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Part of EU law – both primary and especially secondary – waste problem is a complex multi-faceted one in its aspects. Since the first programs of action on the environment (EAP) – the first (1973–1977), the second (1977–1983) – to the last, the seventh such program (2013–2020) entitled A better environment for a better life, the challenge of waste is dealt with either issue on its own, or as part of wider objectives. Whatever the approach, solving subordinates to old or new principles of environmental law as formulated in the first EAP and then developed in other programs of action. These are: prevention is better than cure; EIA should be considered at an early stage of decision making; exploitation of nature by means of causing significant damage to the ecological balance should be avoided; scientific knowledge must be improved to allow for appropriate action; „polluter pays” principle, the polluter should bear the cost of prevention and environmental restoration after damage thereto; activities of a Member State shall not cause damage to the environment of other States. -
Achitare persoană fizică autorizată (avocat) pentru infracțiunea de evaziune fiscală. Nedepunerea în termen a declarației fiscale 200 pentru o perioadă de doi ani nu constituie infracțiune, ci contravenție. Sumele obținute din activități economice, dar declarate cu întârziere sau nedeclarate, pot fi impozitate cu ocazia controlului fiscal, în cazul în care documentele primare justificative, respectiv chitanțele și facturile, sunt întocmite, sunt disponibile și pot fi verificate. Nedepășirea plafonului pentru obligativitatea înregistrării contribuabilului ca plătitor de TVA poate fi dovedită prin mijloace de probă.
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Electoratul este o funcțiune politică, iar nu un drept. Indivizii au un drept anterior legei pozitive, și anume acela de a fi considerați ca cetățeni politici sau, cum spune Aristot, „omul este un animal social”, zoon potitikon1. Începând dela germanul Altusius, după cum stabilește Gierke, și până în timpurile noastre, doctrinarii politici consideră pe individ ca făcând parte integrantă din marele suveran, consideră voința lui ca alcătuind voința colectivă a corpului social, numit Stat. Locke, Rousseau, Blakstone, Barclay, Loyseau și alți cugetători, fiecare cu elementele ce le sunt personale, au format școală, și un corp de doctrină, susținut de o literatură vastă, întemeiază dreptul primar al indivizilor pe conceptul suveranităței legale. Suveranitatea, în accepțiunea ei juridică, „dă, după Esmein, opiniunei publice o forță superioară, o expresie precisă, o valoare juridică, o autoritate legală”.
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Prin arvonă (arrha)1 se înțelege ceea ce una din părțile contractante, în genere cumpărătorul (art. 1297, 1298 C. C.) sau locatarul (art. 1416), dă celeilalte, fie pentru a asigura executarea contractului (arrha confirmatoria), fie pentru a’și procura mijlocul de a se putea desista de el (arrha paenitentialis).
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The study starts from the premise that the research of the classical Romanian legal and administrative doctrine can offer solutions to topical issues of the public administration, such as public service matters. The historical analysis allows to identify the opinions of some authors who are representative for the public law of the interwar period in terms of the concept and of the characteristics of the public service, of the applicable legal regime, of the categories and forms of organization thereof. Thus, the public service appears as an activity carried out or authorized by the public administration in order to satisfy regularly and continuously a general interest of a national or local collectivity, an activity subject to a legal regime of public law.
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The participation of a tenderer in insolvency in a procedure for the award of a public procurement contract is regulated, mainly, by the directives on public procurement and by the laws which transpose them in the Member States. Within the current generation of directives on public procurement, the exclusion of the tenderer in insolvency is still classified into the category of facultative reasons of exclusion. However, as an element of novelty, if a Member State of the European Union decides to turn this reason of exclusion from facultative into mandatory, the State has the right to regulate certain circumstances in which the contracting authorities are prohibited from excluding such tenderer from the procedure. Whenever such regulation is contained in the national acts of transposition of directives, the contracting authority becomes bound to establish whether the conditions that impose the maintenance of the tenderer the procedure are met. The Romanian legislator has chosen to regulate that the contracting authority can not exclude from the award procedure the tenderer that is in the phase of observation or reorganization, if certain conditions are met. Having in view this obligation to establish whether certain conditions are met in order to maintain the tenderer in the phase of observation or of reorganization, as well as the amendments brought by the new directives in the matter of exercise of the right of the contracting authority to request clarifications, it is important to determine the extent to which, under the influence of the new regulations, the assessment commission will have to take a proactive approach or not, in order to decide whether to exclude or not such a tenderer.
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In the present study we will try to find the answer to the question: „What can a natural person do when his/her right to the protection of personal data has been violated?”. The natural person having his/her habitual residence in Romania, who suffered damages in a cross-border context, will be taken as a reference system, in an attempt of „guiding” him/her to the competent authority for dealing with the judicial issues that have arisen. The legal basis for answering the question will be the Regulation (EU) No 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. In the first part of the study the terms used to explain the right to the protection of personal data and its violation will be clarified, and in the second part the administrative and/or judicial ways that the natural person can follow in order to restore the violated right will be discussed.
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The emergence of the Law No 76/2012 for the implementation of the Law No 134/2010 on the Code of Civil Procedure had great influence on the Government Emergency Ordinance No 34/2006 on the award of public procurement contracts. The latter stated that, in the matter of claims for compensation for damage caused during the public procurement procedure, the way of attack is an appeal on law submitted within 5 days of the communication. Difficulties with the publication and entry into force of the Law No 76/2012 were felt because it provided that the appeal would be the remedy in the matter, but before it came into force, the Government Emergency Ordinance No 34/2006 was amended by the Government Emergency Ordinance No 77/2012 which was approved by the Law 193/2013 and which left unchanged the way of attack. To solve the problems related to the succession in time of the laws, the High Court of Cassation and Justice by the Decision No 20/2015 of 5 October 2015 on the examination of the appeal in the interest of the law formulated by the Board of the Suceava Court of Appeal determined that the appeal on law is the only way of attack in the matter. Problems of interpretation have not stopped here because, while the High Court has made compulsory the way of attack, it did not make any mention of the term of exercise. Thus, a non-unitary practice has emerged because some courts have considered that the term of exercise is that of appeal, i.e. 5 days, while others have applied the general term. In our view, the time limit for exercising the appeal on law cannot be considered to be 5 days, because in this situation it would only mean that there was a replacement of the term „appeal” with „appeal on law”, but the general term provided by the Code of Civil Procedure shall apply.
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Part of our daily lives, light pollution enjoys less media coverage than other, more serious environmental issues, like climate change, air pollution, desertification of many areas of land, illegal deforestation of huge areas of forest land. We are talking about light pollution when artificial lights are everywhere – through billboards, street lighting, etc. – and such intensity that it changes the levels of natural lighting the night, with negative impacts on human health and biodiversity.
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This study proposes a comparative analysis of the norms of incrimination which include under the incidence of the criminal law some deeds recognized as international crimes through conventions and treaties. The crimes included in Title XII – Crimes of genocide, crimes against humanity and war crimes in the Romanian Criminal Code and the Crimes against the peace and security of mankind, war crimes defined by the Criminal Code of the Republic of Moldova are studied by the comparison method. From the comparison made the author comes to the conclusion that both the Romanian legislation and the legislation of the Republic of Moldova have fully complied with the international provisions in the field of regulation of international crimes. In addition, it is appreciated that both states, through their own legislative regime, have taken steps to make the national laws uniform with the international regulations, in order to provide a unitary framework in respect of sanctioning of the international crimes.
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This study addresses the problems determined by the fact that in the current Romanian criminal processual legislation there is a sign of equivalence between the moment of pronouncing the judgment and the moment of reading the minutes which contains only the operative part of the judgment. This aspect determines certain consequences that affect the rights of the persons who, in one quality or another, are involved in that criminal trial, resulting even in the execution of a minutes and in the conditional release before the reasoning of the appeal decision. For all these reasons, the study proposes that the reasoning of the judgment should be made before the pronouncement, which would remove all the above shortcomings and would strengthen the confidence of the litigants in the act of justice.
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In this study there are presented the main scientific arguments that can be taken into account for promoting a new discipline, as sub-branch of the Romanian criminal law, namely the criminal law of transports. For the scientific arguing of this approach, there have been briefly examined the system of Romanian law, the syntagms of branch, sub-branch and institution of our law. As regards the criminal law, reference has been made to the two parts, to some institutions and to the possibility of recognizing the criminal law of transports as sub-branch of the Romanian law. Likewise, within the scientific approach, it has been carried out a brief examination of the criminal law norms specific to the safety of traffic and of transports from Romania, insisting on the necessity of grouping them into a distinct normative act, recommending even a code of transports. The examination has considered the main elements of similarity between criminal law norms specific to the four domains of the national system of transports, namely: road, railway, naval and air.
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The study is dedicated to celebrating the centenary of the achievement of the national unity of the Romanian people and it is devoted to some of the legislative, doctrinal and jurisprudential evolutions and mutations occurred, during this period, within the institution of civil obligations. The author shows that the evolutions in question have their etiology and explanation in the social needs, determined by the specificity of the historical stages and of the political regimes which the Romanian society has gone through. His approach is placed in the general context of the most relevant changes that have occurred, over the years, in the texts of the Civil Code and of the related legislation. This explains why the study starts with an introductory paragraph, in which it is presented the general state of the old Civil Code and there are set forth its main changes, occurred after 1918.
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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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The Treaty of 9 December 1919 concerning minority protection was eventually signed by Romania only after fierce opposition grounded on the argument that the Treaty provisions contravene the principle of equal state sovereignty. The present paper is focused on examining the circumstances of the drafting of the 1919 Minority Treaty, on expounding its normative content and on depicting the situation of national minorities in interwar Romania. Finally, a general assessment of interwar Romania’s attitude towards minorities is undertaken.
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The study deals with the contract called supply contract, regulated in the current Civil Code, its particularities as opposed to the sales contract, the aspects of incidence of the provisions regarding the sale contract which completes the special regulation of the supply contract. There are analysed the substantive and formal terms of the supply contract, the rights and obligations of the contracting parties, the doctrinal opinions and the case law in the matter, the legal consequences of the failure to supply the goods according to the contractual clauses and the failure to pay the price, the conditions for subcontracting, as well as the aspects related to the contractual liability of the supplier towards the beneficiary, for the non-compliance with the subcontractor’s obligations.
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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. -
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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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 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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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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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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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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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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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.
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By the provisions of the Law No 122/2006 on asylum in Romania, as amended and supplemented, the legislator has chosen to derogate from the provisions of common law in the matter of recourse with regard to the time when it starts to run, having as starting point the moment when the judgment of the first instance court was pronounced, without having in view the presence or absence of the party concerned, as well as without taking into consideration the special situation of the asylum seekers from Romania, foreign citizens or stateless persons, most of them not speaking Romanian. This study intends to emphasize how, by this derogation from the processual civil provisions which represent the common law in the matter, it is violated the free access to justice established by the provisions of Article 21 of the Constitution of Romania, supporting the running of the time limit for recourse from the time of communication of the judgment of the court of first instance, and not from the time of pronouncement.
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Nu există vreun temei pentru a crea o ordine de preferință a declarațiilor, în sensul reținerii celor date în faza de judecată, în detrimentul celor date în faza de urmărire. Principiul liberei aprecieri a probelor nu permite distincția dintre probele administrate în faza de urmărire și cele administrate în faza de judecată și se opune ca cele din urmă să fie luate în considerare în detrimentul celor dintâi, numai pe criteriul fazei procesuale în care au fost obținute. Singurul criteriu care trebuie avut în vedere atunci când o probă este fie reținută pentru a contura o situație de fapt, fie înlăturată din ansamblul tuturor probelor existente în dosar este cel al coroborării probei în discuție cu celelalte probe administrate.
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Practica judiciară recentă s-a confruntat cu numeroase frământări în legătură cu îndeplinirea elementelor constitutive ale infracțiunii de abuz în serviciu, prevăzută în art. 297 C.pen. Potrivit acestui articol, constituie infracțiunea de abuz în serviciu „fapta funcționarului public care, în exercitarea atribuțiilor de serviciu, nu îndeplinește un act sau îl îndeplinește în mod defectuos și prin aceasta cauzează o pagubă ori o vătămare a drepturilor sau intereselor legitime ale unei persoane fizice sau ale unei persoane juridice” -
Aspecte generale privind incriminarea faptei de abuz în serviciu. În Codul penal în vigoare infracțiunile de corupție și cele de serviciu sunt prevăzute în două capitole distincte ale titlului V din Partea specială – „Infracțiuni de corupție și de serviciu”. Ceea ce caracterizează în principal grupul infracțiunilor de serviciu sau în legătură cu serviciul este valoarea socială apărată, și anume bunul mers al activității instituțiilor și organizațiilor publice, regiilor autonome sau oricăror alte persoane juridice cu capital integral ori majoritar de stat sau declarate ca fiind de utilitate publică și, implicit, apărarea intereselor legale ale persoanelor particulare. -
The new Civil Procedure Code brings some amendments in the procedure of administration of evidence by lawyers, introduced in the Civil Procedure Code of 1865 by the Government Emergency Ordinance No 138/2000. This study details this procedure trying to anticipate a few of the problems that may arise in the judicial practice at the time of using this modality of administration of evidence in the civil lawsuit. -
After the adoption and the entry into force of the Law on the administrative disputes No 554/2004, subsequently to the constitutional revision of 2003, the problems of the special administrative jurisdictions are of particular interest, being one of the institutions of the public law meant to ensure the celerity of the settlement of disputes, doubled by the guarantee offered to the litigants, concerning the compliance with the constitutional principle of free access to justice, the right to a fair trial and to the settlement of cases within a reasonable time. In this context, the study intends to make an analysis of the constitutionality of the special administrative jurisdictions regulated by the Law No 554/2004 and in some special normative acts, adopted after the constitutional revision from 2003, in relation to the provisions of Article 21 (4) of the Romanian Constitution revised and republished.
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The article proposes procedural solutions, in compliance with the requirements of the ECHR practice, when changing the legal classification given to the deed, in appeal, by appreciating that the change in the legal classification given to the deed by the act of referral can be made by an undeniable conclusion, prior to the debate on the appeal, or by the conclusion for reinstating the case on the list of cases, provided that the court has debated the appeal, pending further ruling also for the reason concerning the change in the legal classification, which it found to be well-grounded.
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In this article the author discusses from a constitutional perspective the concept of capital – commonly used by the Constituent Assemblies to designate within the constitutions the headquarters of the national sovereignty authorities. In his comments, the author presents the political conditions and the historical context of choosing Bucharest as residence of the princely court of Walachia mid seventeenth century and the evolution of the city from a historical, political and administrative viewpoint. The study presents in detail the changes suffered by the city of Bucharest during the Organic Regulations that have established administrative measures for its modernization. Bucharest became capital of the United Principalities in 1862 during the reign of Alexandru Ioan Cuza. Since then its status as capital has not been contested anymore, a situation also reflected in provisions of constitutional rank.
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Conform prevederilor art. 342 C.pr.pen., obiectul procedurii camerei preliminare îl constituie, printre altele, verificarea legalității administrării probelor și a efectuării actelor de către organele de urmărire penală. Cu această ocazie, judecătorul de cameră preliminară este obligat să constate toate încălcările legii, săvârșite cu ocazia efectuării urmăririi penale și să sancționeze aceste încălcări, dispunând una dintre soluțiile prevăzute în cuprinsul art. 346 C.pr.pen.
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Introducere. Practica judiciară recentă s-a confruntat cu numeroase frământări în legătură cu îndeplinirea elementelor constitutive ale infracțiunii de abuz în serviciu, prevăzută în art. 297 C.pen.
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The complexity of the problem of configuration of the branches of law requires the recourse to various courts, which, without being infallible, can provide resources to legitimize a solution or another. In this regard, there may be invoked a series of coordinates such as the spirit of the law, as core of the legal knowledge, formed by the contribution of the fundamental concepts, of the principles of law and of its finalities, the interdisciplinary analyzes of the legal phenomenon or the meta-theoretical level of the scientific approach. With regard to this latter point of reference, we are trying to express wider considerations that emphasize plans of specificity, of customization and of specialization, but also processes of generalization and of integration. It is argued that any approach is entitled to cognitively participate in shaping the theoretical or practical solutions. However, no point of view can be declared unique, in a dogmatic, exclusive manner, or infallible, being necessarily open and capable to receive other information in critical or innovating terms, to convert them into a dialectical process of relative and imperfect knowledge, but always perfectible, in relation to a society and to a historical time.
