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Starting from the situations encountered in the judicial practice, in the disputes regarding the right of the employees to the classification of their workplaces into outstanding or special conditions, and given the particularities of this fundamental right of health and safety at work, with a special view on the practical consequences which the recently pronounced decisions of the supreme court will have, decisions which have established that the employees do no longer have available the option of the action for establishing the classification of workplaces into outstanding or special conditions in contradiction with the employer, this article analyses the respect for the employees’ right of access to justice, to non-discriminatory treatment and to receive their benefits consisting of social insurance rights. -
In agreement with the given title, we dedicate this study to some discussions about various legal aspects of the contract of assignment of the patrimonial copyrights in the regulation of the Law No 8/1996 on copyrights and neighbouring rights. We have in view, especially, the legal nature, the legal characters, the definition, the object, the revision and the cancellation of the assignment contract. We believe that such an approach is useful, since the Law No 8/1996, being adopted under the influence of the „previous Romanian Civil Code”, is outdated, in some respects, by the normative solutions provided by the „present Romanian Civil Code”. In fact, this is the main reason that „enhances” non-unitary or questionable doctrinaire solutions in the matter.
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The article presents the nullities in the Criminal Procedure Code and supports the necessity to regulate the virtual nullities through a common provision, allowing the appeal court to cancel the sentence of the court of first instance and to send the case back for re-examination to the court whose judgment has been cancelled, when the challenged sentence is annulled and the court examining the merits is required to give another sentence.
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This study deals with the delicate problems of infringement of the provisions of the Constitution of Romania by the norms of the Criminal Procedure Code governing the legal regime of the action in cassation, an extraordinary means of appeal. The author of the study notes that the analyzed norms are not in agreement with the principles written in the Basic Law, invoking in support thereof, for identity of reason, the grounds of the Decision No 485 of 23 June 2015 of the constitutional contentious court.
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The new normative framework established in matters of public procurement, of sectoral procurement and of concessions, was required in considering the necessity to transpose the three European directives of 2014 into our domestic law. In addition to the three normative acts, it has been adopted a special normative act that regulates the remedies and the means of appeal in the matter of the procedure of award of the public procurement contracts, of the sectoral contracts and of the works concession and services concession contracts. In the ambience of the new normative framework thus established, this study intends to make a detailed analysis concerning the settlement by administrativejurisdictional means of the disputes derived from the procedure of award of these contracts, as well as the means of appeal that may be exercised against the decision of the body vested with administrative-jurisdictional powers.
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Curtea de Apel Cluj a dispus respingerea apelului inculpatului prin care acesta a solicitat achitarea pentru infracțiunea de vătămare corporală gravă în varianta alternativă a producerii consecinței de punere în primejdie a vieții persoanei, prevăzută în art. 182 alin. 2 din Codul penal anterior, dispunând, totodată, obligarea apelantului la plata sumei de 500 lei reprezentând cheltuieli judiciare în favoarea statului (cu notă critică). -
This article tries to bring into discussion the topic of naval laws throughout the last decades and, especially, the issue of safety on ship. Naval ship safety assurance is the process that provides confidence and it refers to the well-functioning of the ship, personnel, third parties and property. The most important aspect of this topic includes the Law from February 1907, followed by the Decrees No 40/1950 and No 443/1972 and the Law No 191/2003. In this article, the author has chosen to give a brief description of the naval legislation that is respected in our country and to analyze the differences between it and the international norms regarding the same aspect.
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In this paper the author has proceeded to a brief examination of the European normative act adopted in March 2016, which regulates the presumption of innocence and the right to be present at the trial within the criminal procedures, both rights being circumscribed to the right to a fair trial provided in Article 6 of the European Convention on Human Rights and Fundamental Freedoms. The study also makes a comparative examination which has in view how these rights of the suspect or of the accused are protected in the Romanian law, also expressing some critical opinions as concerns the European normative act. The elements of novelty consist in the examination made, as well as in the comparative analysis and the critical opinions expressed.
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This study includes an analysis of the provisions of the new Criminal Procedure Code referring to the warrant for technical supervision when it concerns the financial transactions of a person in relation to the provisions of Article 153 on obtaining data concerning the financial situation, the utility and appropriateness of using the two institutions, as well as the comparative analysis in relation to the old regulations. The author also presents critical aspects with regard to these institutions, having in view the different interpretations given in the judicial practice, as well as de lege ferenda proposals. The study refers only to the data concerning the financial transactions of a natural or legal person related to a bank account and the subsequent operations.
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The paper analyzes the institution of suspension of the enforcement of administrative acts pursuant to Article 14 of the Law on administrative disputes No 554/2004, as amended and supplemented, from the perspective of the solutions delivered in the recent years by courts of different ranks of jurisdiction, taking into account that the serious doubt on the legality of the administrative act must be distinguished easily after a brief investigation of the appearance of the right, because, within the procedure for suspending the enforcement, by which there can only be ordered provisional measures, the prejudgment of the merits of the case is not allowed.
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To say that man is the supreme value of a democratic society and of the state of law is a partly true statement. This is because it is known that, in the long period in which the principles of the constitutional democracy and of the state of law have been affirmed in the social practice, no human society succeeded in fully providing the individual with the full extent of its political, social, economic, cultural or religious value. Even in the states considered, without reservations, to be democratic there have been and still are threats to the physical and mental integrity of the individual from some state authorities and even indifference for the individual’s life. In fact, this actually explains that the constitutional utterances according to which „the right to life is guaranteed”, „the dignity and the personality of the individual are supreme values”. The existence of a rule of law and, more so, of a rule of constitutional rank, which affirms and enshrines in normative models the importance of man as supreme value of a socio-political community, proves that the compliance with this value still remains a standard, a requirement imposed on everybody as model of social behaviour.
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The author advocates for expanding the admissibility of the special contestation for annulment and for eliminating the errors of judgment, i.e. for the non-compliance with the legal provisions and the incorrect assessment of the factual situations (illegality and groundlessness of the judgments challenged). In order to support this opinion, the author resorts to the grammatical interpretation of the phrase „material error”, invokes the ECHR case law and the comparative law. He also proposes, in addition, the reintroduction of the action for annulment (in cassation), which has as object to correct the errors of judgment and which will have an essential role in unifying the judicial practice.
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This study raises the question of registration in the land register of some rights which originate in the fact of artificial real estate accession. We were interested to note the extent to which the parties might, by their agreement, temporarily register a property right of the author of the construction over this construction until the land owner invokes the accession in its favour. It is raised the question of the interest of such registration, which can only be temporary, because the doctrine has considered it to be affected by an atypical resolutory condition, of legal origin, as well as of the effect produced by this registration. On the other hand, in the situations where we admit the acquiring of the property right by artificial real estate accession by judicial means, it is required the analysis of the possibility of the court to recognize a property right over a construction built without a construction authorisation.
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This paper analyses the offence of conflict of interests, as incriminated in the new Criminal Code, by comparison with the old regulation, as well as the similar incrimination in the French Criminal Code, the study being illustrated with Romanian and French case law. Likewise, the author formulates some de lege ferenda proposals in order to improve the legislation in the field.
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The Decision No 641/2014 of the Constitutional Court has radically changed the preliminary chamber procedure, transforming it into a procedure much closer to which it must be, in the opinion of the European Court of Human Rights, a criminal procedure conducted before a judge, even if it does not end in the ruling on the merits of the criminal charge, but it solves aspects of a particular importance on the merits concerned. The change has consisted in the overturning of the characters initially imagined by the legislator, overturning that has transformed the preliminary chamber procedure from a procedure conducted without the participation of the prosecutor, of the parties and of the injured party, with a limited contradictoriality between the prosecutor and the defendant and predominantly written, into a procedure involving the participation of the processual actors, completely contradictory and oral, in which it becomes possible to provide evidence on the main object of this processual phase (the legality of the evidence provided in the criminal prosecution phase and the legality of carrying out the acts by the criminal prosecution bodies). Unfortunately, the latest changes brought to the preliminary chamber by the adoption of the Law No 75/2016, although they represent a step forward in the attempt to make this criminal processual phase to comply with the elements of a fair procedure, do not follow precisely the spirit of the decision of unconstitutionality, as the legislator has still left question marks about the fairness of the procedure as regards the hypothesis that there have not been filed applications and/or pleas and as regards the limitation of the means of evidence.
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Legal circulation of lands involved the need to adopt a law. Law No 17/2014 on the sale of agricultural lands from unincorporated areas is problematic, at least as it regards the conditions for acquiring lands and property rights in the way of establishing the pre-emption right.
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The impact assessment of transposing Directive 2008/99/EC on the protection of the environment through criminal law into the domestic laws of the 28 Member States of EU and of the related experiences legitimately raises the question: is the expansion of harmonization or the promotion of new instruments of application required for the achievement of the pursued objective in the future? This study is the answer offered by its signatory within The Second AIDP World Conference held in Bucharest, in the period 18–20 May 2016. The article establishes, in essence, the necessity to continue the efforts in this matter, on the one hand, by adequate measures of simplification and harmonization of the relevant regulations within the national laws, and, on the other hand, by continuing the concerns of consolidation, at EU level, of imposing the uniformisation and adoption of the instruments of protection of the environment through the criminal law. -
Our paper suggests exploitation of interrogations such as rationality is a concept: primitive, as is customary? tautological, „is what we all know it”? monolithic, homogeneous substance? immutable, not counting history, man, practice and does not support self-critical approach? operational tool to be opposed to uncertainty assessment values? mystifying, justifying postfactum a social action animated by various motives? illusory, utopian even, because every time intelligibility is surpassed by reality? The conclusions of our research reveals that juridical rationality should not ignore the experience of rationality but no specific legal phenomenon. It is multidimensional and confirms its status only if it is based on logic and the history and practice of integrated social experience, procurement of modern science, gives satisfaction to the human condition this historic time, does not ignore the contradictions within juridical life, aspiration for interrogation, foresight and creativity.
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In the case law of the Strasbourg Court, in the cases in which Romania has been convicted for the use of undercover investigators, it has been retained the violation of the right to a fair trial, not by the importance given to the statements of the investigators, the protected witnesses or collaborators, but by the omission of the judge examining the merits to take actual steps to hear them in the trial phase. These obligations, which are directly applicable in the Romanian law system, are established, on the one hand, so that the defendant and any other party can address questions to the witnesses, debate and contest their allegations, and, on the other hand, so that the judge can hear directly the depositions of the investigators or collaborators. Despite these clear and common-sense rules arising from the mandatory case law of the European Court, the current Criminal Procedure Code has provided, in Article 103 (3), that the statements of the investigators, collaborators and protected witnesses can not contribute decisively to proving crimes, thus the interdiction is valid whether they have been heard or not by the law court.
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Medical malpractice is a subject that lately generates more and more and increasingly heated controversies. On the one hand, the patients are more and more dissatisfied with the medical services and the way they are cared for, the conditions existing in the hospital units, the quality itself of the medical act, and on the other hand, the doctors, besides the fact that they carry on their activity in poor conditions, in underfunded and understaffed hospital units, feel more and more harassed and fear that they can at any time be brought before the prosecutors as possible „criminals”. Within this article we intend to approach a quite delicate topic, namely the settlement of malpractice conflicts. Why is this a difficult problem? Why malpractice conflicts are more „delicate”? Why is it harder to solve such a conflict, as compared to a different kind of conflict? The answer is simple and widely accepted. The doctor-patient relationship is a special one. The doctorpatient relationship involves more than rights and obligations and the exercise thereof. This paper aims to draw attention and highlight the benefits of the settlement of the malpractice conflicts by using alternative methods. The results of the study can be used in the future both as a source for a possible future expansion of this study, but also as a starting point for a possible de lege ferenda amendment of the current legislation.
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The author discusses the close correlation between the regulation of competition and the regulation on the protection of the consumers’ interests, involving some difficulties in distinguishing between them. That is why there is the tendency that some regulations protect both the ensuring of competition and the consumers’ interests, this ambivalence emphasizing the importance that is given in the contemporary society to the consumption law, which justifies a whole series of derogations from the principle of freedom of trade. Discussing this issue involves an examination of both the regulation of the contractual obligations and the regulation of the commercial practices. The consumer who wants to purchase a product usually has a double handicap: knows too little the characteristics of the product that is being offered and, as such, is often in the position to sign a previously elaborated contract which he can not control or understand. So it was necessary the intervention of the legislator, imposing the obligation to inform every consumer, being prohibited to stipulate unfair terms. As far as the regulation of the commercial practices is concerned, the same conclusion is drawn, namely that a consumer is exposed to a double risk: that of being deceived about the nature or the characteristics of the goods which it acquires, as well as that of being incited, by fictitious or illusory promises, to buy or to resort to the supply of a service. Consequently, the legislator has stepped in by elaborating regulations both in relation to the illegal commercial practices and with regard to the commercial publicity. The author of this article presents all these aspects having in view the scale of the legal situations that can arise and the required solutions.
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The supremacy of the Constitution has as main consequence the compliance of the entire law with the constitutional rules. Guaranteeing the respect for this principle, being essential for the state of law, is primarily an attribute of the Constitutional Court, but also an obligation of the legislature to receive through the normative acts adopted, in content and form, the constitutional rules. The entry into force of the new criminal codes has generated a significant case law of the Constitutional Court concerning the verification of constitutionality of some regulations of the Criminal Code and of the Criminal Procedure Code. Through this study we intend to analyze the following more important aspects: a) how the constitutional principles and values have been materialized in some criminal rules and criminal processual rules of the new codes; b) the effects of the decisions of the Constitutional Court in the process of constitutionalisation of the criminal law; c) applying the decisions of the Constitutional Court in the judicial activity, especially those which have established the unconstitutionality of some regulations in the new criminal codes.
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In this article, the author intends to analyze, by comparison, the terms domicile and residence, as they are used by the constituent legislator in Article 27 of the Constitution, as well as by the Civil Code and the Criminal Code in force. The author points out that the terms of domicile and residence, used in the civil legislation as attributes of identification of the natural person, are different from those covered by the doctrine of criminal law and by that of constitutional law, in the light of the protection of the inviolability of the home of a person, as a legal instrument for the respect of the freedom and private life of persons. The author demonstrates that the purpose of establishing the inviolability of the domicile by constitutional rule is to ensure the respect for the private life of individuals. Particular attention is given to the problems of constitutionalisation of the inviolability of the domicile, as well as of the European protection of the right of every person to the inviolability of their own homes. The author also presents the constitutional guarantees of the inviolability of the domicile and of the residence and how they are materialized by the criminal procedure rules.
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The judicial practice in the matter of representation, including in that of the Supreme Court, reveals difficulties in interpreting Article 84 (1) of the Civil Procedure Code. A poor interpretation thereof, by ignoring ratio legis, creates a gap for the illegal practice of the specialized legal professions. In the same context, it is necessary to distinguish between the plea of lack of evidence of the quality of representative and that of illegal representation, and the latter must be preceded by the plea on the nullity of the contract from which the judicial mandate arises.
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The author analyzes the territorial jurisdiction of the court to settle the actions for annulment of the decisions of invalidation or for amendment of the settlement decisions issued by the National Commission for Real Estate Settlement pursuant to the Law No 165/2013, appreciating that it lies with the civil section of the Bucharest Tribunal, as the court in whose district it is located the headquarters of the entity issuing the contested act. The term „entity” within Article 35 (1) must be understood in relation to the provisions of Article 3 points 4 and 5 of the Law No 165/2013, which enumerates the entities involved in the restitution procedure in various stages thereof, as well as the document issued by these entities.
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The New Fiscal Procedure Code introduces a novelty, the penalty for non-declaring. This penalty is a specific sanction that amerces a certain behaviour of a taxpayer consisting in non-declaring or wrongfully declaring main tax obligations. The penalty has a significant practical impact in case of both administrative irregularity and criminal irregularity. The nature of this penalty, the legal conditions of occurrence and the procedure of infliction cause some interrogations including an eventual exam of constitutionality.
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In this study, the author analyzes the practical implications of the amendments brought to the Civil Procedure Code by the Government Emergency Ordinance No 1/2016, following the admission of the plea of unconstitutionality of the provisions of Article 666 of the Civil Procedure Code by the Decision of the Constitutional Court No 895/2015. After a brief historical presentation of the legislative events that have led to the current situation regarding the approval of enforcement, the author, by examining the effects of the Decision of the Constitutional Court No 895/2015 and of the Government Emergency Ordinance No 1/2016, identifies the categories of situations that may arise in the practice of enforcement.
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In this study the author, after making certain considerations on the concepts of human rights and world order, in the context of globalization, as well as of the trends of globalization of law, points out to the necessity to undertake some urgent actions in order to proclaim, establish and, mostly, guarantee the human rights and fundamental freedoms worldwide. In the author’s opinion these legal rules which have the consent of all States would represent, along with solving the contradictions between the international economic system with a quasi-global organization and the prevailing political structure of the human society which is at state level, a starting point in achieving a real world order, in compliance with the current stage of the socio-historical movement and with the challenges of the 21st century.
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On 1 April 2016 there were celebrated 150 years since, by Decree of the Princely Lieutenancy, it had been approved the Regulation for establishing the Romanian Literary Society, with the special mission to determine the spelling, to elaborate the Romanian grammar and to start and develop the Romanian dictionary, thus representing „the act of birth” of the national academic institution. Transformed in 1867 into the Romanian Academic Society, it opened its area of concerns, along with literature and philology, to history and natural sciences, following that, by the Law of 1879, it would acquire legal personality and become „national institute” under the name of Romanian Academy. Over a century and a half of uninterrupted activity, the Academy was the major factor of enforcement of the Romanian spiritual unity, „the vital centre” of irradiation and promotion of the national science and culture. In this context, the law has been and still is at the same time foundation, form of culture, field of scientific knowledge, value of expression of the academic concerns, and the jurists, some of its most devoted promoters. Under the terms of transformation of the university into a setting almost exclusively for transmitting knowledge and skills of training of future professionals of law, the only forum for conducting the fundamental legal research and for the development of the science of law remains the Legal Research Institute of the Romanian Academy. In order to play such a role it must redefine its mission and re-establish its priorities, so as to provide the proper setting for the legal reflection and for the achievement of theoretical projects that should lead to the crystallization of the new Romanian doctrine of the law. -
International agreements constitute a category of legal acts within the European Union (EU). They are concluded by the EU acting alone or jointly with Member States depending on the provisions of the founding Treaties. With the entry into force of the Treaty of Lisbon, the European Union (EU) acquired legal personality. It is therefore a subject of international law which is capable of negotiating and concluding international agreements on its own behalf. The external competences of the EU are defined in Article 216 of the Treaty on the Functioning of the EU. The division of competences between the EU and Member States is also expressed at international level. The current division of competences between the EU and Member States is not set in stone. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the Treaties.
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In the practice it was questioned the possibility of the public prosecutor from a public prosecutor’s office higher in hierarchy to take over cases from a public prosecutor’s office lower in hierarchy where the criminal prosecution has ended, following that the public prosecutor from the public prosecutor’s office higher in hierarchy settles the case by indictment. In an opinion this procedure has been appreciated as being fair, in another opinion it has been appreciated that there have been violated the rights of the defendant to a fair trial.
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Constitutional case law has got an important influence over the normative regulations and the legal system in general, due to the multitude of ways in which the Constitutional Court can intervene in order to modulate and harmonize legal provisions and the authorities’ actions with the rules and principles enshrined in the Basic Law. The risk of sanctioning the disregarding the constitutional exigencies, either in terms of formal conditions or in what concerns the fund rules, is a factor of accountability of the legislature. Therefore, the role the constitutional review plays in increasing the quality of laws and its positive effects on the lawmaking process should reinforce the importance of the Constitutional Court in the institutional state’s architecture.
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The article analyzes the material jurisdiction to settle the action for liability of the mayor for the prejudice caused to the state budget in the exercise of his mandate by the deficient fulfilment of the duties devolving on him, a prejudice established by the Court of Auditors by its act of control. In the absence of a derogatory regulation concerning jurisdiction, such an action, being governed by the rules and principles of the tort civil liability regulated by Article 1349 of the Civil Code, falls under the material jurisdiction of the court or of the tribunal, depending on the value of the object of the dispute (of the quantum of the damage requested to be repaired), according to Article 95 point 1 in relation to Article 94 point 1 k) of the Civil Procedure Code.
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This study aims to identify the arguments for which, in the current legislative context, it is not admissible to order the sending of the case for retrial by the judgment pronounced on the application for annulment. The application for annulment, as a legal remedy, is regulated within the procedure of payment order.
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The anticipated legal capacity of the minor represents, together with the situation of the married minor, one of the exceptions of acquiring full legal capacity at the age of 18, expressly provided in Article 40 of the new Civil Code. Thus, for acquiring the „emancipation”, the minor can address the law court himself, by way of the non-contentious procedure, and with regard to the „reasonable grounds”, the legislator has not made an enumeration or an exemplification thereof, these remaining at the discretion of the guardianship courts. Given the implications which the measure of emancipation of the minor could have on himself and on others, this must be seen as an exceptional one, and although there is still no case law on the application of Article 40 of the Civil Code, de lege ferenda, the possibility to revert to the recognition of the anticipated legal capacity by the guardianship court would be, to the same extent, an appropriate measure of the higher interest of the minor.
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This paper is mainly a semantic analysis of the definition of the offence of child pornography, included in Article 374 of the Criminal Code. It emphasizes the merits and the shortcomings of the current definition, as well as some solutions intended to remedy this definition.
