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Prin Decizia nr. 269/2017 a Înaltei Curți de Casație și Justiție (completul de 5 judecători)1 a fost respins recursul împotriva hotărârii Consiliului Superior al Magistraturii referitoare la sancționarea disciplinară a unui judecător, constând în diminuarea indemnizației de încadrare lunară pentru abaterea prevăzută de art. 99 lit. l) din Legea nr. 303/2004 privind statutul judecătorilor și procurorilor2. Persoana sancționată a criticat hotărârea amintită, printre altele, pentru că instanța disciplinară a făcut o aplicare greșită a dispozițiilor art. 46 alin. (7) din Legea nr. 317/2004 privind Consiliul Superior al Magistraturii3, cu privire la termenul de prescripție a aplicării sancțiunilor disciplinare, precum și a dispozițiilor art. 99 lit. l) din Legea nr. 303/2004, care instituie abaterea disciplinară, constând în „imixtiunea în activitatea altui magistrat”. -
Suspicious death is one of the key legal institutions on the right to life. This study aims to present the concept of suspicious death in Romanian law, its evolution and the relationship between its legal provisions and Article 2 of the European Convention of Human Rights. Even though impossible to quantify at present moment, many of the abuses committed by agents of the communist regime, abuses which led to the death of their victims, may constitute reason enough to consider them suspicious deaths under Romanian criminal law. Article 2 ECHR, from a procedural point of view, may be interpreted as obliging the Romanian state to organize an effective investigation into the circumstances that led to the deaths of the opponents of the communist regime in Romania, if and when the circumstances in which the death occurred raise the possibility that that death to be a result of an abuse committed by an official of the Romanian state or in his or her custody.
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The article presents the results of a research conducted in six European countries mainly on the analysis of the exceptional nature of preventive arrest within these jurisdictions. In this article there are presented the main results of the research conducted in Romania, research that was based on a series of interviews with judges, prosecutors and lawyers. The main areas investigated have concerned aspects such as the analysis of the decision-making process, the situation of the foreign citizens subject to preventive measures, the manner of application of alternative measures to preventive arrest, the analysis of the current criminal processual normative framework, as well as of the impact in the current practice of the European regulations, etc. The conclusions of the study are in the sense that in Romania there have been registered also some aspects representing progress in the sense of protection of the fundamental human rights in the cases where it is raised the question of taking some preventive measures in the criminal cases – such as the fact that the tendency, at least in terms of using the preventive arrest, is a decreasing one. However, major deficiencies have also been found, related to the organization of the initial and continuing training for magistrates, in the sense that they have been found to be unaware of judicial instruments important for their activity. It is precisely about instruments that are capable of improving the situation of foreign persons in relation to the state where it is raised the judicial matter – respectively the European Surveillance Order.
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Article 913 of the Civil Procedure Code regulates two situations in which the court executor will establish the existence of an impediment to enforcement: when the minor himself categorically refuses to leave the debtor, respectively when the minor has aversion to the creditor. Faced with either of the two hypotheses, the court executor will not put pressure on the minor (he will not use force, he will not abuse him), but he will draw up an official report, which he will communicate to the parties and to the representative of the General Directorate of Social Assistance and Child Protection, which will notify the competent court (the guardianship and family court) to order a psychological counselling programme appropriate to the child’s age as a protection measure necessary to avoid the child’s subsequent refusal on enforcement. The child who has reached the age of 10 will be mandatorily heard. According to the law, the psychological counselling programme can not exceed 3 months. After an initial psychological assessment of the child, the psychologist appointed by the court will determine the duration and content of the psychological counselling programme. Upon the completion of the psychological counselling programme ordered by the guardianship court, the psychologist draws up a report which he communicates to the court, to the court executor and to the General Directorate of Social Assistance and Child Protection. Whereas the starting point for the new regulation was represented by the presumption that the minor’s going through the counselling programme will lead to the change of attitude towards the creditor of the obligation, after receiving the report drawn up by the psychologist, the court executor will resume the procedure of enforcement, under the terms of Article 911 of the Civil Procedure Code, therefore in the presence of a representative of the General Directorate of Social Assistance and Child Protection and, if the latter considers it necessary, of a psychologist, and he may benefit, when necessary, from the assistance of the public force agents.
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Among the assets that are the object to public property and are likely to be subject to concession and lease of particular importance are the permanent lawns. A special normative act was dedicated to them, namely the Government Emergency Ordinance No 34/2013, which regulates inclusively the concession and lease of lawns which are in the public or private property of communes, towns and municipalities. As regards the concession and lease of the lawns which are in the public property of the above-mentioned administrative-territorial units, the legislator understood to derogate in some respects from the common law. Thus, the local public authorities are obliged to approve until 1 March every year the concession or lease for a period of 7 years to 10 years, without having the opportunity to assess the appropriateness of these juridical operations, the place of the opportunity study is taken by the pastoral arrangement, the award procedure is triggered at the written request of the animal breeders registered in the National Register of exploitations, there is no possibility of changing the destination of the concessioned or leased assets, even if there would be a consent of the owners, the lease contract for the lawns is non-transmissible even in the hypotheses regulated by Article 1846 of the Civil Code and others. The derogatory legal regime for concessioning of lawns which are in the public property is justified by the importance the legislator gives to the capitalization of these assets. Thus, in the statement of reasons of the cited normative act it is shown that animal breeding is an activity of national interest and the permanent lawns owned by the administrative-territorial units is for many breeders the only source of providing food for these. At the same time, capitalizing these assets is the premise of granting subsidies per area. These subsidies being granted from European funds the importance of the concession of those assets is undeniable. This explains why the administrative-territorial units to which a request for concession has been made do not have the possibility to assess the appropriateness of such a juridical operation, by law being imposed on them an obligation to grant permanent lawns. Correlatively, the animal breeders, natural persons or legal persons, who make in due time requests for concession acquire the right to participate in the award procedure, right which can be defended by resorting to the action in administrative disputes.
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In this study the author points out that, although in Romania we can not talk about a real regime of liability for the inconveniences of neighbourhood, but rather about an identity between this form of liability and the one for the abuse of law, however the social, economic, cultural realities, etc. impose such regulation. From a legal point of view, there is no exact definition of this notion, reference being often made in the legal doctrine to the sociological studies that have examined neighbourhood relations or to geographic studies, in which it is contained the essence of this notion from a spatial point of view. The author points out that neighbourhood can be defined as a state of facts that captures the co-existence of some persons, of some assets, whether movable or immovable, configuring those spaces of conflict and discussing proximities and distances. The Civil Code establishes precise rules on environmental protection and good neighbourliness, considered to be legal limits to private property right, thus, according to the provisions of Article 603 of the Civil Code: „The property right imposes the compliance with the duties concerning the environmental protection and the ensuring of good neighbourliness, as well as the compliance with the other duties which, according to law or custom, belong to the owner.” The new regulation nuances certain aspects which, in practice, raise many problems; the following are examples: the use of waters, the roof droplet, the distance and the intermediate works for certain constructions, works and plantations, the view of the neighbour’s property, the right of passage, and finally the judicial limits are regulated. These judicial limits determine expressis verbis the consequences of exceeding the normal boundaries of the neighbourhood, more precisely, if the owner causes, by exercising his right, greater inconveniences than the normal one in the neighbourhood relations, the court may, on grounds of equity, compel him to pay compensation for the benefit of the injured person, and to restore the previous situation whenever possible.
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The study analyzes the essential regulations in the matter of labour relations occurred after the historic act of the Great Union of 1918. There are presented the correlations between the constitutional regulations and those included in the laws in the matter, respectively in the Labour Codes. It is reached the conclusion that the labour law is different from one social order to another, but, at the same time, there are also constant elements of the labour law. In the last century the labour law doctrine, a branch of law which emerged after 1950 in the years of socialism, had an evolution, in the mirror, but the market economy continues to exist as well. The founders of the science of the labour law were Șerban Beligrădeanu, Virgil I. Cîmpianu, Sanda Ghimpu and Leonid Miller.
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In this article the author presents the journalistic portrait of a prominent representative of the Transylvanian intellectuals’ elite – Camil Velican, whose biography belongs to the model of Transylvanian Romanian intellectual from the turn of the 19th century to the 20th century. Following his family’s tradition, Camil Velican opted for legal studies, heading at first for the Hungarian capital, where he attended, at the Royal Hungarian University, the classes of the Faculty of Law and Political Sciences (1897–1900). The model of the best Romanian students in Budapest attracted him to the Academic Society „Petru Maior”, where the talents of the national literature were formed. He continued his studies starting from 1900 at the „Ferenc József” University in Cluj, where he obtained his Ph.D. in Law in 1902, after which he dedicated himself to the profession of lawyer. Camil Velican was acknowledged as a prominent representative of the Romanian lawyer profession, a profession he practiced at the Bar of Alba, whose member he has been since 1903. With a rich political activity, he was the first Romanian Mayor of Alba Iulia after the Union of Transylvania with Romania on 1 December 1918. He had a successful career, both in administration and in the legal field, and he contributed, through his knowledge, to the economic and cultural development of the community to which he was fully committed. It must be noted that Alba Iulia was the first city where, on 20 November 1918, it was installed a Romanian administration, in which Camil Velican served as mayor. The activity in the role of mayor was a special one and contributed to the development of the city, which had become a very important one for the whole country, given the historical event which took place here. On 12 June 1937 it was prematurely interrupted the thread of a life during which he could have continued a prodigious activity in the most diverse areas of public life: politics, administration, economy, culture. Subsequently, under the communist regime, the name and activity of Camil Velican were intentionally forgotten, as well as of other achievers of the Great Union. Moreover, his family has been subject to some political persecution, specific to those regrettable old times. Even the change of paradigm in the Romanian society after 1989 did not change the old state of facts, the memory of the one who was Camil Velican being still ignored. Moreover, the house of the Velican family, which was one of the main places established for the reception of delegates and for assembly of the Transylvanian leaders in order to organize the day of 1 December 1918, continues to be nowadays in an unjustified and unjust state of decay.
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Take Ionescu was one of Romania’s most remarkable politicians at the end of the nineteenth century and the beginning of the next one, especially before and during the First World War. He was active in politics over 30 years, especially within Conservative Party, whose leader wanted to become, but without success, the competition being intense along with great figures of the Romanian politics of those times: Petre Carp, Alexandru Marghiloman, Nicolae Filipescu, George Gr. Cantacuzino and others. He was one of the brightest orator in the Romanian Parliament, being known and feared by the close logic of his interventions and his great popularity, which attracted close to him many and valuable persons, among them: Constantin Dissescu, Nicolae Titulescu, the historian Xenopol, Dr. C. Istrati, etc. Among his qualities were seriousness and competence, approaches on multiple plans, which was why he was minister in seven governments and, towards the end of his career, was for the short time Prime Minister of the Government. He formed a dissident Conservative Party, which played an important role in the first decades of the 20th century, participating in the exercise of power with other political parties. Take Ionescu was one of the most conscious fighters for the cause of the Great Union of all the Romanians, tirelessly militating for participation in the World War I, along with the Entente countries, which they supported. He was intended to play an important role at the Peace Conference in Paris, but vanities and politicking games made to be absent from this event, where his contribution would have been particularly useful. In the end, as Foreign Minister in the Government of General Averescu, Take Ionescu was the architect of the Balkan Pact, which his disciple Nicolae Titulescu put into practice.
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In this study, based on solid historical and legal documentation, the author argues that the completion of the Romanian unitary national state in 1918 was achieved during a long process of unification: first, the Romanians from the two main countries, Muntenia and Moldova, were united in 1859 in a national state, and then, those from other Romanian historical provinces, which were illegally encroached in the borders of neighbour empires, acted with perseverance for the accomplishment of their national and state unity. The study is divided into four distinct parts. In the first part, the author presents, based on documents, testimonies and memoirs, the idea of Romanian national and state unity as an essential coordinate of the history of the Romanian people. The acts of unification of the Romanian historical provinces with the Romanian Kingdom have legal base on the principle of nationalities and their right to free determination, rights recognized by the victorious powers of the First World War as a basis for solving the territorial aspects generated by the dismantling of the Austro-Hungarian Monarchy and the Tsarist Empire. The acts of union, carried out by popular will expressed in large representative national assemblies, were ratified by acts of national sovereignty by the Romanian State and recognized as such by the 1919–1920 Peace Conference in Paris. The second part emphasizes on the constitutive character of the acts of union with Romania, voted by the constituent national assemblies of Bessarabia, Bukovina and Transylvania during 1918. The article contains documentary data and information about the national liberation movement of Romanians from the three provinces, Bessarabia, Bukovina and Transylvania, and the actions taken for their unification with the Kingdom of Romania at the end of the First World War. In each of the three Romanian historical provinces, various assemblies in which the participants declare their determination for union were formed. The Moldavian Soldiers’ Congress, attended by 800 delegates, represented a large representative body of all social strata and ethnic groups in Bessarabia. The Congress delegates voted for the political and territorial autonomy of Bessarabia. The Congress also decided to establish the council of the country, a parliamentary body made up of representatives of all the nationalities existing on the territory of Bessarabia. On 14/27 March 1918, the council of the country adopted a resolution in which was proclaimed solemnly the eternal union of Bessarabia „with the mother Romania”.
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Un eveniment major al istoriei unui popor și aniversarea sa, precum Centenarul Marii Uniri (desăvârșirea procesului de constituire a statului național unitar), reprezintă pentru știința națională ocazia, după caz, deopotrivă de evocare și evaluare peste timp a semnificațiilor aferente din perspectivă proprie și, respectiv, de privire asupra sine însuși, surprinderea evoluțiilor și progreselor înregistrate în dezvoltarea proprie, a provocărilor prezentului și a posibilităților viitorului. Din acest punct de vedere știința dreptului are o implicare specială. Într-adevăr, prin natura și consecințele sale, ceea ce s-a întâmplat și realizat acum o sută de ani reprezintă, prin excelență, un proiect politico-juridic și poartă o puternică încărcătură prospectivă. Cercetarea dimensiunii juridice indispensabile și prioritare a procesului de constituire, desfășurare, desăvârșire și consolidare a statului unitar român, a permanențelor și manifestărilor și urmărilor sale de azi și de mâine a fost și rămâne o prioritate pentru știința juridică românească.
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Instanța de control judiciar a decis că sesizarea formulată de judecătorul delegat cu executarea, întemeiată pe dispozițiile art. 583–585 C.pr.pen., este admisibilă și, în consecință, se va proceda mai întâi la anularea suspendării sub supraveghere a executării pedepselor aplicate pentru fapte aflate în concurs și, în continuare, în mod logico-juridic, se va proceda la contopirea acestor pedepse (cu notă aprobativă). -
The amendment of the procedural rules concerning the access to justice of the European nationals, by the entry into force of the Treaty of Lisbon (1 December 2009), has required a rapid and effective reaction of the Court of Justice of the European Union; from this perspective, the new configuration of the criteria of admissibility of the actions brought by the so-called unprivileged applicants – natural or legal persons of private law – needed a reassessment of the aspects of material law (regarding the European acts that can be challenged) and, at the same time, of processual law, especially regarding the temporal application of the procedural rules. Despite the relatively short time interval, the Court in Luxembourg captured, in its recent case law, the much more flexible character of the rules of admissibility of the action for annulment, as provided in Article 263 paragraph 4 of the Treaty on the Functioning of the European Union.
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The Government Decision No 196/2016 has approved the preliminary thesis of the draft Administrative Code. The Government’s intention to give an incentive to the adoption of the Administrative Code, although it is salutary, is not the first. In recent years, several other proposals circulated in Romania for the adoption of an Administrative Code, which however have not been successful, so that, more than 25 years after the change of the political regime in our country, the practitioners, as well as the theorists of the administrative law are confronted with an unsystematized legislation, lacking coherence here and there and generating very different jurisprudential solutions, as well as administrative practice solutions. Within this study, the author intends to discuss some specific issues raised by these theses of the draft Administrative Code, namely: the unity and the ideological and, implicitly, terminological coherence in the administrative law; the organisation of the central public administration, including of its relations with its decentralized structures; the status of the civil servants, as well as the status applicable to the contractual staff of the public administration and the organization, functioning and disputed claims of the public services.
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This article presents one of the issues of administrative law, namely its codification, by using the comparative study and the diagnosis analysis. Based on the inventory of the essential elements of the preliminary theses the conditions of the subsequent evolution of the Administrative Code in Romania are identified. The study emphasises the necessity to correct the existing normative framework and the thorough analysis of the social necessities. At the same time, the article draws attention to the necessity to adopt the Administrative Procedure Code with major role in the simplification and stability of the legal relations of the public administration with the other social protagonists. The diversity of meanings on the administrative codification from other states reflects the place and role of the Administrative Code in the Legislative Repertoire, but also its corroboration with the sectoral codes. The article points out, by recommendations, the normative requirements regarding the proper functioning of the public administration and draws attention to some measures that can be implemented within the limits of the current legal framework.
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Starting from the contents of the preliminary theses which seem to announce the imminent entry into force of a new Administrative Code, this study proposes an analysis on a double level: on the one hand, by establishing some correct relations both with the future Administrative Procedure Code and with other hypothetical future codes (the Urbanism Code, the Domain Code, the Contraventional Code, etc.), the matter to be regulated by this new Code should be decided: from a minimalist vision (the central and local public administration plus, possibly, the public function and civil servant) to a maximum one (additionally, the same Code is also going to cover the matter of public services, of goods belonging to the administration, of administrative liability respectively), for reasons of pure opportuneness it is for the legislator to delimit this Code from others which he envisages in the more or less near future. On the other hand, we have approached, at the level of legal details, some problems that, de lege lata, do not have a solution at all or have a questionable solution: the matter of cessation by right of the mandates of the mayors convicted to custodial sentences with suspension of the punishment under supervision, of the mayor’s quality of the State's representative, the daring solution of repealing the provisions of the Civil Code referring to the public property and their development in the Administrative Code, establishing a clear distinction, as far as possible, between the liability (to third parties) of the administration from that of its authorized person (a public servant, as a rule), to mention only the most important ones.
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Prin Hotărârea Guvernului nr. 196/20161 au fost aprobate tezele preliminare ale proiectului Codului administrativ, a cărui adoptare ar permite folosirea unei terminologii unitare pentru aceleași realități juridice, instituții, principii și concepte, reducându-se astfel riscul interpretării lor diferențiate și contradictorii în practica administrativă, precum și în doctrina de specialitate. Codificarea cadrului legal din domeniul administrației publice prin intermediul unui Cod administrativ și al unui Cod de procedură administrativă urmărește simplificarea legislației în domeniul administrației publice, obiectiv urmărit și în Strategia pentru consolidarea administrației publice în perioada 2014–2020, aprobată prin Hotărârea Guvernului nr. 909/2014.
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From the time of the four Geneva Conventions (1949) and the 1st Additional Protocol to those (1977) till present days, the notion of belligerency has extended and restructured itself. The evolutions of terrorist groups from the national level of organization to transnational level start to raise the question of the legal qualification of those structures from criminal groups to belligerents. Has the terrorist group got beyond the borders of national law and start to acquire a legal personality in the international law of armed conflicts? In the present study we will start from the classical definitions of the international armed conflict, non-international armed conflict, then observe the evolution of those notions under the case law of the international criminal tribunals set off by the United Nations for Rwanda and former Yugoslavia, as well as the Status of the International Criminal Court, all reflected in contemporary legal doctrine. At the end, we will analyse the capacity of the terrorist group as armed conflict generating factor.
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This study aims to advance solutions in view of determining the effects triggered by decisions issued by the Court of Auditors, establishing the unlawfulness of granting certain rights through collective labour agreements concluded at the level of public institutions financed entirely from own revenues, on the clauses of the collective labour agreement by which those rights were established.
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The study devoted to the loan contract resumes in a new form, determined, indeed, by the new Civil Code as well, this type of contract with a millenary existence, which has its roots in the Roman Age. The study emphasizes the evolution in time of the loan contract, from the essentially free loan, concluded between relatives, friends, acquaintances, a contract in which the moral precepts, including those related to religious morals, were extremely obvious, to the current loan contract, with an onerous variant, a contract that, without having lost its viability, has become extremely topical, useful. The study also emphasizes the form in which the Civil Code has insisted on regulating this type of contract, under the more or less beneficial influence of the doctrine and of the case law prior to its adoption. We tried, where we found it necessary, to go beyond the traditional patterns of the contract, as it is regarded by a significant part of the doctrine, and to accredit other points of view, being fully aware of their fragility. Last but not least, we tried to adapt the theories of some pragmatic exigencies, which, ultimately, should prevail over any constructions more related to the philosophy of law, not to the changing law.
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Requests for clarifications regarding offers submitted by tenderers in a public procurement procedure are a necessary instrument for contracting authorities that allow them to avoid any unjustified rejection of any offer and breach of the general principles described by the national and European provisions. Questions such as if there is still a debate on the right or obligation to address clarifications are treated in the article. The analysis takes into consideration the provisions of the new legislation on classic public procurement in contrast with the old legislation in order to seek the differences and the similarities.
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Chestiunea pusă în teză generală la înălțimea principiilor fundamentale ale dreptului nostru public trece peste importanța litigiului concret cu ocazia căruia se pune această chestie. Suntem deci datori a o examina la acea înălțime și justiția la rândul ei e datoare și în drept să-i dea soluția care o va crede mai conformă acelor principii. Fără îndoială că nu este fără greutate considerația generală ce s’a invocat că dispozițiunile constituționale ar putea să rămână fără efect, dacă ar fi permis legiuitorului ordinar să distrugă prin opera sa legislativă bazele pe care este clădit tot edificiul vieței noastre publice, așa cum este el așezat în pactul nostru fundamental și dacă justiția nu ar avea dreptul să repună la loc părțile vătămate ale acestui edificiu.
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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.
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Until the entry into force of the Treaty of Lisbon, the citizens of the Member States of the European Union were participating in the democratic life of the European Union by their recognized right to submit petitions to the European Parliament and the right to address the European Ombudsman. The Treaty on the European Union (TEU) reinforces the citizenship of the Union and enhances the democratic functioning of the Union providing, among others, that every citizen must have the right to participate in the democratic life of the Union through a European citizens’ initiative. This procedure gives the citizens the opportunity to directly contact the European Commission, by presenting to the Commission an application whereby it is invited to initiate a proposal for a legislative act of the Union in view of implementing the Treaties, the procedure being similar to the right conferred to the European Parliament under Article 2251 of the Treaty on the functioning of the European Union (TFEU) and on the right conferred to the Council under Article 2412 of the TFEU. -
In this study the author presents the focus points regarding the evolution of maritime laws and the most important aspects in respect of free shipping and trading between states. Therefore, there are examined legal aspects concerning the status of all the motorways of the sea, the natural straits, the ship registration and the ownership of the vessel. The Geneva Convention on the High Seas of 1958, the United Nation Convention on the Law of the Sea of 1982 and the United Nations Conference on Trade and Development are essential and represent the basis for today’s maritime laws and regulations.
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10 December 2016 marks 60 years from the date when the General Assembly of the United Nations Organisation opened for signature (and 50 years from the date when they entered into force) the two international covenants on human rights: International Covenant on civil and political rights and International Covenant on economic, social and cultural rights. These, along with the Universal Declaration of Human Rights and the United Nations Organisation Charter, make up the hard core of the protection of human rights, within the United Nations Organisation (UNO). The 50th anniversary of their entry into force is equally a reason for balance, namely reflection and projection into the future. Thus, in 1966, the design of the two different conventional instruments, corresponding to the two traditional categories of human rights (civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand), was based on their different legal nature, on the East-West ideological divisions, or on the necessity to treat them differently in the process of implementation at state level: the immediate implementation (civil and political rights) v. progressive realization (economic, social and cultural rights). However, the initial situation did not stay within the same parameters, but it gradually evolved. Although initially conceived as „political obligations” in the economic, social and cultural fields and rather left at the discretion of StatesParties, the economic, social and cultural rights have acquired, in time, through the work carried on by the Committee on Economic, Social and Cultural Rights (CESCR), a position that allows them to claim, in the next 15 years, a significant role in the process of implementation of the 2030 Sustainable Development Agenda. In such conditions, in this paper, the author initiates an evaluation of the doctrine of economic, social and cultural rights in the past two and a half decades, as well as of the way in which CESCR has built the „profile” of these rights, in this regard being evaluated two of the work methods used by CESCR, namely: General comments and the new LOIPR procedure – List of Issues Prior to Reporting.
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Within this paper, the author makes a thorough analysis of the offence regulated by Article 277 of the Criminal Code, starting with the reason of incrimination and presenting in detail the constitutive elements of this new offence. To this end the author often makes reference to the provisions of the Statement of reasons of the Law No 286/2009. At the same time, the author confers a particular importance to establishing the existing relations between the offence provided by Article 277 of the Criminal Code and those regulated by Article 12 point 2 of the Law No 78/2000, by Article 269 of the Criminal Code, respectively.
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Within this study, the authors intend to analyse the enforcement of judgments pronounced by the administrative disputes courts, in the light of the general provisions of the Civil Procedure Code and of the special provisions of the Law on administrative disputes No 554/2004, as well as of the case law in this matter.
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This study makes an examination of the legal provisions regarding the retirement of the university teaching staff. There are analyzed in a critical manner the provisions stated in Article 289 (3) and (6) of the Law on national education No 1/2011, which refers to the continuation of activity by the retired teaching staff and to the maintenance of the quality of titular in education and/or research. The author believes that the syntagms used by the mentioned texts do not receive an exemplary drafting, which may lead to different interpretations. The author also points out that, in the administrative practice, some university senates have adopted methodologies capable of annihilating the application of the legal provisions regarding the maintenance of the quality of titular of the teaching staff, solution appreciated as deeply illegal. At the end of his study, the author considers that it is necessary a better drafting of the texts relating to the maintainance in office of the university teaching staff whose teaching and scientific performance is undeniable. Likewise, de lege ferenda, it is estimated that such a possibility should be recognized only for university professors, not for all teaching staff.
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This article emphasises the special situations of some employees of the public hospitals, of the forensic medicine institutes and of the employees of some quarry mining exploitations, who have reported prejudices to their right to health and safety at work by the conduct of the employers, of the trade unions and even of the public institutions with powers of control and of ensuring the respect for these rights.
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This article aims to examine Article 16 of the Labour Code, republished, on the requirement of drafting individual employment agreement in Romanian language, from various standpoints, such as: (i) applicable sanction for failure to conclude the individual employment agreement in Romanian language; (ii) the requirement to observe the principle of equal treatment in cases where the individual employment agreement is concluded with a foreign citizen or a national of another Member State of the European Union or the European Economic Area, concretized, inter alia, by drafting the individual employment agreement in the language of the foreign citizen; (iii) the probative value of the versions of the individual employment agreement concluded in several languages.
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The European projects of codification of the law of obligations evoke the principle of good faith throughout the evolution of the contract, as evoked in the Civil Code of 2009. Good faith and bad faith in contracts have a role worthy of attention and of great value in our civil law, by the entry into force of the new Civil Code on 1 October 2011. The modern vision extends the duty to act in good faith and to avoid any conduct in bad faith on the creditor as well. For the phase of performance of the contract, the obligation to minimize the own prejudice as a result of a non-performance of obligations is regarded as a function of the good faith. By establishing for the first time in the Romanian private law a genuine obligation as duty of the contractual creditor to no longer show passivity in order to moderate the future prejudice, the new Civil Code fully answers the imperatives of the functioning of a modern justice, encouraging more and more the execution oriented towards the economic finality of the contract, and not just the legality of the contract and its compliance with the commitment assumed.
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The new Romanian Fiscal Procedure Code has established a special legal act, of an absolute novelty, called „temporary taxation decision”. This is a legal administrative fiscal act, integrated into the payment of the additional main fiscal obligations established in the course of the fiscal inspection. However, the law assigns to it a few elements that individualizes it in relation to the common taxation decision, taken over in the new legal regulation without any substantive amendment. In this context, we propose the analysis of this new type of fiscal administrative legal act, with the following objectives: emphasising the reason of this establishment and of its legal nature; configuration of the premises of its issuing and of its legal valences; establishing its connection with the taxation decision issued on completion of the fiscal inspection. We will use as main documentary point of reference both the provisions of Article 133 of the Law No 207/2015 on the Fiscal Procedure Code and the regulations enacted for their uniform application, pointed out throughout our analysis.
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The article analyzes how there are settled in court, according to Chapter V of the Law No 101/2016, the disputes in matters of award of public procurement contracts, of sectoral contracts, of works concession and services concession contracts. The authors emphasise the specific features of the manner of settlement of these disputes, mentioning among them: the material jurisdiction pertains to the section of administrative disputes and fiscal matters of the tribunal, through panels specialized in public procurement, and the territorial jurisdiction pertains to the tribunal in whose district it is located the head office of the contracting authority. The case shall be settled as a matter of emergency and with priority, and filing a request for summons in matters of public procurement shall not have an enforcement suspensive effect. The first hearing shall be set 20 days after the date of registration of the complaint, and the subsequent trial terms can not be longer than 15 days, and the entire duration of the procedure can not exceed 45 days from the date of referral to the court. The judgment may be challenged by recourse, within 10 days from the communication, at the section of administrative disputes and fiscal matters of the court of appeal, which sits in a panel specialized in public procurement. According to the authors, it is justified to establish a special law for the settlement of the disputes in matters of public procurement.
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The philosophical inquiry of law, unlike the positive legal sciences, is concerned to find answers and arguments as nuanced and deep as possible to questions and issues such as: the origin and meanings of the law and of the legal phenomenon, the legitimacy of the legal norms or the finality of law. This analysis, mostly philosophical, is not a simple rational exegesis, but it also has a practical importance since, depending on the answers and the solutions adopted, there can be formulated, interpreted and applied the principles of law, as well as the concrete, positive legal norms and, mostly, there can be understood the complex relationships between man and society, on the one hand, and, on the other hand, it can be better known the legal system in its unity or in its historical determinations and configurations. In this study we summarize the historical evolution of the main theories and conceptions on the origin, meanings and finality of law, as ideological subsystem. Arguments are brought in favour of the topicality and importance of jusnaturalist theories (of the natural law), because, in relation to man and to rationality, they best explain the unity and stability of the law not only as normative system, but rather as value and rational reality, which, by establishing some rights inherent to the human being, intangible, rational and inalienable rights, proves the atemporality of law, as expression of some rational paradigms valid in all times and which can be distinguished and understood in the historical evolution and fluctuation of the positive law. -
This study proposes the approach of an identified problem with regard to the regulation of the manner of applying the complementary punishment of prohibition to exercise some rights. By the analysis made within this study, the author identifies a situation of inequity which can arise in precise cases between the case of the sentenced person conditionally released from serving the punishment of life imprisonment and the case of the conditionally released person sentenced to imprisonment in detention.
