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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. -
The motivated findings and conclusions of the expert or of the laboratory or specialized institute from which the expertise has been requested will be recorded in a written report. Exceptionally, when the expertise is carried out in front of the body that disposed/ordered its execution, the expertise report may be oral. The form of the expertise report also depends on the nature, as well as the specificity of the problem that generated the expertise. In all cases where the expertise requires time, documentations, travels, researches, analyses, laboratory tests, etc., the expertise report will take the written form. In case the expert can immediately express his opinion on the factual circumstance whose clarification requires specialized knowledge, he will be heard during the meeting, and his opinion will be recorded in a minutes, according to the provisions relative to the recording of the witness statement, which apply accordingly. As such, the expertise report is the document by which the expert informs the court of all the legally collected information which clarify (bring light on) the issues to be examined, being, therefore, the means by which the evidence is presented to the judge. The expert must limit himself to reporting what he has perceived, without expressing his opinion on the consequences of fact and of law that might result. The text of the report will include clear, short and dense phrases and sentences, using accessible vocabulary, without ambiguous formulations or terms and without references to proceedings outside the file. The technical terms, which are difficult to access, will be explained at the bottom of the page or in brackets, in order to facilitate the understanding of the conclusions.
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The voting right of the shareholder at the general meeting of the shareholders is an accessory right to the ownership of the shares, by which the shareholder protects his interests and exercises the supervision and control over the management of the company. It is a true prerogative of the shareholder’s access to the substantiation of business decisions, which materialize through the will of the company. The exercise of the right to vote is governed by the principle of good faith and the principle of proportionality, but may be limited in the situation of the conflict of interests between the shareholder and the company. The shareholder in conflict of interests with the company is obliged to abstain from the vote, if by his vote it contributes to the formation of the majority of a decision with harmful consequences for the company. The situation of conflict of interests and the sanction of non-observance of the obligation to abstain from voting cannot be determined by the other shareholders, but only by the court. If, through the decision adopted with the participation of the shareholder in conflict of interests, a prejudice has occurred, the applicable sanction is the commitment of its liability. Such a decision is valid, but it can also be cancelled, provided that it is the result of a majority abuse. The same fate has the decision adopted by the minority shareholders with the abusive removal of the shareholder’s vote supposed to be in conflict of interests.
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Introducing Article 1282 (2) created a new dimension in the new Civil Code as regards the application of the groups of contracts, as well as the transmission of accessories with the main asset on the descending or even ascending line of the contract chain. At the same time, the text of the law is the legal basis for formulating a direct action in guarantee which, as we shall see in the present study, is in some cases complemented by other express texts of law referring to particular cases of transmission of a right to action within the group of contracts. In the present study, we attempted to make a comparative analysis between the assignment of contract and the assignment of ancillary contractual rights or obligations, since, although the two transactions are similar, it also presents many differences that need to be highlighted. At the same time, we made a brief leap in common law, as well as European law on the notion of assignment of contractual accessories. Though, the subject is far from being covered by the present study, we consider that we have reached the main points on what Article 1282 (2) in the new Civil Code establishes, as well as its practical effects, and the comparative perspective with English, Scottish, Spanish, German and, last but not least, European law clarifies or strengthens some aspects as regards the rationale for the introduction of the text.
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Potrivit art. 342 alin. (6) C.pen., constituie infracțiune și se pedepsește cu închisoare de la 6 luni la 3 ani nedepunerea armei și a muniției la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. Totodată, conform art. 112 alin. (1) lit. f) C.pen., bunurile a căror deținere este interzisă de legea penală sunt supuse confiscării speciale (cu notă parțial aprobativă). În cazul faptei prevăzute în art. 342 alin. (6) C.pen., cu privire la care s-a dispus o soluție de clasare întemeiată pe dispozițiile art. 16 alin. (1) lit. b) teza a II-a C.pr.pen., arma și muniția intră sub incidența confiscării speciale, în temeiul art. 112 alin. (1) lit. f) C.pen., în procedura reglementată de art. 5491 C.pr.pen., în ipoteza în care făptuitorul nu a depus arma și muniția la un armurier autorizat în termen de 10 zile de la expirarea perioadei de valabilitate a permisului de armă. (Înalta Curte de Casație și Justiție, Completul competent să judece recursul în interesul legii, Decizia nr. 10/2019).
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By the present study the author analyzes in a critical manner the modality of regulation of the mechanism of the compensatory review introduced by the provisions of the Law No 169/2017, which has amended the Law No 254/2013 on the execution of custodial sentences and of measures involving deprivation of liberty ordered by the judicial bodies during criminal trial. In this respect there are examined the case law of the European Court of Human Rights in the matter of the accommodation of detained persons and the premises that were the basis for the adoption of this regulation. Thus, it is noted that the legislator has set a higher standard than the one imposed by the European Court of Human Rights, which has ruled that, under certain conditions (the presence of ventilation, lighting and privacy, etc.), the accommodation in a detention space that ensures an area of between three and four square meters for each detainee is in accordance with Article 3 of the European Convention on human rights and fundamental freedoms. In addition, it is shown that the legislator did not insert in the national law the whole legal mechanism emphasized in the case law of the European Court of Human Rights, where a preventive means of appeal has been introduced, allowing the detained persons to file complaints to a judicial authority with regard to the material conditions of detention, as well as a compensatory means of appeal, which provides a reparation for the persons who have already been through a detention contrary to the Convention. Likewise, the author analyzes in a theoretical, but mostly practical manner, the modality to apply the compensatory review mechanism depending on the processual phase in which it is analysed its incidence, as well as the effects produced at the level of the institutions of substantive criminal law, making reference to the binding decisions pronounced by the High Court of Cassation and Justice and to the national case law.
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The article analyzes the refusal of the convicted person to be subject to the medical examination upon the arrival to the penitentiary, from the perspective of the Romanian legislation, in correlation with the international instruments regarding the rights of detainees, and legislative solutions adopted by other European states, arguing some proposals de lege ferenda meant to facilitate the fulfilment of the positive obligation of the state to prevent the spread of contagious diseases in the penitentiary environment. The objectives of the article are to determine whether the detainee has the right to refuse the medical examination, whether the Romanian legislation complies with the requirements of the international instruments regarding the protection of the rights of the detainees, respectively whether they have similarities with the legislations of other European states; at the same time, the aim is to identify some rules applicable to the penitentiary system, derived from the case law developed by the ECtHR/Court and from international documents, in relation to the right to health and the relationship between the autonomy of the detainees as persons and the prison environment.
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The phrase actio libera in causa designates that situation in which the perpetrator, at the time of committing a deed stipulated by the criminal law, was in a situation that excludes the imputable character of the deed. However, it must be emphasized that, at a previous moment, when the perpetrator was not under the incidence of such causes, he triggered or allowed the emergence of some states of fact that would eliminate the imputable character of the deed. In such a hypothesis, the criminal doctrine from Romania is unanimous in accepting that the person who causes his own state of incapacity will be liable under the criminal law. In order to argue the possibility that a person, at the time of committing a typical action or inaction, be liable under the criminal law, the authors of criminal law in our country have adopted the model of exception or extraordinary imputation. According to this system, the perpetrator will be liable under the criminal law for causing his own state of incapacity. Thus, the imputability, in the case of the construction of actio libera in causa, will not be analyzed at the time of committing the criminal deed, but in relation to the moment when the perpetrator caused his state of incapacity. The construction actio libera in causa, from our point of view, covers only certain hypotheses in which the perpetrator creates the appearance of existence of a cause of imputability (intoxication, irresponsibility, physical or moral constraint), and not those hypotheses, in which the perpetrator provokes the existence of a justifying cause.
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Artificial intelligence can be classified into analytical artificial intelligence, human-inspired intelligence and humanized intelligence, and in reference thereto it should be noted that, although computer systems reproduce human emotions and expressions, it is difficult for them to comprise a sufficiently large database so as to be able to express the human feelings of a person at the time of making a decision. Although the predictability of a judicial decision by artificial intelligence may take the form of legal certainty, in criminal matters, however, the data used may not reflect the complete reasoning of the judge, which is composed of a multitude of decision-making factors. Therefore, the authors consider that in criminal matters the decision-making must belong to the human judge, the judge being the one who will decide on the basis of the evidence administered not only with regard to satisfying the objective side of the offence, but especially with regard to its subjective side. -
The purpose of this study is to analyze the legal regime of the right of national minorities to use their mother tongue in the public administration, as it is regulated in the Administrative Code, recently adopted by the Government by the Emergency Ordinance No 57/2019. It was established in the Romanian legislation immediately after 1989, through the first Law of the local public administration No 69/1991, taken over and developed by the Law No 215/2001, and through the Administrative Code, it finds its place, mainly, in the 3rd part thereof, dedicated to local public administration. In the Constitution it was established in 2003, by completing the former Article 119, which became Article 120, with a new paragraph, which expressly regulates it.
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The amendments and additions to Article 56 of the Labour Code have eliminated the discrimination on grounds of sex established by the Constitutional Court in the Decision No 387 of 5 June 2018 and they reflect the European and national policy of maintaining in service the employees who meet the retirement conditions for old age, but the new provisions of Article 56 of the Labour Code require a relatively complex interpretation, which raises problems in terms of their clarity and predictability and makes their understanding by the subjects to whom they are addressed difficult.
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The apparition of the first Administrative Code of Romania – an essential legislative document for the activity of the public administration, for the life of the Romanian State, as a whole – brings, among other things, a significant novelty: the regulation of the legal regime applicable to contractual staff. Such a regime is a justified option of the legislator, taking into account the particularities of this category of personnel – an integral part of those who perform the work as employees. The study carefully analyzes the specific legal norms that apply to the contractual staff and solutions are offered for their practical application. It is concluded that two categories of legal norms produce their effects: the first is constituted by the norms specific to the contractual staff, and the second is formed of the norms that apply also to public servants. Although both categories of norms are part of the Administrative Code, they – respectively those that apply to the contractual staff – are also integrated as part of the labour law, being at the confluence of labour law with administrative law. The common law for the regulations regarding the contractual staff can be found in the norms of the Labour Code.
