre publice, așa cum este el așezat în pactul nostru fundamental și dacă justiția nu ar avea dreptul să repună la loc părțile vătămate ale acestui edificiu. -
The declarative establishment of democratic traditions or insurrectional ideals at a constitutional level is legitimate and explicable as an element of public law philosophy and social psychology, but also of national identification, especially in situations where the Constituent Assembly established a democratic political regime, opened to the aspirations of a nation that has liberated itself from the authoritarianism of a tyrannical government system. However, the issue we are raising is whether democratic traditions are justified in a normative regulation. In my opinion, the proper place to preserve the national values and the historical political and juridical traditions of a people cannot be the normative text of the Constitution, because it, as a fundamental normative act, from the point of view of positive law, has the role to regulate political, social and economic relations and others as valid social phenomena measurable politically and legally. The original place of the traditions and values of a community lies in its public consciousness and in the general lifestyle. Here, they retain intact the ideological content and form, as they penetrated through objective scientific knowledge, as well as through a spiritual path in the individual’s consciousness, and extended to successive generations. In this way, democratic traditions acquire an explanatory role for the philosophy of public law. A question arises: if democratic traditions are transposed by constitutional norms in the national legal order and converted into constitutional traditions, can they be challenged scientifically and historically? Contesting the democratic traditions in a scientific work or denying their existence, as well as legislating some areas of social life without considering the Romanian constitutional traditions, are subjected to malpractice or even sanctioned by the law?
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Presenting the specific fundamental rights granted to the European citizens, of the new rights guaranteed in compliance with the progress and development of the society and taking into consideration the case law of the European Court of Human Rights and of the Court of Justice of the European Union, the author emphasizes the autonomous nature of the Charter of fundamental rights of the European Union. The fact that the Charter of fundamental rights of the European Union is granted a binding legal value after the Treaty of Lisbon enters into force, shall have an important part for the accession of the European Union to the (European) Convention for the protection of human rights and of fundamental freedoms. The Charter of fundamental rights of the European Union shall contribute to the acquirement of the important part that the European Union will play on the international stage, in the field of the human rights protection. -
The present study aims to analyze the autonomy of will regarding the civil legal act, by reference to the limitations that the legal norms, public order or good morals set both in terms of substance and formally. The legal will, a complex psychological phenomenon which is the basis of the conclusion of any legal act, is governed by two basic principles, namely the principle of real will and the principle of freedom or autonomy of will. The principle of real will, enshrined in Romanian law, gives valency to the internal/psychological element to which the party is animated at the conclusion of the civil legal act. As for the principle of autonomy of will, it finds its legal consecration in Article 1169 of the Civil Code, establishing the parties’ freedom to conclude any contracts and to establish their content. However, this freedom must not be viewed in absolute terms, knowing a series of limitations of substance and form, which we have pointed out in this article. -
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This article analyzes amendments brought to the institution of authority of res judicata by the new Civil Procedure Code, in relation to the manner in which the doctrine and the case-law have determined the development of this institution. -
Neutral power can manifest itself in modern liberal democracies also in the form of autonomous authorities. Their neutrality is based on two kinds of reasons. The first category involves the positioning of the neutral authorities outside the separation of powers in the state, their reactive (not active) political character and their role of balancing the separate powers of the state or of balancing the relations between the state and civil society. They are in the Romanian law authorities with constitutional status. The second category of authorities that call/consider themselves neutral founds its position on the neutrality of the experts in their structure. They have in the Romanian Constitution the status of some atypical, autonomous administrative authorities. Modern states are based on political freedom, i.e. on the liberation of man from objective laws. The expression of this freedom substantiates all the institutional mechanisms of modern constitutionalism. In exchange, the autonomous administrative authorities are set up to release the regulation of certain social mechanisms of political influence. They are not based on modern political freedom. Formed of experts who know the „objective” laws of social development and apply them „scientifically”, these authorities are „objective”. It is thus created a dichotomy: the people or the expert? The increasingly dense contemporary option for the expert can lead to significant risks for the human rights and for the democratic system.
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Legal separation („separația de corp”) is a quasi-divorce, which does not lead to the dissolution of the marriage, but produces certain legal consequences on personal and patrimonial relations between spouses. Based on religious motivations, legal separation is the compromising solution adopted in states of Catholic religion, in which marriage is seen as an indissoluble and perpetual bond. Although known in several Member States of the European Union (EU), legal separation has meanings, conditions, procedure and effects that differ from one state to another. In Romanian law, the institution of legal separation is not regulated. The Orthodox religion, predominant in Romania, rejects the dogma of the indissolubility of marriage and allows divorce. However, in the Civil Code, among the provisions of private international law there is a rule indicating the law applicable to legal separation. The use of the notion, which is otherwise singular, is not accompanied by a definition or explanation of the term. In the European regulations (the Regulation Brussels II bis on jurisdiction1 and the Regulation Rome III on the applicable law2 ), directly applicable in Romania, two similar notions are used, those of „separare de drept” (legal separation) and of „separare de corp” (separation of body).
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The rule of issuing urban planning permits (building or demolition permits) under the reserve of respecting the civil rights of third parties has two important consequences. First, it makes it clear that this sort of administrative permit does not affect the rights of the third parties; second, it means that the subsequent civil right is not taken into consideration in the management of the file and the issuing of the permits. The said permits solely assure the respect of urban planning law, excluding private law obligations and servitudes.
