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Transnational law is one of the topics hotly debated by the legal scholars all over the world. The present paper furnishes some research instances able to stress the importance of the transnational law itself. The so-called „supply chains” require the virtues of the transnational law, mainly understood as methodology, to be put in action. From a practical point of view, this paper points out the way in which the nations-States and corporations behave in settings truly transnational. From an academic point of view, this paper invites the Schools of Law from Romania to include the so-called „Theory of Transnational Law” in their academic curricula. -
Arbitrability is the entry point of arbitration: it identifies those cases which can be settled by way of arbitration and in which the parties can exclude court procedures and state courts. This article examines, in light of the applicable international treaties, the choice-of-law rule that determines the law applicable to arbitrability and, in order to establish this choice-of-law rule, analyzes the purpose of arbitrability. It argues that arbitrability should be conceived as a question of competence and not as a question emerging from public policy. It follows from this thesis that the application of the law of the forum (lex fori), the dominant approach in international treaty law, is not justified and the exclusion of arbitrability is warranted only in cases which belong to the exclusive competence of the courts of or raise real problems of public policy for the forum.
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Family relationships are an area of great interest due to its intimacy and sensitivity. Because of the unpredictability of modern life, many families are falling apart. Thus, the issue of dissolution of marriage, whether through divorce or separation, is of paramount importance for modern society. Both the European Union and some Member States, especially the predominantly Catholic ones, have adapted to religious realities and regulated spouses’ separation through secular laws. The purpose of this article is to reveal that the Romanian law has the institution of spouses’ separation which produces, however, only effects of canon law, and not of civil law. The methods used in support of our thesis are analysis and synthesis. In Romania, the state recognized the Canonical Codes of the Roman-Catholic and Oriental Churches that provide for separation. But it denies any civil, secular effects of the institution. It is high time for the Romanian legislator to regulate the institution of spouses’ separation whether by altering the Civil Code or through a concordat between the state and the Holy See. The secular effects of spouses’ separation will protect the religious freedom of the Catholic people and the traditions of the Roman Catholic denomination. Moreover, introducing legal separation in the Romanian law will ensure a better application of the private international law of the European Union which provides for the international jurisdiction and for the law applicable to such separation.
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Starting from a legal classification found in a situation from the judicial practice, the author of this study addresses the delicate issue constantly generating contradictory solutions of the relation between the abuse of office and other offences from the same category, committed by the same deed, applying the rules of ideal (formal) concurrence of offences. The arguments are convincing and allow the conclusion that, in such situations, it cannot be retained the commission of a concurrence of offences, whereas the abuse of service, whether there are involved deeds committed under the incidence of the current Criminal Code or of the previous Criminal Code, maintains its subsidiary character, the incrimination text which defines it becoming incident only insofar as it cannot be retained another offence which violates the social relations that constitute legal object for these service offences.
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According to Article 41 (1) of the Criminal Code, if the offender convicted by a final judgment is subsequently tried for a concurrent offence, the previously established punishment, under the conditions of concurrence of offences, shall be separated, the increase shall be removed and it shall be merged with the newly applied punishment, adding a new increase. In compliance with Article 10 of the Law No 187/2012, when at least one of the offences in the structure of plurality has been committed under the new law, the sanctioning treatment of plurality shall be applied according to the new law, even if for the other offences the punishment was established according to the former, more favourable law. This legal provision comes in conflict with the principle of non-retroactivity of the criminal law.
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Prin renunțarea la dreptul de a invoca accesiunea, proprietarul fondului abandonează prerogativa folosinței terenului în favoarea proprietarului construcției, pe toată durata de existență a acesteia, generând un mod atipic de naștere a dreptului de superficie, acceptat în sistemul Codului civil din 1864 și prevăzut expres în sistemul actualului Cod civil la art. 693 alin. (4) teza I. Așadar, în forma sa deplină, superficia ca dezmembrământ al dreptului de proprietate imobiliară are în conținutul său proprietatea asupra construcției și prerogativa folosinței terenului (ca atribut al proprietății, iar nu doar o simplă stare de fapt protejată juridic, atribut transmis pe durata de existență a construcției de către proprietarul fondului către constructor). Or, așa cum am arătat mai sus, prin contractele de închiriere pârâta a transmis folosința terenului ca și obiect al unei obligații personale pentru o anumită durată, și nu ca atribut al proprietății, pe toată durata existenței construcției. (Curtea de Apel Timișoara, Secția I civilă, Decizia nr. 114 din 30 iunie 2021, www.rolii.ro)
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The present study intends to analyze the principle of preeminence of law and a few perspectives over this principle, especially the common law perspective. The author starts from the premise that the principle of preeminence of law is a common European value on which any democratic state must be founded, being the essence of the state of law and also an element of the common heritage of the Member States of the Council of Europe. The author has, as a research hypothesis, the fact that the history of Romania and its political course in the last century raises problems of understanding a philosophy based on the concept of preeminence of law. Coming after a period of communism, in many respects our country has passed from one extreme to the other, from many restrictions to too much freedom and legislative or power void, from a typology of totalitarian regulation to a form sometimes too liberal, which causes a functional instability of the state as a whole. One can notice that the elaborated study has as objectives the analysis of the general concepts recognized in common law regarding the preeminence of the law for the development of the Romanian legal doctrine in order to deeply understand and fully implement this principle in our legal system, and – more broadly – in our society. Regarding the research methods, the comparative and the quantitative method have been predominantly used, with elements that refer to the sociological and historical method. Notions and concepts specific to common law-type systems have been presented in order to identify possible solutions for taking over and integrating these concepts in our legal system. From the point of view of the results of the research, it has been concluded that the preeminence of law is aspirational and, therefore, it is a matter of degree. From the perspective of our country, we have shown that we have not yet succeeded in overcoming the horrors of the past, with reference here to the ideologies, philosophies and mentalities that have become part of us in the last century. Things are constantly evolving, but we have failed to achieve the level of civilization and understanding that exists in true democracies, one of the causes being the inconsistency of the choices we have made in the last 32 years. Regarding the theoretical and practical implications of the study, they consist in understanding some specific concepts developed in the common law-type systems, the need to implement and fully assume, at society level, the principle of the preeminence of law, with all its components and mechanisms, as well as of the awareness of the current historical moment, in which we must progress at the level of society towards the ideal of a developed and happy society. -
At international level growing concerns appeared about the involvement of offenders in transactions with cryptoassets, the market being an unregulated one and providing a dose of anonymity to transactions. In this context, the specialised bodies have initiated a series of recommendations to help the states, but also cryptoasset service providers, to adopt the necessary measures in order to prevent and combat money laundering and terrorist financing. The cryptoasset market is less known to the general public, but for the persons involved in illegal activities, concerned with concealing the source of incomes, it is an opportunity to benefit by those profits, without revealing their source. The cryptoasset market involves rapid changes, new typologies and, implicitly, new risks, being necessary that all these processes be dealt with both by the government bodies and by the service providers. The international approach to cryptoassets differs, as there are states that have forbidden transactions with such assets, states that have adopted regulations, in compliance with the recommendations of international bodies, and also states that have not adopted measures in this field. The study intends to analyze how these recommendations have been taken over and implemented at national level and what are the challenges which the government bodies and the players in the cryptoasset market must face.
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Domestic violence is a social problem of contemporary communities, including the Republic of Moldova, because it has not yet found effective preventive solutions and there is no consensus on the coherent definition of domestic violence, especially when it comes to the criminological side of this phenomenon. Therefore, following the research of the specialized literature and various normative acts, we can define the crime of domestic violence as a negative social-legal phenomenon, with mass character, variable from a historical point of view, which consists of all illegal acts (crimes and misdemeanors) committed intentionally against family members, as a rule, for the purpose of controlling and dominating them, which causes physical, psychological or material damage, committed in a certain territory, in a certain period of time characterized by quantitative indices (level and dynamics) and qualitative (structure and character).
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În ipoteza în care nu se face dovada că notificarea de reziliere a fost comunicată în condițiile prevăzute în contract nu se poate considera că a intervenit rezilierea și prin urmare operatorul de telefonie nu este îndreptățit la plata despăgubirii aferente rezilierii contractului. Este posibilă constatarea caracterului abuziv al clauzelor contractuale privind plata penalităților de întârziere și/sau a despăgubirilor datorate în caz de reziliere a contractului, însă instanța de judecată trebuie să pună în discuția contradictorie a părților respectivul aspect.
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The study examines the factoring contract as an easy and quick method of financing of the adherent by way of turning to account of the unmatured claims. The factoring, regulated internationally, has been recognized and defined in the Romanian legislation, but without any regulation of its legal system. After the analysis of the framework contract and of the actual factoring contract, the study examines and explains the forms of the factoring contract and their finality, as well as the constitutive elements of the contract, with reference to the specific of the contracting parties and of the participants, as well as to the derived object, concerning certain, liquid, assignable, but not exigible claims. In the approach of the effects of the contract there have been analyzed the rights and obligations of the contracting parties and the relations generated by the contract. In respect of the obligations of the adherent, attention was paid to the transmission of the right over the claims by means of sale and to the achievement of the conventional subrogation and the moment of transmission of the right over claims, depending on the distinction between old line factoring and the maturity factoring. Likewise, it has been analyzed the legal and conventional obligation of warranty of the adherent in correlation to the risks assumed by the factor, related to payment default of the claims and the insolvency of the assigned debtor. In the same context, it has been also treated the problem of notification of the debtor concerning the assignment of claims, highlighting the consequences of the notification with regard to the enforcement of claims, as well as the aspects of opposability of the assignment to the debtors and to third parties, with reference to recording of the transmission of the universality of claims in the Electronic Archive of Security Interests on Movable Property. The rights and obligations of the factor have been examined from its perspective of owner of the invoices accepted for payment and of the takeover by the latter of the task of collection of claims from the clients of the adherent, in close correlation with the factor’s function of financier of the adherent, by the payment of the claims assigned before maturity. The patrimonial factor-adherent relations have been integrated into the role of the current account opened by the factor for the payment of claims assigned and of the discount covered by the adherent, resulted from the difference between the nominal and conventional value of the claims assigned. By the correlated mechanism of crediting-debiting, the current account also fulfils its accounting function of crediting the adherent with the amounts that the factor collects as mandatary with regard to the invoices not accepted for payment and the function of debiting with the amounts owed by the debtor, following the regression for the claims for which the adherent has conventionally assumed the risk of payment default or of insolvency of the debtor. The effects of factoring contract are analyzed also in terms of its impact in case of insolvency of the adherent, including of the consequences related in this case to the turning to account of the claims assigned with regard to the assigned debtor. It was treated also the reverse-factoring mechanism, as well as the relations between the adherent, the factor and the assigned debtor, in relation to the effects of the notification in terms of the turning to account the claim right of the adherent, of the factor and of the payment obligation of the assigned debtor. In the final part of the study, there have been outlined the legal features of the factoring contract, with special outlook on the character intuitu personae of the contract, on the character of adherence contract and of random contract, in the hypothesis that the factor assumes the risk of payment default or of insolvency of the assigned debtor. The scientific approach led to the classification of the legal nature of the factoring contract as a complex of contracts and legal figures different, but convergent, with its own physiognomy and autonomy, which differentiates the factoring contract from its components. The particular configuration of the factoring contract, which defines it as a whole with its own legal system, has brought to attention the need for demarcation of the contract from its components. -
This study accurately highlights, on the one hand, the regulatory normative framework of the prefect and of the institution of the prefect starting from 1990 and until now and, on the other hand, the political vision on this institution, in the different stages of relationing between Romania and the European Union: pre-accession, accession, integration and present. The study critically analyzes both the ways of professionalization and depoliticization of the prefect function, as well as the actual repoliticization that took place in 2021. The failure to professionalize the function of prefect is presented in the broader context of the failure to professionalize the function and the public administration in general, one of the essential causes that determine the low performances of the Romanian public administration. Likewise there are critically exposed the legislative interventions to dilute the quality of the prefect of Government representative in the territory, in relation to the administrative function of the Government and its corruption into a territorial political agent of the Government, seen as an emulation of the political parties that form it. This political reverie is thus the basis of the legislative amendments that have led to the unconstitutional situation in which the implementation of the government programme in the territory by the prefect, which is in any case impossible to achieve as we will argue below, becomes the main commitment of the prefects, to the detriment of the very constitutional responsibility of the prefect, which determines the precise reason for the existence of the institution of the prefect – the administrative guardianship. All these are primarily the result of an ad-hoc and discretionary style of regulation – which can also be seen in the very large number of amendments brought to the framework law regarding the civil service – the Law No 188/1999, republished, as amended and supplemented: some of them by emergency ordinances subsequently declared unconstitutional, but which produced significant upheavals in the system.
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Under the impulse of the ecoclimatic realities and of the evolutions of the international law, the great majority of the constitutions of the world states have incorporated, starting from 1970, environmental provisions and have recognized the right to the environment as a new fundamental right. The relevant case law and doctrine have contributed to explaining the meanings and dynamization of the progress of the constitutional provisions in the matter, as well as the assertion of the environmental protection as a constitutionally protected value. The constitutionalization of the environmental law in Romania, which began by introducing in the Constitution of 8 December 1991 the first provisions concerning the environment, continued by the revision from 2003 (which established the right of every person to a healthy and ecologically balanced environment) and it was developed by means of a relatively consistent case law which revealed concrete dimensions of the environmental law, its relations with the other funda mental rights and its constitutional-legislative guarantees. At the same time, the legislation has taken over and developed the constitutional provisions, giving them concreteness and practical efficacy. The evolutions of the constitutionalization of the environment in terms of positive law involved a theoretical analysis and superior understanding and thus have led to the formation of a new scientific legal discipline, respectively constitutional law of the environment. After its recognition, first in common law countries (U.S.A., Canada, 2012), then in some continental law countries as well (France, 2021), the new discipline is considered as being about to be born and acquire the academic recognition it deserves also in Romania.
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During the execution of custodial sentences, detainees participate in various activities and educational program, psychological assistance and social assistance that facilitate the adjustment to prison life, support social reintegration and create the framework for learning the rules of social coexistence in the outside society. The central element of this research is the religious freedom of persons deprived of their liberty and the specific way of exercising it in places of detention, considering that a balance must be preserved between the fundamental right to freedom of thought, conscience and religion and interest of penitentiary administrations to maintain security in places of detention, respect for the rights of other detainees. Bearing in mind the content, but also the limits of religious freedom, the exercise of this fundamental right in places of detention has some particular characteristics because it influences the life in prisons, the diet of detainees, but also their other rights, and in this regard the special rules of exercise religious freedom can be determined on the basis of principles deriving from both national and European Court of Human Rights’ case law.
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At the same time with the entry into force of the Law No 85/2014 on the procedures for preventing insolvency and for insolvency, it has been also regulated indirectly the refund of the judicial stamp duty to the plaintiff who invested a court of law with a litigation against the defendant-debtor against whom a final interlocutory judgment to open the insolvency procedure had not been pronounced until the moment of bringing the action by means of common law. This study analyses the differences of approach between the old insolvency law and the regulation in force since 2014, by pointing out how the legislator decided to solve the issue of lis pendens created by simultaneously analyzing the same application within two separate procedures: the general one, before the common law court, and the special one, before the syndic judge. The study also analyses the implications of good faith, respectively of the guilt of the plaintiff who makes use of this application, with discussions on the moment, the manner of requesting the refund of the stamp duty, respectively of the amount whose refund may be ordered. -
The most striking word that illustrates the relationship between Romanian law and European law seems to be the word „marking”. Among the various nuances that can be assigned to the meaning of this word, three meanings are relevant from the perspective of the topic addressed by this paper. Thus, among others, to mark means (i) to influence in a significant way, or (ii) to bear a mark that illustrates a membership, or more precisely (iii) to change a destiny. All of these nuances are defining in order to describe the decisive and irreversible „imprint” that European law has made, is making and will make on our domestic law. Through this scientific approach we have set out to address the implications of this complex structure which involves a multidimensional union that includes elements of supranational law, following the paradigm of the interference. The example that we will focus on is the area of consumer protection, where we will also address issues regarding constitutionality in relation to domestic law, but especially in relation to European law. We will consider both the past and the future, but, naturally, we will focus our attention on the present. In the context of the current COVID-19 pandemic, while not focusing on any medical or health matters related to the pandemic, but rather on its ties with the emergence of a new global economic, financial and banking crisis, we will address the link between European Union law and domestic law.
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The financial law relations are relevant in the extended dynamics of the public law, as a reflection of the importance of public financial resources and of the technicality of the legal elements in the budgetary procedures. This study positions, in this context, a traditional institution, namely the preliminary procedure, as a space for the manifestation of the dynamics and points of tension deriving from legal conflict relations revealed as a result of the audit missions of the Court of Accounts. The analytical approach organized in a spectrum from general to special highlights the working hypotheses, the functions, the object and the finalities of the preliminary procedure in the matter of budgetary law relations.
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The study aims to present in a comparative manner the post-calculation clauses and the escalation clauses in international trade contracts, while presenting the main clauses of both categories, including the varieties of the well-known cost+fee clause. At the same time, the study gradually analyzes the structure of each type of clause, highlighting the main advantages and disadvantages that accompany the introduction of these clauses in trade contracts, both from the perspective of the owner and from the perspective of the contractor, who tries to transfer the risks to the owner, which in some situations may, paradoxically, even benefit from such a situation. -
It is necessary in the Romanian criminal procedural law to differentiate the conditions for the exclusion of derivative evidence from the conditions for the irradiation of nullity in continental law and to move them closer to the criteria of the fruit of the poisonous tree originating from the United States of America. We adapt these criteria and other criteria from foreign law systems to the context of Romanian law through the standards of the European Court of Human Rights. One of the conditions for excluding the derivative evidence is that the infringement from which it derives requires the exclusion of the resulting evidence to ensure the fairness of the proceedings. The derivative evidence has the capacity to convey the effect of the violation of the rights of the defence, the right to privacy or domestic law on the fairness of the proceedings, but in such situations the unfairness of the proceedings must be established on a case-by-case basis. The unfairness can be automatic if the infringement concerns Article 3 of the European Convention on Human Rights or consists in entrapment by law enforcement officers. The consequence is the automatic, absolute or relative exclusion of derivative evidence, depending on the nature of the infringement. The derivative nature of the evidence is determined quasi-automatically in the case of entrapment. In other cases, it must be concretely established, on the basis of the conditions of the causal link between the infringement and the evidence: the effect of the primary evidence and the effect of the unlawfulness on obtaining the derived evidence. The conditions for the exclusion of derivative evidence have consequences for its applicability. The sanction is not applicable when the primary evidence is not obtained illegally, but is inadmissible by its nature, because in this case the unlawfulness is missing. This condition is met in the case of acts such as arrest, therefore the exclusion of derivative evidence is applicable. The effect of the infringement is transmitted by means of the stress test in the case of early exclusion, occurs directly in the case of a continuing infringement and must be analyzed, mutatis mutandis, in the case of alternative means of proof concerning the same evidence. Since in the case of the irradiation of nullity according to the continental model the effect of the primary evidence is irrelevant and the effect of the unlawfulness is established in the abstract by law, the sanction is distinct from the exclusion of derivative evidence.
