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This doctoral research investigates the case law development of the principle of loyalty within the framework of the invisible constitution theory. Uncodified counterpart of written constitutional rules, the invisible constitution belongs to a broader understanding of the concept, specifically the constitution in its material sense. Contemporary examples are found within the British constitutional order (e.g. constitutional conventions and case law), the French bloc de constitutionnalité (i.e. complementary unwritten rules) and the case law of the Hungarian Constitutional Court (i.e. the Sólyom model). Assuming a national invisible constitution exists, the paper aims to demonstrate that the principle of loyal cooperation belongs to such an invisible dimension of the Romanian constitutional order. -
The formation of public law in the Romanian Principalities bears, on the one hand, the imprint of the political will of the states with strong influence in this part of Europe in the first half of the 19th century, and, on the other hand, it reflects the spirit of Western constitutional thought and practice, much modernized after the French Revolution of 1789. Concerned with the constitutional and administrative modernization of the two Principalities were mainly Russia, France, England and Austria, each of these great European powers pursuing, in fact, their own objectives, of political and economic nature. Instead, Turkey did not support at all the modernization of Wallachia and Moldova, being interested in maintaining the Phanariot regime. At the confluence of the contradictory interests of these powers, the Principalities did not have an active, decisive role in their own constitutional and administrative modernization. Nevertheless, the changes and transformations produced in the Principalities at the initiative and with the determination of the mentioned states, were generated by the clauses of some international documents (the Treaty of Adrianople of 1829, the Peace Treaty between Russia and Turkey of 1856 and the Paris Convention of 1858). To these it is added the Developing Statute of the Paris Convention, imposed by the will of Prince Alexandru Ioan Cuza
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Simplification and debureaucratization, in many cases, indeed, lead to a positive result. However, the complexity and apparent bureaucratization of some institutions and procedures, in many cases, have a well-defined, useful, even necessary role. The elimination of functional and strict requirements may drive the expected rationalization but an undesirable adverse effect: dysfunctions and legal uncertainty. These ideas can be best illustrated by the recent amendment of the Law No 31/1990 on companies, through Law No 23/2020 for the simplification and debureaucratization of the transfer of shares („social parts”) and the payment of the share capital. Unfortunately, in recent years, the limited liability company has become a subject of experimentation for different improvement attempts, without noticing that companies’ legal regime is an organic whole. Most of the time, reforms are well-intentioned but distorted by enduring normative realities. They also distort the existing law: as is currently the case with share capital and shares transfer.
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As it is well known, the insolvency procedure involves the collaboration of the insolvent company, of the syndic judge, of the creditors and, of course, of the judicial administrator. Once the state of insolvency is established by the court, one of the first steps is to assess the debts of the insolvent company, and this action can be done only by communicating the state of insolvency to the creditors, in order to allow them to record their claims to the company. At this stage, an important role is that of the judicial administrator, who must work with all those involved in the procedure in order to determine the amounts owed to the creditors. The judicial administrator is not limited to receiving the creditors’ requests. He must analyze each claim, must establish the amount claimed and ascertain whether that claim is based on a valid title
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Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio” attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request.
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We have taken into account that there have been several discussions with regard to medical legal liability, related to such a domain of maximum sensitivity, which is why the regulation of this form of liability is fully justified. Thus, medicine, being a social activity, cannot be deprived of a legal regulation that would protect the interests and rights of both the medical staff and, especially, of the patients. The liability based on the medical error cannot be one of an objective type, because, in principle, the doctor’s obligation is one of diligence and in rare cases it is one of result; depending on this aspect, at the time when the doctor guarantees a certain result, expressly expressed by him, his mistake will have an objective foundation. There have been doctrinal controversies in order to correctly qualify the type of liability that can be engaged depending on several factors, liability that may be civil tort, contractual, civil special or professional one, as appropriate. We have considered necessary to emphasize that the foundation of liability is represented by the relations established between the patient and the doctor, between the patient and the units providing medical services, units that can be in the public medical service or circumscribed to some private forms of practising medicine.
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Electromagnetic pollution is increasingly becoming a public health and environmental problem at the same time with the introduction of 5G technology, which involves for solving the intervention of law and the exercise of public and civic democratic control. The exposure of the people and of the environment to electromagnetic waves, which has become massive, no longer pertains exclusively to labour safety, but becomes a challenge for public health. The combined application of the principles of prevention and precaution requires an adequate regulation of the activities generating electromagnetic fields, regarding the allocation of frequencies and the authorization of the related installations, as well as the establishment of the protection measures against proven and possible negative effects on people (consumers, employees, vulnerable people). The obligation to assess in advance the impact on health and environment, the democratic control, the transparency of the decision-making process and the compliance with the requirements of the rule of law are fundamental landmarks of the relevant legal regime. The intervention of the law implies, first of all, to ensure the prevalence of the public interest, the protection of the fundamental rights and freedoms of the individual, coming after the right to life, to health and the freedom of choice and the rejection of arbitrariness and immunity claimed by the operators.
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Potrivit art. 598 alin. (1) lit. c) C.pr.pen., contestația împotriva executării hotărârii penale se poate face când se ivește vreo nelămurire cu privire la hotărârea care se execută sau vreo împiedicare la executare
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Donația poate privi nu doar un bun determinat în materialitatea sa, ci și o universalitate de bunuri prezente și viitoare, precum și o fracție determinată ori determinabilă din patrimoniul donatorului. Prin urmare, contractul de donație era perfect valabil între părți, producând efecte juridice erga omnes (prin formalitățile de publicitate realizate în acord cu art. 58 din Legea nr. 7/1996, în forma inițială, câtă vreme pentru terenul pentru care se emisese titlul de proprietate conform Legii nr. 18/1991 nu exista carte funciară deschisă, ci doar mențiune în registrul de transcripțiuni). Faptul că donatarul a dispus asupra cotei sale determinate din terenul care urma a fi supus procedurii de ieșire din indiviziune nu invalidează liberalitatea, fiind în mod evident că odată cu partajul – convențional sau judiciar – cota parte dobândea doar atributele de materializare fizică (existența ei fiind însă certă de la momentul nașterii stării de indiviziune).
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The article deals with the issue of inappropriate conditions of detention in the Romanian penitentiary system and the available internal means of appeal. The objectives of the article consist in determining the content of the notion of conditions of detention, the deficiencies of which led to the violation of Article 3 of the ECHR/Convention, the analysis of the applicable internal remedies and of the relation between these from the perspective of obtaining monetary compensation for inappropriate conditions of detention, and the establishing of the effects of the state of necessity on the State’s obligation to ensure appropriate conditions of detention
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This article underpins the normative framework given to judicial bodies competent to make investigations into marine navigation in Romania, according to the provisions of the Romanian criminal law, followed by a brief history of the establishing and dissolving of the courts in Romania regarding maritime and river matters, and examination of the normative framework given to the competencies of the Court of justice on investigations into marine navigation, and finally this article is drawing some conclusions and implications related to lex ferenda.
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The present study analyses from the point of view of the jurisprudence of the European Court of Human Rights (ECHR) a topic of current interest in the Romanian law, namely the topic of the legality of evidence as a link between the rule of law and the right to a fair trial. By corroborating general principles and individual solutions emerges a differentiation mechanism used by the ECHR in order to distinguish between possible breaches of the domestic law in respect to their nature and degree. While in principle the way the law is interpreted and the breach of law allegedly committed in obtaining and presenting the evidence are by themselves irrelevant from the perspective of the fair trial, the arbitrary or manifestly unreasonable interpretation of the law, which violates the principles of the rule of law, is relevant from that perspective. A serious breach of law can mean the inadmissibility of the evidence obtained thereby. The ECHR doesn’t lay down general rules regarding the assessment of the arbitrary or manifestly unreasonable character of the interpretation of the law and, respectively, the seriousness of its breach, but from the case-law emerges a series of relevant criteria, such as the manifest error of assessment, the breach of law committed in bad faith or systematically, inevitable discovery of evidence and the purpose of law.
