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Given that the new General Data Protection Regulation has influenced most of the industrial sectors, new challenges in life science area have also been generated, particularly those regarding the effective protection of the personal data of the patients – subjects to clinical trials. The new changes focus mainly on how data and the rights of the data subjects are perceived by these persons, as well as the controllers and processors. This study aims to identify and determine the impact of this regulation on clinical trials and patient engagement policies, having also into consideration the derogations from the rights of data subjects for the purpose of scientific research. Also, we seek to define concepts such as sensitive data, health data, clinical trial data, the obtained results following the clinical trials, data processing, as well as notions related to the parties involved – either the patients or CROs (contract research organizations) understood through the meaning of the terms of natural person or controller, processor, recipient respectively. We want to clarify to what extent the clinical trials can be included in the scientific research that the Regulation refers to and whether its application in this area makes a distinction between the goals of the research: either the one of profit-making or the one of developing the medical knowledge. -
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. -
International treaties on human rights are, in relation to the common law, the most important human rights source of international law. In terms of geography, the international treaties under the cited matter are divided into treaties with universal vocation (UN system) and regional international treaties (European regional level, Inter-American, African and so on). In this study, the author refers to the specificity of the conventional sources within the Inter-American and African system, the Arab and Islamic world and within the CIS area. -
The Lisbon Treaty is designed to replace the Treaty establishing a Constitution for Europe. Its adoption brings about an improvement of the institutional law system of the European Union, due to the coming into force of the Charter of the Fundamental Rights of the European Union. It was proclaimed by the European institutions (the European Commission, the European Parliament and the Council of the European Union) on the occasion of the European Council of Nice on 7 December 2000 and its wording states for the first time in a single document, on the whole, the social, economic, civil and political rights that all the European citizens can benefit of. -
The aim of the present paper is to cover the main aspects regarding the legal treatment of classified information in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the access to classified information in the course of the criminal proceedings, with a special focus on the lawyer’s access to such information, as well as by providing an overview of the substantial criminal provisions protecting classified information. With respect to the procedural standards, the underlying idea emerging from the detailed analysis of the legislation in force is that currently there is an unjustified difference in treatment within the criminal proceedings regarding lawyers, on the one hand, and magistrates, on the other hand, the former category being prevented from benefiting from an unhindered access to classified information, which directly affects the rights of the defence. As far as the criminal protection of classified information is concerned, the Romanian criminal code incriminates a variety of acts that imply the illicit disclosure of classified information, pertaining to either state or professional secrecy, and are prejudicial to the national security, the state defence as well as some public or private entities, as the case may be. -
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Thanks to his social status, his activity, the social relationships he develops, interest in technology, etc., the child has acquired a certain legitimacy to be able to make recommendations on the purchase of a good or service. Of course, professionals are aware of the reverse socialization that takes place within family relationships and have begun to develop products that are intended for children or that, through children, can reach the bosom of families, although those do not concern children. The purpose of this study is to prove that any child is a vulnerable consumer, although he has at his disposal countless methods of information. The child is not capable of complex cognitive functions. Being a consumer means not only acquiring skills and technical routines, but also an awareness of real needs and values, something that can only happen with the development of each individual. The vulnerability that is specific to the child is a matter of social status of the skills and resources that protect each individual and carry extrinsic and partially intrinsic aspects. By analysing the European and national legal frameworks on consumer protection, I have tried to identify a clear definition of the vulnerable consumer, as well as what the concept of „vulnerable consumer” is based on. -
The intangible cultural heritage is a crucial factor in shaping the personality and identity of a human being. At the beginning of the 21st Century, faced with the deepening globalization, commercialization, consumerism, technological progress and urbanization, it is necessary to take, without unjustified delays and considering future circumstances, actions for the protection of the intangible cultural heritage. This study presents the genesis, the legal regulations and mechanisms that were developed under the aegis of the United Nations Educational, Scientific and Cultural Organization. The measures taken by UNESCO1 and by the individual states to reach the set targets should follow the spirit of tolerance, empathy, cultural plurality and respect for human rights. -
In this article there have been examined comparatively the provisions of the law in force and those of the previous law, by emphasizing the elements of similarity and of distinction between the two regulations. Likewise, the author has critically examined the provisions of Article 336 (1) of the Criminal Code, also making in this regard de lege ferenda proposals designed to determine the amendment of the current provisions. The de lege ferenda proposal aims to the legislator's abandonment of the provision according to which the moment of consummation of the offence is identified with moment of taking the biological samples, motivated by the fundamental difference existing between the two moments, especially with regard to the criminal liability. The paper can be useful to the legislator, in the light of the suggested amendments, to the practitioners, as well as to all those who show concerns in this field. -
The archaeological sites – material forms of our past – are a finite and non-renewable resource of knowledge of our history, in a constant state of vulnerability to external factors that can lead to their irretrievable loss. Among these factors, the most destructive one that can be distinguished is the phenomenon of archaeological poaching as a source of supply to the national and international art markets. The illegal trafficking of cultural goods, often also involving activities of laundering of money or even of terrorism, is a widespread phenomenon worldwide. In order to fight it, the real protection offered to archaeological sites and museums, as well as ensuring the effectiveness of the instruments of international cooperation are the most effective means for defending the national cultural heritage. -
Savantul meu coleg D. Dimitrie Alexandresco, într’un studiu asupra art. 951 și 1157 Codul civil, studiu apărut în ziarul Dreptul Nr. 25, face istoricul protecțiunei minorilor la Romani, istoric care este de sigur incomplet, dacă nu și inexact în câte-va puncte esențiale. Pentru ca să urmez întrucât-va pe eminentul meu coleg, nu mă voi ocupa cu protecțiunea copilului nenăscut, care de la o epocă determinată a început a fi protegiat, lucru care a dat naștere maximei cunoscute: „infans conceptus pro nato habetur quoties de ejus commodis agitur”, maximă cu atâtea aplicațiuni în dreptul modern, ci voi trata numai despre mijloacele de protecțiune organisate de dreptul roman pentru minor, luându-l de la naștere și până la vârsta de 25 ani. -
The principle of the fairness of the administration of evidence represents the rule that prohibits the use of any strategy or maneuver which has as its object the administration of a piece of evidence in bad faith or which has the effect of provoking an offence to obtain a piece of evidence, if by these means the dignity of the person, his or her rights to a fair trial or privacy or professional secrecy are infringed. The object of the present study is only the examination of the last of the aspects of the principle of loyalty, as it is regulated by the Criminal Procedure Code, respectively „the entrapment to commit a crime”. We do not intend to make a detailed presentation of the jurisprudence of the European Court in this matter, but only to point out the general principles that should underlie the analysis to be carried out by the judiciary and to exemplify some solutions in judicial practice. Finally, we will try to draw attention to the delimitation between „entrapment to commit a crime” and „entrapment to evidence” and to establish exactly what is the procedural framework in which these aspects can be invoked. -
Part of EU law – both primary and especially secondary – waste problem is a complex multi-faceted one in its aspects. Since the first programs of action on the environment (EAP) – the first (1973–1977), the second (1977–1983) – to the last, the seventh such program (2013–2020) entitled A better environment for a better life, the challenge of waste is dealt with either issue on its own, or as part of wider objectives. Whatever the approach, solving subordinates to old or new principles of environmental law as formulated in the first EAP and then developed in other programs of action. These are: prevention is better than cure; EIA should be considered at an early stage of decision making; exploitation of nature by means of causing significant damage to the ecological balance should be avoided; scientific knowledge must be improved to allow for appropriate action; „polluter pays” principle, the polluter should bear the cost of prevention and environmental restoration after damage thereto; activities of a Member State shall not cause damage to the environment of other States.
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The 150th anniversary from the issue of „Dreptul” magazine, edited by Societatea Juridică (1871), the first representative publication, with a „programme” in the matter, represents the occasion to review the evolution of the juridical literature as vector of the science and culture of law in Romania, to capture its current state and to prefigure the perspectives of development. The juridical press has emerged and developed in our country as a tool for promoting knowledge of law, through the dissemination of the case law, the affirmation of the doctrine and of the dialogue of ideas. After an initial period marked by the spirit of imitation related to the massive legislative import that characterized the establishment of the foundations of the Romanian juridical modernity after 1859, the interwar juridical unification (judicial, constitutional-legislative, at the level of the regime of juridical professions and of the juridical higher education) favoured the transition to its own literature in the field and a national juridical culture with strong original and identity accents. Marked by a certain eclipse and by a perspective „planned” between 1949–1989, it experienced a strong recovery after 1990 by resuming its issue in new editions, along with Dreptul, and of the other two landmarks genre: Curierul Judiciar (founded in 1892) and Pandectele Române (since 1921) and the issue of new ones, currently facing the low tide and the unexpected challenges of the accelerated digitalization and neoliberal globalization.
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This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials. -
This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials. -
Under art. 164 to 177 of the Civil Code the legislator regulates “the protection of the judicial prohibited” and “the placing under judicial interdiction procedure” under art. 935 to 940 of the Code of Civil Procedure; these texts essentially take over the old regulation provisions and also establish some updates, including that of determining jurisdiction in the matter in favor of the court guardianship, court which also takes over the guardianship authority duties. This study aims to explore and explain the legal rules above.
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The probative force of the document under private signature derives from the signature of the party or, as the case may be, of the parties. The signature of a document guarantees in full faith, until proved otherwise, the existence of the consent of the party that has signed it with regard to its content. In case of the document under private signature the presumption of authenticity will no longer operate. The person to whom it is opposed a document under private signature is obliged either to acknowledge, or to contest the writing or the signature, because, until it is voluntarily acknowledged or verified in court, one can not know whether the signature belongs or not to the person who appears in the document as signatory and whether or not he has knowledge of the content of the document. The document under private signature, acknowledged by the opposing party or considered by the law as acknowledged, makes proof between the parties until proved otherwise, including with regard to the mentions in the document which are directly related to the legal relation between the parties. On the other hand, the mentions in the document not related to the content of the legal relation between the parties can serve only as prima facie written evidence. The attitude of the party, to whom it is opposed a document under private signature, not to protest against the use of that document or not to give an opinion in one sense or the other, is presumed to be a tacit acknowledgment. In case the writing or the signature has been contested by the party or declared unknown by its heirs or successors in rights, the court will proceed to the verification of the document according to the provisions of Articles 301–303 of the Civil Procedure Code. However, if the party claims that the document has been forged after signing, by erasures, additions or corrections in its content, or that the document contains an intellectual forgery, the party in question will be able to denounce the document as false, by means of the procedure regulated by Articles 304–308 of the Civil Procedure Code. The document not signed by the parties or by one of the parties is not valid as instrumentum probationis, but the legal operation (negotium iuris) remains valid and can be proved by other means of evidence, if the written form is not required by law ad validitatem. Even the document not valid as document under private signature is worth as prima facie written evidence, if it is opposed to the party who wrote it. The documents under private signature (signed) for which the formality „plurality of copies” or, where appropriate, the formality „good and approved” has not been accomplished is always worth as prima facie written evidence. In the relations between professionals it is recognized the probative force of a document not signed, but commonly used in the exercise of the activity of an enterprise in order to establish a legal act, unless the law imposes the written form in order to prove the legal act itself. The date indicated in the document under private signature has the same probative value, in the relations between the parties, with the other mentions in the document. Against third parties, the date of the document under private signature, by itself, is not evidence. Only the certain date is opposable to third parties, a date obtained by one of the methods established in Article 278 of the Civil Procedure Code or by other means provided by law. -
The study addresses the issue of the role of the judicial power within the system of separation of powers in the state, as well as its interaction with the legislative power, respectively the executive power, mainly using the method of analysis and of the case study, respectively of the jurisprudential study. Starting from the necessity, justified in a democratic state, of the existence of a system of mutual control between the authorities called to exercise the power, the authors present the creative role of the judge, called upon to apply, by interpretation, his right and principles, to a situation of fact, pursuing the respect for citizens’ rights and freedoms. Certainly the necessity of limiting the abusive or arbitrary conduct in exercising the functions of any of the three powers of the state can only be achieved when mutual control is effective and guaranteed by the legal regulations, as well as by the institutional practice, based also on the principle of loyal collaboration between institutions and public authorities. The members of the judicial power must respect high standards of ethics and professionalism, and their independence and impartiality are guarantees of respecting their role in democratic regimes based on the principle of separation of powers. The paper presents aspects referring to the interaction of the judicial power with the legislative one and the executive one respectively, by analysing the relevant case law of the Constitutional Court, which has established the parameters of this relationship, so as to guarantee the respect for the functions assigned by the Fundamental Law to each power, respectively to respect the citizens’ freedoms and the prevention of arbitrariness in the exercise of power.
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Prezentul Raport sintetizeazã activitatea Consiliului Uniunii Naţionale a Barourilor din România (în continuare U.N.B.R.) pânã la data întocmirii sale – 01 iunie 2010. Raportul nu poate şi nu are pretenţia de a evoca toate problemele rezolvate în mod curent de Consiliul U.N.B.R. şi organele profesiei subordonate acestuia (Comisia Permanentã a U.N.B.R. şi Preşedintele U.N.B.R.). Congresul avocaţilor este chemat sã decidã dacã în perioada analizatã Consiliul U.N.B.R şi-a îndeplinit obligaţiile şi şi-a exercitat drepturile prevãzute de Legea nr. 51/ 1995 pentru organizarea şi exercitarea profesiei de avocat (în continuare, Legea) şi Statutul profesiei de avocat, în conformitate cu hotãrârile Congresului precedent. -
Every 3 months, calculated from the beginning of the liquidation, the judicial liquidator must submit to the creditors’ committee a report on the funds obtained from liquidation and from the collection of claims, as well as a distribution plan between the creditors, if necessary. The report and the plan shall be recorded at the registry of the tribunal and shall be published in the Bulletin of Insolvency Procedures. The report shall also provide the payment of his fee and of the other expenses provided in Article 159 (1) point 1 or of Article 161 point 1 of the Law No 85/2014, as the case may be. The report on the funds obtained from liquidation and from the collection of claims shall include, at least, the following: the balance in the liquidation account after the last distribution; the collections made by the judicial liquidator from the sale of each asset and from the recovery of the claims; the amount of the interests or of other incomes benefiting to the debtors’ fortune, as a result of keeping the undistributed amounts in bank accounts or by administering the assets existing in the debtor’s fortune; the total of the cash amounts existing in the liquidation account.
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The EU is a union of states and citizens. The legal nature of this Union is disputable. However, most of the scholars admit that it works on federal bases; in the Brussels language called „the communitarian method”. If the EU is a federation, it is a sui generis federation of sovereign states. Those states have transferred to the European transnational institutions, they have established by their joint will, the power to exercise on their behalf, to their benefit and in their common interests some of their national competences. By doing this the respective states did not give up their sovereignty, but simply decided to exercise parts of it in common, for the sake of their common security. Likewise, they did not abrogate their Constitutions, but it was precisely because those Constitutions allowed them to enter such international agreements that they have signed the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). That explains why the above-mentioned founding legal instruments of the EU were adopted and later modified by and within intergovernmental conferences, as well as why they had to be ratified by all national parliaments of the signatory states. Those treaties include the principle of „attribution”, which means that the European institutions could not have, accept or enforce any power which has been not explicitly attributed to them by every and all member states. This „attribution” is achieved and could only be achieved in full respect and in complete observance of the respective national Constitutions of the member states.
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This study deals with the extremely complex problems of the legal relation of criminal enforcement law, often confused with the legal relation of substantive criminal law or even with the relation of criminal processual law. That is precisely why the author insists on the specific elements of the analyzed relation, thus creating clear delimitations between the three institutions that have separate existence, and also areas of very strong interference.
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Romania, by adhering in July 1961, to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New-York as at 10 June 1958, on that occasion formulated a reserve, in the sense that our country shall enforce the Convention „only to disputes arising from lawful contractual or non-contractual relations being deemed as commercial by the national law”. Since as at the 1st October 2011 the current Romanian Civil Code entered into force (Law no. 287/2009, as republished as at 15 July 2011), as well as Law no. 71/2011 for the enforcement of the current Civil Code, both of them having a monist character (without considering the commercial law as an autonomous discipline of law), but recognizing further the category of merchants (a component of the professionals’ category) the authoress considers that, on one hand, the above mentioned reserve shall be construed as referring exclusively to the legal relations among merchants, and, on the other hand, as opposed to what the law is, that Romania is about to waive the concerned reserve at issue in the future. -
In the study above, the author examines the issue of redemption of own shares by a company admitted for trading on a regulated market, under the conditions of art. 1031 of Law no. 31/1990 regarding trading companies (republished on November 17, 2004), of EC Regulation 2273/2003 and of Directive 71/91/EEC. For this purpose, the author reviews: how the redemption of own shares is performed in practice, the juridical effects of such redemption, the funds employed to make the redemption; various specific cases in the matter.
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The study is devoted to the institution of civil tort liability, namely the matter of reparable prejudices, with a special look at the special assumption of liability consisting in the damage to the right to one’s own image, as a right of the human personality. The analysis has as its starting point the presentation of a case-law solution, whereby the court has awarded civil damages for non-property prejudices caused by committing an illegal act, consisting in the launching, without the consent of the complainant, on a social networking site of wide circulation – Facebook, of a blog for public debates about his professional work, in which he has used his image, without obtaining prior consent. As objectives of our research, we have established the conditions for the reparable prejudices under the tort liability, followed by an analysis of the special liability assumption by bringing prejudice to the right to one’s own image, as right of personality. In the realization of the study, through the results obtained, we have found that this way of approaching the topic by presenting a case study followed by a doctrinal analysis can be a useful tool for theoreticians, but also for the practitioners of law, in achieving the topicality and complexity of the problems, from the perspective of the legal discourse of the controversial issues, as well as of the didactic one. -
Executarea pedepsei închisorii se face în locuri de detenție special amenajate, pentru a se asigura atât rolul sancționator al pedepsei, cât mai ales, cel educativ, apt să conducă la reeducarea celor condamnați. Din nefericire, condițiile degradante de detenție din multe penitenciare românești au fost ignorate de puterile legiuitoare și executivă din România. Deși este o problemă de zeci de ani, mare parte a societății civile a rămas în pasivitate sub acest aspect, fapt ce, poate, oglindește nepăsarea multor români față de modul de executare a pedepselor penale, privative de libertate.
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The study proposes the analysis of a jurisprudential solution from the perspective of the regulations on the tort civil liability for the prejudices caused by things in order to signal the recognition of the reparable nature of some new categories of prejudices. The arguments exposed are substantiated on the regulation of the Civil Code, but also on the opinions expressed in the classical and contemporary doctrine, supporting the need to ensure the full reparation of all prejudices caused to the victim.
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The Court of Justice unitarily interprets the law of the European Union by way of the preliminary reference procedure. Social networks make available to every person possibilities of individual communication or in communities. The meeting between the Court of Justice and the social networks is not new, but now the European Court has consolidated the interpretation of the notion of controller within the regulations on personal data protection. The administrator of a page hosted by a social network is a controller within the meaning of European legislation. The study attempts to correlate the main attributes of the controller with the functions of the administrator of a page hosted by a social network and to deepen the liability of this administrator.
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The following study critically analyzes the civil liability of the civil servants. It is estimated that it is about a contractual liability, however different from the patrimonial liability and from the material liability, regulated in the case of employees, respectively of the military and of other categories of personnel. The cases of civil liability of the civil servants are presented, as well as the conditions of this form of liability. Special attention is paid to the procedure of reparation of damages (imputation order or disposition and the payment commitment), including with regard to the former civil servants. Key words: payment commitment; authority; public institution; imputation decision/disposition/order; illicit deed; civil servant; obligation of restitution; injury; civil liability; material liability; patrimonial liability; guilt.
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The civil liability of judges and prosecutors for damages caused by torts related to their professional duties is a subject of actuality much debated by legal professionals, the media and the civil society as a whole. Problems such as judicial errors, arrest followed by exculpatory decisions, controls and other forms of discriminatory police abuse performed sometimes at the request of prosecutors are just some of the examples observed by many contemporary societies as dangers for the human rights and liberties. The constitutions, laws and case law provide for answers to the questions in connection with the tort liability of judges and prosecutors. Latest, it becomes visible worldwide a certain way of thinking which advocates for more restrictive rules regarding the subject. This phenomenon is noticeable not only in Romania but also in other countries, such as the United States and France. The paper proposes a synthesis of the constitutional, legal framework and case law in the United States of America, with a special focus on the Supreme Court of Justice cases regarding the civil liability of judges and prosecutors. Since the notions of absolute immunity and qualified immunity in this context are quite unknown to the Romanian legal readers, this paper should add some value to their knowledge of the way of thinking the relation between independence versus accountability of the judiciary specific to the legal traditions of the U.S. From the perspective of the U.S. case law, the paper presents some of the most relevant cases of the Supreme Court of Justice such as: Stump v. Sparkman, Griffith v. Slinkard, Yaselli v. Goff, Imbler v. Pachtman, Burns v. Reed and Buckley v. Fitzsimmons. Although quite old some of them, the majority of the conclusions resulted from this case law are still valid today, with nuances, mainly in the area of the qualified immunity for prosecutors.
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Typical as they could be for the continental legal system and bearing common landmarks recommended by the Council of Europe and European Union, France, Italy and Spain are the three examples of states best suited to illustrate the European vision on the civil liability of judges and prosecutors for the damages caused by the exercise of their legal powers in deciding upon acts and measures taken in the framework of litigation, including the final decision on the case. The analysis of these examples represents the continuation of a former study published in the same legal journal on the matter, but viewed through the lenses of the US Supreme Court of Justice and laws. Based on the Council of Europe Charter on the Statute for Judges and Recommendation on the judge’s independence, efficiency and responsibilities, guided by the case law of the EU Court of Justice and ECHR, the law and legal practices on civil liability of judges and prosecutors find their expression in slightly different manners in France, Italy and Spain, but all of them respect the paramount principle of the indirect liability which could be enacted only based on the state’s direct liability. There are some national differences but nevertheless they don’t represent deviations from the common European approach. The present study searches for all different and common views of the three states on the subject, emphasizing on the main principles that should guide the continental legal system’s states on that respect. -
Legal liability is a relation established by law, by legal rule, between the author of the infringement of legal rule and the state, represented by the officials of the authority, which may be the courts, public servants or other officials of the public power. The contents of this relation is complex, being composed essentially of the right of the state, as a representative of society, to apply the sanctions provided by the legal rules to the persons which are in breach of the legal provisions and the obligation of those persons to be subject to legal penalties, in order to restore the legal order.
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The study presents the new provisions of the Civil Code on tort liability for the act of the animal and the act of the thing by establishing the scopes of these liability hypotheses. Along with the traditional rules established in the former Civil Code, as innovative elements, the legal guard was defined, in Article 1377, and provisions concerning the liability in case of collision between motor vehicles and the liability for things that fall down or are thrown out of a dwelling place owned with any title were introduced. -
The author believes that tort liability for the “ruin of building” (regulated in a similar manner in the current Romanian Civil Code – art. 1002 –, and in the new Romanian Civil Code – art. 1378 –, the latter not yet in force) was erroneously regulated as a special form of the liability “for things”, when, in reality, the liability for the “ruin of building” is simply a case of liability “for things” (art. 1000 paragraph 1 of the current Civil Code; art. 1376 of the new Civil Code). Also, the author severely criticizes the legal regulation in both Codes due to the fact that it limits the tort liability of the owner of the ruined building exclusively to the situations in which the ruin of the building is due to the lack of maintenance or to any construction fault. -
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.
