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Globalization, the changing concepts of the family definition and the emergence of new medical techniques for conceiving children have led to the emergence of substitution maternity and the issue of inheritance rights for children born of such a procedure. At international level, no comparable moral or legal basis can be identified in this area. The creation of a common legal framework or the advancement of a large-scale international unification of substantive law or rules on the recognition of the effects of foreign laws seems to be a distant goal to achieve. The issue of the inheritance rights of children born of surrogacy motherhood is a very complex one and currently without legislative protection. On European Union level, European Regulation 650/2012 has been in force since 2012, but there are no provisions on the situation of inheritance rights deriving from a surrogacy contract. The study aims to analyse the general concepts recognised in international, European and national law with regard to the creation of a legal framework as structured as possible for the protection of the inheritance rights of children born of substitution maternity, and to understand how this medical practice works. Another objective will be to analyse the decisions of the European Court of Human Rights, the decisions of the Court of Justice of the European Union and the national courts decisions, in order to find solutions on how to protect inheritance rights in such a situation. -
Legal arrangements pertaining to neighbours’ relationships are permeated by the idea of community. A textbook example is the right-of-way, which arguably breaches the sacred inviolability of private property in its quest to provide adequate access to the p ublic road for a landlocked parcel. The present paper examines the manner in which the Civil Code of Romania (2009) managed to bridge the unbridgeable, i.e., the individualist essence of private property and the collectivist flavour of neighbours’ relationships. Methodologically, this article debuts with a brief historical and comparative study of the right-of-way from the viewpoint of related legislations (i.e., the French Civil Code and the Civil Code of Quebec), it examines the terminology employed by the legislator and analyses the legal regime of said institution. The author argues that the cornerstone of this fine balance is the legal nature of the right-of-way: in denying it the stature of a real right (ius in re), the legislator established this sui generis right as a legal limit to the exercise of private property. Consequently, the right-of-way is solely a creation of the law, whereas only its manner of exercise can be settled by way of contract, continuous usage or court decision. Therefore, the author stresses the semantical inconsistency encountered within legal literature, which confuses the very origin of the right-of-way, which is inherently legal in its nature, with the concrete manner of usage, which the legislator left to the will of the contracting parties or the judge summoned in the event of litigation, respectively. In addition, the author argues that a land book entry may cover the right -of-way only in the form of a notation, and not as a compulsory registration, either permanent (intabulation) or provisional, since the latter two solely concern tabular rights, which solely consist of real rights on real estate.
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The operation of establishing the execution regime requires the individualization commission to comply with the limits provided by Articles 33–38 of the Law No 254/2013, to take into account the provisions of Article 88 of the Government Decision No 157/2016 for the approval of the Regulation for the application of the Law No 254/2013 referring to the procedure for establishing the execution regime, as well as those of Article 41 of the Law No 254/2013 on the application of subjective and objective criteria to the individualization of the regime of execution of custodial sentences (duration of conviction, conduct, personality, degree of risk, age, health, identified needs and possibilities of social reintegration of the convicted person). However, the practice has revealed certain aspects some of which we will exemplify in the study, in case of change of the detainee’s legal situation, which the legislator did not take into account or ignored at the time of adoption of the execution law, and for which he did not issue transitional provisions either, so that, in respect of the institution of the enforcement regime, a number of problems of interpretation and application of the law arise, aspects that have remained unregulated even today, neither by law, nor by appeals in the interest of the law, situations generating non-unitary practices, starting right from the record offices within the places of detention.
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The judicial activity of the courts of law is meant to guarantee the fundamental rights and freedoms of the citizens, to ensure the observance of the supremacy of laws and to prevent the abusive exercise of power by the state representatives, thus having a fundamental function manifested in the form of the judiciary, within the constitutional architecture of Romania which is based on the classical theory of the separation of powers in the state. The Fundamental Law and the infra-constitutional legislation contain provisions meant to guarantee the independence and impartiality of the representatives of the judiciary, necessary to ensure the fulfilment of the jurisdictional function by these, respectively the correct interpretation and application of the laws. The increased importance of the creative role of the judges has led to its definition in the doctrine as being jurisprudential law, lately a cause for its strong development being the very increase of the activity of legislation, of regulating the conduct of the subjects of law by the state, in a multitude of areas of social and economic life. The amplification of this operation has led to the impossibility of regulating these conducts in detail by law, so that the executive and, respectively, the judiciary took over the task of ensuring the completion of the general framework provided by the legislative. The possible conflict between the legislative activity and the interpretation given to the legal norm by the judge may lead to situations in which the right be recreated, by way of interpretation. The current normative framework applicable in Romania allows to engage the liability of magistrates (prosecutors and judges) for the defective way in which they exercise their professional activity, their liability can take several forms, namely criminal, disciplinary or civil liability, depending on the consequences they generate.
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The system of protection of human rights and fundamental freedoms introduced by the European Convention on Human Rights still raises questions about the interpretation and application of its provisions. In this study, we will focus on the problems concerning: EU accession to the European Convention on Human Rights, the relationship between the CJEU and the ECHR, and we will detail the decision of the ECJ Opinion 2/13 on the draft agreement for EU accession to the European Convention on Human Rights. By the present study we intend to analyze the implications of the future EU accession to the European Convention on Human Rights, given the long history of the protection of fundamental rights. We will start with the way in which the protection of fundamental rights is seen at international level, and then we will analyze how the EU intends to achieve the protection of fundamental human rights. We will bring into discussion the main normative acts in the field, the way in which the collaboration between the CJEU and the ECHR is carried out, pointing out the issue of the primacy of European law over the national one. The study aims to analyze the general concepts recognized in the international law regarding the creation of a better structured legal framework regarding the protection of fundamental human rights and the issue of the primacy of EU law regarding the future accession to the Convention, in particular in relation to the Negative Opinion 2/13 of the CJEU. We will analyze the most important decisions of the ECHR and the CJEU in order to corroborate the theoretical elements with the practical ones. As concerns the research methods, mainly the comparative and the quantitative method have been used, with elements that make reference to the method of sociological and historical interpretation. From the point of view of the research results, it was concluded that, from a doctrinal point of view, there are two sides: the supporters of EU accession to the European Convention on Human Rights, in the context of receiving EU legal personality, but also of inserting Article 6 TEU which provides the obligativity that EU becomes a party to the Convention, and those who oppose, in particular the CJEU, as well as the practitioners and the doctrinaires of the European law who invoke the primacy of European law over national law, but also the issue of organizing the European legal system, by specifying that the CJEU would fall under the jurisdiction of the ECHR, and the ECHR, in its turn, would intervene in the process of „constitutional” development of the EU.
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In the hypothesis of foreign arbitration awards, in order to obtain the approval of the enforcement, pursuant to Article 666 of the Civil Procedure Code, to the application for enforcement, the creditor will have to attach the foreign arbitration award translated by an authorized translator, under the conditions of Article 150 (4) of the Civil Procedure Code, and the final judgment by which it was approved, under the conditions of Article 1127 et seq. of the Civil Procedure Code, the enforcement on the Romanian territory of the respective arbitration award. To the extent that the foreign arbitration award on which the application for enforcement is based is not translated by an authorized translator, the court executor should issue a conclusion refusing to open the enforcement procedure, pursuant to Article 665 (2) of the Civil Procedure Code, for non-fulfilment of this condition provided by law. If, however, the court executor would proceed, in the absence of the submission of the foreign arbitration award translated by an authorized translator, to open the enforcement procedure and would request the approval of the enforcement, we consider that the application for approval of the enforcement should be rejected, pursuant to Article 666 (5) point 2 of the Civil Procedure Code, since, in such a situation, the court executor does not prove, in the incidental legal conditions, the existence of an enforceable title.
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In a modern society, which faces many challenges, from the perspective of complying with the legal rules in force regarding the payment of taxes and duties owed to the state, in which the electronic means of payment and, mostly, the system of payments in virtual currencies, not very strictly regulated nowadays in any part of the world, it is necessary to take special legal measures to control and reduce socially dangerous deeds, such as tax evasion, money laundering, the appropriation by state officials of immeasurable assets, from doubtful sources, unverified or even illegal. The Romanian society has also not been exempt from such legislative and organizational concerns, especially since the specific challenges of an emerging and developing society and in correlation with good European practices have been much more pronounced. From this perspective, the Romanian legislator has designed an ingenious system of control and disclosure of assets acquired under conditions that exclude the justification of their sources of funding by the beneficiaries of these values, being integrated a legislative and administrative system for submission by the civil servants of some asset declarations and an organizational set for carrying out thorough verifications, by a specialized institution, called the National Integrity Agency (hereinafter referred to as ANI). However, in order for the ANI notifications not to unnecessarily burden the role of the courts of appeal in the country, by the Law No 115/1996 for the declaration and control of the assets of dignitaries, magistrates, of some persons with management and control positions and of civil servants, corroborated with the Law No 144/2007 on the establishment, organization and functioning of the National Integrity Agency and with the Law No 176/2010 on the integrity in exercising public functions and dignities, amending and supplementing the Law No 144/2007 on the establishment, organization and functioning of the National Integrity Agency, as well as amending and supplementing other normative acts, it was conceived an integrated institutional framework, through which ANI notifies the relevant cases from the perspective of unjustified assets to a specialized structure, integrated in the system of each court of appeal, called the commission of investigation of assets, which performs a preliminary verification of the evidence attached to the ANI notification and it can take the measure of notifying the court of law with this notification, if the origin of the assets acquired by the civil servant is unjustified, it may close the case, if the source is justified, or it may order the suspension of the control and the referral of the case to the competent prosecutor’s office. The present study intends to reveal the multiple valences of the acts of one of the most specialized institutions for verification and control of the assets of dignitaries and civil servants from Romania.
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In this study, the author intends to emphasize a number of rights by which the procedural availability is manifested in the phase of enforcement, whose purpose is to carry out the provisions contained in the enforceable titles. The initiation of the second phase of the civil trial, by notifying the court executor, as well as the moment of registration of the application for enforcement are of special importance. The principle of availability is also manifested by the abandonment of the enforcement procedure, the waiver of the claimed right, as well as by the possibility of the parties to find, by mutual agreement, convenient ways of exercising rights and of executing obligations, by concluding a mediation agreement.
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Decree No 40/1953 marked the transfer of the competence to settle the non-contentious succession procedure from the courts to the former State Notaries. This competence was also maintained by the new regulation of the activity of notaries public, the Law No 36/1995. However, neither the aforementioned Decree or the Law No 36/1995 in its original version acknowledged the possibility for interested persons to resolve amicably those disputes resulting from the issuance of the certificate of succession without complying with certain legal provisions that could lead to its annulment. Starting with 2013, the litigants benefit from a new legal way of declaring the nullity of the certificate of succession, the present study proposing its analysis and also the comparison with the other procedure already established for annulling the certificate of succession, the judicial procedure. The two procedures led to lengthy debates in practice, given the double controversy over the legal nature of the certificate of succession and the legal regime of conventional nullities, the legislator of the new Civil Code indicating only the possibility of declaring a nullity through conventional means, letting the doctrine define its effects. We have chosen as the focal point of this research treating these controversies born in the judicial and notarial practice, both encountering some difficulties, for example, in qualifying the type of nullity invoked according to the interest protected by the violated legal norm or establishing who can file an action for the annullment of the certificate of succession. These issues determined us to try to answer the questions that have risen in the judicial and notarial practice regarding the succession procedure and the annulment of the certificate of succession, trying through this research to offer them the most suitable answers, taking into account especially the spirit of the law, without neglecting its letter. Thus, we mainly analyzed who can file an action for the annulment of the certificate of succession, the issue of the extinctive prescription of this action, as well as the regime of the amicable nullity applicable when the heirs agree on declaring the nullity of the certificate of succession.
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The study analyzes the current account contract as an effective technique for simplifying long-term contractual relations, in the context of a large business volume, with its lending function. The legal definition of the contract has revealed that this contract performs, through the novation mechanism, a function integrating receivables coming from other contracts and operations of the parties in the current account, and the settlement of accounts is carried out through the offset system. In addressing the legal characters of the current account contract emphasis has been placed on its intuitu personae character and arguments have been brought for combating the thesis of the ancillary character of this contract in the relation to the contracts and operations generating receivables recorded in the account. The effects of recording of the receivables in account (of extension of maturity and of unavailability) and the category of receivables incompatible with this recording in account, as well as the legal consequences of closing the account before deadline, which pave the way for the execution of the credit balance, have also been analyzed. The effects of the recording of receivables in the account have also been analyzed from a fiscal perspective, related to the application of VAT and of the profit tax. The current account was also analyzed in the context of the insolvency procedure, as a means of maximizing the debtor’s assets and of its beneficial effects in the process of judicial reorganization. The main effects of the current account contract have been discussed under the translative aspect of the property right, marked by the moment of recording the receivable in the account, under the aspect of novation, as a legal instrument of integration in the account of the receivable, generated by the original contract or by the operation performed between parties from the perspective of offsetting the two amounts of receivables, from which the credit balance results, as a liquid and exigible receivable, susceptible to execution. The examination of the side effects of the current account contract refers to the interest applied to each receivable registered in the account and to the credit balance, as well as to the commissions and expenses related to the legal operations generating the receivables recorded in the account. Regarding the closing of the account, the two hypotheses have been analyzed, the one related to the final closing of the account, which coincides with the termination of the current account contract, and the one regarding the periodical closing, as well as the legal regime of the credit balance, resulting from the offset within each of the two hypotheses. The aspects regarding the presumption of approval of the credit balance, of its contestation after approval, in connection with the material errors and the legal action for the rectification of these errors have not been omitted either. Finally, there have been discussed the modalities of termination of the current account contract on the deadline and by denunciation, in respect of the contracts concluded for an indefinite period.
