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Announced in theory, present in practice, and recognized everywhere, „flexible law” is seeking its own accreditation at a doctrinal level. Covering a number of highly heterogeneous normative instruments (directives, advices, charters, codes of conduct, et al.) having as a common element the fact of being imposed not by constraint, but by the adhesion of its recipients, it manifests itself specifically in international law (as „soft law”), EU law (as a method of governance), or internal order (as a lever of achieving the functions of the state). In relation to proper law („hard law”), flexible law manifests itself either as its precursor, in the process of adoption, a companion in its enforcement, or, in certain situations, as a substitute. Knowing diverse national experiences, flexible law presents itself as a factor of simplification and improvement of the quality of legal regulations. -
As the author herself states, the purpose of this study is to identify the sources of the international law which grounds the interdiction of the „hate speech”, as well as the manner of their perception and application at European level, particularly in the case-law of the European Court of Human Rights. In this respect there are presented: the foundations of the interdiction of the „hate speech” at universal and European level; the elements analyzed in this respect by the European Court of Human Rights (reference to the context of the speech; instigation to hatred on grounds of race and religion; negativistic and revisionist speech); the regulations adopted by the Council of Europe and by the European Commission against Racism and Intolerance; the normative framework of the European Union on racism and xenophobia, and, finally, the reference of the current Romanian criminal legislation to international exigences.
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Inconveniences of neighbourhood are regulated autonomously in Article 630 of the new Romanian Civil Code, as judicial limits of the right of property. The paper analyzes the inconveniences of neighbourhood in the light of the relation to the abuse of right, because it has been for a long time the main instrument of settlement of the conflicts arisen in the state of neighbourhood. In this regard the author emphasizes that, unlike the abuse of right that involves, in all its forms of manifestation, the existence of guilt and the illicit act, by engaging the tort civil liability, the inconveniences of neighbourhood oblige the owner to provide reparation only if they are abnormal and are produced by the normal and licit exercise of the right. The foundation of the obligation to repair the created inconvenience is equity, the only one that can adjust to the conditions required by the legal situation specific to abnormal disturbances of neighbourhood. By applying equity, the court sets the judicial limits in the exercise of property, separate from the legal limits or from the conventional ones, expressly regulated by the new Civil Code, for private interest. -
Within the new Romanian law for preventing insolvency and for insolvency (Law No 85/2014) a regulation of novelty is represented by the provisions of Article 182 (1) and (3), according to which the judicial administrator/judicial liquidator may be held liable for exercising his duties in bad faith or in gross negligence, but not if he acts in good faith within the limits of the duties provided by the law and of the available information. This new regulation in the matter is analyzed in detail in this study.
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The amendments brought to the new Civil Procedure Code by the Law No 138/2014, especially in the matter of enforcement, have produced significant mutations in the matter of administrative disputes as well. In the context of the amending provisions brought to the Law on administrative disputes No 554/2004 by the Law No 138/2014, this study intends to make an analysis of the judicial remedies that may be exercised against the judgments delivered by the background courts in matters of administrative disputes, as well as an analysis of the procedure of enforcement of the final judgments, delivered by these courts.
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The problem of admissibility of revocation of the legal acts of labour law issued by the employer has been disputed for more than four decades. Within this framework, this study supports the affirmative solution, namely that of revocability by the employer of all its unilateral acts. Essential arguments consist in the specific nature of the labour legal relations, specific nature which excludes the application of the civil rules as rules of common law, according to Article 278 (1) of the Labour Code. While in the civil law the unilateral legal acts are, as a rule, irrevocable, in the labour law – an autonomous branch of law – the same category of acts are revocable.
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The current modality of regulating the institution of suspension can raise two categories of problems: on the one hand, problems of systematization of the matter, problems of qualification of the various cases of suspension as being of law, on the initiative of the employee, on the initiative of the employer or by the parties’ agreement, problems of drafting of suspension assumptions and problems of drafting of the regulation. On the other hand, the current regulation also creates difficulties of substance, which can lead to confusions and inconsistencies. Based on the consideration of the legislator’s option to group the different causes for suspension within the same chapter – otherwise a meritorious option –, this paper intends, however, to draft de lege ferenda proposals for the improvement of the regulation, both on the substance and in terms of form of the regulation.
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The (Romanian) Labour Code (Law No 53/2003 – republished) regulates (Article 88 et seq.) the legal institution of labour law of the „temporary labour contract”, which has Directive 2008/104/EC of 19 November 2008 as „European” legal basis. In the legal literature of labour law from Romania a controversy has arisen, whether the „mission” performed under a „temporary labour contract” may be considered or not as secondment [within the meaning of Article 45 et seq. of the (Romanian) Labour Code]. The position of the author of this study is firm, in a negative way, and, as a result, the employee in question is not entitled to the special rights regulated for the employees on secondment provided by Article 46 (4) and Article 47 of the Labour Code.
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The regulation of the dismissal of employees in the national legislations is carried out, as a rule, either in casuistic system, or conditioned by the existence of a justified reason, or without imposing the requirement of no reason. In Romania, the regulation of the dismissal has in view the cases strictly provided by the Labour Code and any other special laws. However, there are some states of the European Union, as well as on the North American, South American, African continent or on the Australian continent, where the possibility of dismissal without cause of employees is admitted. In the spirit of flexibilization of the labour relations, in this study it is deemed useful that the dismissal without cause of employees be regulated in Romania as well, as an exception from the casuistic dismissal, and only with application limited to certain categories of employees (those pursuing an intellectual activity and, particularly, those who hold management positions). In order to ensure adequate protection of employees, the dismissal without cause should be conditioned by the grant of longer periods of notice, that are superior to those in the common law, determined according to seniority of employees at that employer, and to the payment of some monetary compensation, also established depending on the seniority at that employer, following that these measures be strengthened by the sanction of nullity applied to the dismissal that does not comply with these conditions.
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The study raises for discussion the meaning of the phrase „independence of justice”, as well as „independence of the judicial authority” and of its constitutive elements, in relation to the „holder of the national sovereignty” and „his supreme representative”. Likewise, it is noted that the approaches in globo concerning the „independence of justice”, whether expressed in public or within the content of some normative acts, can sometimes intensify the process of „fetishism” of the „judicial authority”.
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Pursuant to Article 914 of the new (Romanian) Civil Code „The owner of the estate recorded in the land register may request at any time the amendment of the mentions in the land register concerning the description, the destination or its surface, according to the law.” In reference to this text, in the case-law there is a controversy, whether, in the first instance, the jurisdiction ratione materiae lies with the court of first instance or with the tribunal. After examining this issue, the author comes to the conclusion that, de lege lata, presently the jurisdiction lies with the tribunal, according to the rule included in this Article 95 point 1 of the new Civil Procedure Code. Likewise, de lege ferenda, the author proposes that such cases fall within the jurisdiction of the court of first instance, having regard to their nature and their reduced complexity.
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As a systematic mean of exposing knowledge, in a specific and accessible form, the encyclopedia played an important scientific and cultural part, much amplified given the conditions of the age of internet. The encyclopedia of law offers important particularities, linked to its own tradition, the importance of the knowledge it offers and the extraordinary dynamics of the field. The project initiative of a Romanian Encyclopedia of Law answers a historical need, as a work of accomplishment and affirmation of the Romanian culture, in the context of the European and global cultural diversity. Moreover, it stands as an endeavour imposed by the new stage of development in Romanian law. After the finalization of the great legislative reform post-1989, by the adoption and entry into force of the major codes: civil and civil procedure, criminal and criminal procedure, legal doctrine needs a synthesis and conceptual abstraction specific to an encyclopedia.
