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The most controversial aspect in the criminal judicial practice, in the situation of invoking the plea of relative nullity of a criminal processual act, is to prove the existence of a processual injury and, related thereto, to prove the sufficient seriousness of the injury caused to the party or to the main processual subject which justifies the cancellation of the act. Most of the times, the party or the subject that invokes the nullity is put in the extremely difficult position to persuade the judicial body that processual injury is sufficiently serious to justify the drastic sanction of nullity. That is why we have considered that it is required a thorough assessment with regard to the standard of probation of injury, of proving the sufficient seriousness of the injury suffered in order to bring about the sanction of nullity. The conclusion we have reached is that the processual injury suffered is sufficient to bring about the sanction of nullity when the violation of the processual rights or guarantees of the parties or of the subjects puts them in the position to no longer be able to defend themselves with the same chance they would have defended themselves if their processual rights had not been infringed. -
Although at first sight the procedure of cancellation of documents, regulated by Article 5491 of the Criminal Procedure Code, seems to be an institution that should not create essential problems, we can see at a closer analysis that certain provisions of the criminal processual rule are at least questionable. Moreover, the aspects related to the unconstitutionality of the provisions regarding the active legal capacity of referral to the judge in this respect have been subject to the analysis of the Constitutional Court of Romania. The problems of interpretation may also persist on the object, on the procedure itself, on the competence to settle the referral or on the limits of investiture of the preliminary chamber judge. Under these circumstances, in this paper we intend to express a point of view in relation to these aspects. With regard to the object of the referral and the limits of investiture of the preliminary chamber judge, we will analyse whether the cancellation of documents, in this procedure, concerns only the main documents or the subsequent documents as well, and whether the act sought to be cancelled is regarded in the sense of instrumentum or negotiumiuris. Another problem that may arise within the settlement of the referral with regard to the cancellation of documents is represented by the settlement competence. In theory, this will pertain to the preliminary chamber judge of the court which would have the competence to examine the case on the merits, certainly, according to the pre-established criteria of the criminal processual rules. Under these circumstances, if there aren’t any discussions in relation to material competence, this being given by the juridical classification of the deed for which the dismissal of action, respectively by the abandonment of the criminal prosecution, has been ordered, with regard to personal competence, we will clarify some aspects. At the same time we will try to answer an apparently simple question, namely: is it legally possible to administer evidence during the settlement of such a referral?
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This study presents a possible legislative incoherence, generated by the current form of Article 130 (3) of the Civil Procedure Code, concerning the invocation of the lack of competence of private order of the courts, which may lead to the situation of an incompetent court hearing a request, an abnormal situation in the conduct of a civil legal procedure.
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An application of the new technologies has involved a modern regulation, and the European states have received the electronic form of the patient file and have transposed it into a relatively recent regulation, and the novelty of the problems and the strict dependence on the IT platforms have led to successive changes in the legislation, at the level of several states. Adjustments, correlations, adaptations took place at the law-technology border, in relation to the „physical” reality of the national medical system. The electronic health file does not have the role of replacing the „classic” file, in written form. The latter remains in the circuit of the health system and preserves its usefulness, and the medical act is not conditioned by the existence of an electronic file. From the DES perspective and for the usefulness of the approach undertaken, some guarantees of the protection of private life and personal data were verified. The secrecy of the data concerning health is no longer just a „privacy” between the patient and a limited number of people, but is „displayed” on an IT platform, to which several natural persons/entities have access, the technical access key (matrix, user, password) is entrusted to the users through the administrator, given that the Internet is an environment susceptible to the generation of security breaches. Granting access to the entire electronic file implies that the medical staff is aware of all the information and all the health problems of a person. The secret becomes a „shared” one and the central problem (of the patient) is the control – over the private life, over their own personal data, over the information that, otherwise, they would not want to be disclosed in a virtual environment. At issue is not only a balance between public interest (public health) and private interest or between personality rights that can end up in a conflicting position. If it will be proven that the interest of the medical care coordination prevails over the patient’s acceptance, then the electronic file will remain outside the true control of its owner. But, if, on the contrary, the patient has the prerogative of control (with justified, strict, limiting exceptions), then his right to limit access to the file will be recognized. -
In this study, the author aims to highlight a number of manifestations of the principle of availability in civil proceedings that have been sanctioned for the abuse of procedural law. From the analysis of the judicial practice, we identify a multitude of situations in which the person’s right to file a lawsuit is exercised for purposes other than the one for which he was recognized by law, which was sanctioned by the application of a judicial fine. The right to sue and the right to appeal must be exercised in good faith, in accordance with the purpose enacted by the legal provisions, and not to pursue the production of a detrimental result to the adverse party. -
The action regulated by Article 1064 of the Civil Procedure Code has a special regime, derogating from the classic situation of tortious civil liability, regulated by Article 1357 of the Civil Code. The practical situation of this action is somewhat uncertain, as there is no unitary judicial practice that decides the legal nature of the action for damages provided by Article 1064 of the Civil Procedure Code. In these conditions, we considered it opportune to analyze the legal nature of the action for damages regulated by Article 1064 of the Civil Procedure Code, in a parallel vision with the provisions of Article 1357 of Civil Code, which regulates tortious civil liability. All this, by reference to those established by a recent court decision resolving such an action for damages. In the present study we tried to offer a perspective and a practical analysis on several situations generated by the application of Article 1064 of Civil Procedure Code. -
Prin cererea de chemare în judecată adresată Judecătoriei Constanța la data de 11 iunie 2018, contestatorul S.P. în contradictoriu cu intimata Direcția Generală Regională a Finanțelor Publice Galați – Administrația Județeană a Finanțelor Publice Constanța a solicitat instanței să dispună anularea executării silite înseși și a actelor de executare silită subsecvente, inclusiv Somația din data de 30 martie 2018 și Titlul executoriu din data de 30 martie 2018 emise în Dosarul de executare xx, respectiv să oblige intimata la plata cheltuielilor de judecată.
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Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2 . Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3 .
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In the first part of the study, the author emphasizes the importance of the legal remedies for making justice more efficient, one of the important objectives of any reform programme in the field. The finding is natural, since a good regulation of the legal remedies can make a substantial contribution to the resolution of the trials within a reasonable time, in order to use only a unanimously accepted phrase. The general tendency of the contemporary procedural regulations is to carry out a simplification of the legal remedies and to avoid congestion of the courts, especially the courts of appeal and the supreme courts. For this purpose, the vast majority of the analyzed regulations establish some limitations – value-wise – of the exercise of the legal remedies or establish means of filtering the reviews, and in some countries even of the appeals. The author also notes that in some procedural systems the ordinary legal remedy of the appeal cannot be exercised in low value disputes. One of the author’s conclusive remarks is that the filtering systems of some legal remedies are efficient and contribute to the resolution of processes with celerity. Another final conclusion is that the Romanian legislator has abandoned such an approach, and this should be reconsidered in the future.
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The study addresses good faith as a uniform, but flexible, multi-faceted concept within contractual relationships. After analyzing the ambivalent character of the concept of good faith, in antithesis to the abuse of law in the form of bad faith and contractual wrongdoing, the study leans on the functions of good faith, which materialize the principle at its institutional and formal dimensions, namely the interpretative function of contracts, the completive, moderating or limitative, and adaptive function. In approaching the contractual illicit and the bad faith, as a basis of contractual liability, the study shows that good faith is a standard in quantifying them, and the legal language of good faith is a supreme norm of the contractual law, in a means of contractual jurisdiction, meant to limit the principle of contractual freedom.
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The present study aims to emphasize the current state of the principles of ethics in the field of artificial intelligence world-wide, respectively in the Western world (especially the European Union and the United States of America), Russia and China. The author set out to create the necessary debate framework for the importance of raising awareness of this area and of its impact on everyday life. Finally, the study also presents the author’s conclusions on what is ethically important at its intersection with the field of law. Being a new constituent element of contemporary reality, artificial intelligence can no longer be ignored. It is obvious that at present there are missing the binding regulations which give an adequate answer to the problems generated by the arising and functioning of artificial intelligence. Due to the extraordinary, unknown, even unpredictable implications, it will not be possible to create the specific legislation in such a way as to meet the expectations unless a rigorous ethical analysis is done in advance. The study identifies documents issued by state authorities and private entities in which an ethical perspective is taken in relation to the field of artificial intelligence and draws a conclusion on its importance. The author also offers his own perspective on the important ethical principles, in particular, from the perspective of the legal field.
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The apparition of the first Administrative Code of Romania – an essential legislative document for the activity of the public administration, for the life of the Romanian State, as a whole – brings, among other things, a significant novelty: the regulation of the legal regime applicable to contractual staff. Such a regime is a justified option of the legislator, taking into account the particularities of this category of personnel – an integral part of those who perform the work as employees. The study carefully analyzes the specific legal norms that apply to the contractual staff and solutions are offered for their practical application. It is concluded that two categories of legal norms produce their effects: the first is constituted by the norms specific to the contractual staff, and the second is formed of the norms that apply also to public servants. Although both categories of norms are part of the Administrative Code, they – respectively those that apply to the contractual staff – are also integrated as part of the labour law, being at the confluence of labour law with administrative law. The common law for the regulations regarding the contractual staff can be found in the norms of the Labour Code.
