-
The article describes the common law system in terms of sources of law, in the British system, the term legislation being used to describe the statutes of Parliament and delegated legislation, and the formula case law to designate both common law and equity. Statute law or Acts of Parliament represents in the law system of Great Britain the equivalent of the laws adopted in the Romanian law by the Romanian Parliament, and the term delegated legislation describes all those rules adopted by authorities other than the Parliament of the United Kingdom, but under its authority. At the same time, it is characteristic of the British jurisprudential system to publish cases settled by the courts of law or to report them, this activity being carried out by lawyers, by a barrister or by a solicitor. -
How firm the authority of the state should be and how wide the margin of freedom of the citizens of a state should be are questions without a convenient answer for either the state, or for the citizen. This is a truth that can be insisted upon for a long time, but without satisfactory results. The citizen has always demanded from the public power a sphere of his freedom as wide as possible and the public power has been and is, in principle, ready to retain an extra authority over the citizen. The author aims in this study to show that both the authority of the state and the vocation of freedom of the citizen must slide between reasonable and legitimate limits, so that the state can exercise its role and social functions established through constitutional norm and put in the service of the common good of the society and that the citizen can enjoy, without any illegitimate restraints or restrictions, a freedom (recognized and guaranteed by the state), which allows him to develop his personality and dignity as a human being, in the general interpersonal relations and in its relations with the state, in a determined social-historical, economic, political, cultural, religious context, etc. The author also shows that the relationship between authority and freedom is in its essence a fragile one, in which the state may have, in certain political circumstances or of other nature, leviathan temptations, with oppressive effects on the constitutional freedoms, a position from which it reproduces tools of force in ever new forms and it restricts the exercise of the citizens’ rights. The author draws attention to a serious social danger that threatens the foundations of a democratic government: the excess of authority and its repeated, illegitimate and unjustified use can be premises of the establishment of an authoritarian regime, in front of which the citizen is powerless. The excess of authority and the unlawful violation of public liberties call into question the democratic character of the state. In its turn and also in certain given political or social circumstances, the associated citizen or citizens may be tempted to resort to extreme forms of manifestation, claiming a higher degree of individual or collective freedom, to the detriment of the original authority of public power.
-
The review is the only legal remedy that can be declared against the judgments of first instance pronounced by the administrative contentious sections. The former regulation of the Civil Procedure Code established that the review is devolutive, only inso far as the reviewed judgment cannot be contested by appeal. At present, being an extraordinary legal remedy, the review can only concern grounds of illegality of the judgment pronounced by the court of first instance. The present study has as object the analysis of the grounds for cassation listed by the Romanian legislator in Article 488 of the Civil Procedure Code from the perspective of the matter of administrative contentious. Thus, each ground for cassation will be briefly analyzed separately, from the perspective of applicability in the processual stage of review carried on before the administrative contentious courts. The analysis contains explanations of the normative texts, as well as examples from the national judicial practice, in which the R omanian courts have applied the grounds for cassation corresponding to the cases brought before the court. The aim of the research is to identify in the national practice the applicability of the grounds for cassation listed by the legislator and to present their effectiveness, following that, in the concluding part of the study, possible remedies regarding the currently existing grounds for cassation be proposed.
-
The premise of this study is that the current legislation uses two legal notions with relatively different names, that is the „legitimate interest” in the administrative contentious procedure, regulated by the Law No 554/2004, and the „interest to act”, used in the Civil Procedure Code, both representing conditions of admissibility of the judicial action (in administrative contentious and, respectively, civil action). The aim pursued by the author was to observe whether these legal notions are synonyms or they differ, in terms of their processual connotation, depending on the nature of the legal action promoted. In this regard, the author has compared the two legal notions, revealing the similarities and differences between them, and, at the end of the study, he has set out the theoretical and practical arguments for the purpose of recognizing their processual autonomy.
-
The study aims to present in a comparative manner the post-calculation clauses and the escalation clauses in international trade contracts, while presenting the main clauses of both categories, including the varieties of the well-known cost+fee clause. At the same time, the study gradually analyzes the structure of each type of clause, highlighting the main advantages and disadvantages that accompany the introduction of these clauses in trade contracts, both from the perspective of the owner and from the perspective of the contractor, who tries to transfer the risks to the owner, which in some situations may, paradoxically, even benefit from such a situation.
-
The study aims to analyze the situation in the domestic law of the application of the institution of transfer of undertaking in relation to the exigences of Directive 2001/23/EC as interpreted by the Court of Justice of the European Union. The premise of a correct interpretation and application of this institution is the knowledge of the essential aspects developed in t he case law of the Court of Justice of the European Union that analyzes the scope of application ratione materiae of Directive 2001/23/EC, among which are emphasized the distinction made by the Court between labour force-based companies and companies whose activity necessarily involves the exploitation of goods, as well as the autonomous meaning attributed to the notion of „conventional assignment”. Furthermore, the author shows that the regulation of the notion of transfer of undertaking from the domestic law restricts the scope of application ratione materiae of the Directive 2001/23/EC, non-compliant conditions being imposed, such as the transfer of the property right from the assignor to the assignee and the existence of a contractual link between the assignor and the assignee. The analysis of the judicial practice of the national courts and of the opinions expressed in the doctrine shows that a unitary point of view has not been outlined with regard to the possibility of applying the principle of conforming interpretation of the domestic law in order to ensure the full effect of the provisions of Directive 2001/23/EC. In a first opinion, it is argued that the full effect application of the Directive from the perspective of the scope of application ratione materiae can be achieved through a conforming interpretation of the domestic law which allows to leave the contrary internal legal provisions be disregarded, without thereby reaching to a direct application of Directive 2001/23/EC. According to the second point of view, the extension of the institution of the transfer of undertaking over the express normative content of the internal provisions, in the absence of any legal operation of assignment or merger, without having as object the property right, would be an interpretation contra legem. In compliance with the limits of the principle of conforming interpretation stated in the case law of the Court of Justice of the European Union, the conclusion supported by the author of this study is that the conforming interpretation of the national law is an effective remedy for the full application of the provisions of Directive 2001/23/EC.
-
-
-
In the context of the requirement to guarantee a higher level of protection of the health and safety of workers, imposed in the field even at European level 1 , the offences against labour protection are one of the ways that give expression internally to the highest legal protection in the field, satisfying both the special prevention in the field by preventing the occurrence of such events, sometimes having the most serious consequences and the need to punish more severely such deeds, when special social danger thereof requires so. The complexity of offences against labour protection lies in the often omissive and culpable conduct of the perpetrator, sometimes related to a particular specificity of the causality link between this and the state of concrete danger thus created, with special implications on the imputability of the deed, in the context of the difficult interpretation of the vast special legislation, which must, therefore, be known and correctly applied. The relevant doctrine was initiated, starting precisely with the comment on the first incrimination of this sort in the Criminal Code of Carol II of 1936, and relevant case law was found, including from the constitutional contentious court, with regard to the compliance with the principle of legality of the incrimination in terms of predictability of the rule of incrimination, short references being formulated to the European law in the matter of safety and health at work and of comparative law. Our analysis will cover the entire content of the specific offences, with reference to both the objective and the subjective typicalness of the offences against labour protection, including their pre-existing conditions, with the declared aim of supporting the practitioners in the field.
-
The financial law relations are relevant in the extended dynamics of the public law, as a reflection of the importance of public financial resources and of the technicality of the legal elements in the budgetary procedures. This study positions, in this context, a traditional institution, namely the preliminary procedure, as a space for the manifestation of the dynamics and points of tension deriving from legal conflict relations revealed as a result of the audit missions of the Court of Accounts. The analytical approach organized in a spectrum from general to special highlights the working hypotheses, the functions, the object and the finalities of the preliminary procedure in the matter of budgetary law relations.
-
In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework.
-
The most striking word that illustrates the relationship between Romanian law and European law seems to be the word „marking”. Among the various nuances that can be assigned to the meaning of this word, three meanings are relevant from the perspective of the topic addressed by this paper. Thus, among others, to mark means (i) to influence in a significant way, or (ii) to bear a mark that illustrates a membership, or more precisely (iii) to change a destiny. All of these nuances are defining in order to describe the decisive and irreversible „imprint” that European law has made, is making and will make on our domestic law. Through this scientific approach we have set out to address the implications of this complex structure which involves a multidimensional union that includes elements of supranational law, following the paradigm of the interference. The example that we will focus on is the area of consumer protection, where we will also address issues regarding constitutionality in relation to domestic law, but especially in relation to European law. We will consider both the past and the future, but, naturally, we will focus our attention on the present. In the context of the current COVID-19 pandemic, while not focusing on any medical or health matters related to the pandemic, but rather on its ties with the emergence of a new global economic, financial and banking crisis, we will address the link between European Union law and domestic law.
