-
The official proclamation of the climate emergency (at an international, European, and national level) has stimulated the concerns and efforts to regulate and adopt public policies aiming for mitigation of, and adaptation to climate change. Initiated in the name of the principle of precaution – scientific uncertainty regarding the anthropic causes do not justify the inconsideration of the phenomenon, but they impose taking progressive and proportional measures – 30 years ago, the process of development of climate law has already known three successive and progressive stages, configured around three major international acts. The Framework Convention on climate change (1992) has generated a general normativity, as a guideline and non-binding; the additional Kyoto Protocol (1997), with a superior legal force, provided precise targets and determinate periods of time to reach them; finally, the Paris Agreement (2015) has marked the phase of voluntary commitments and of adequate instruments, varied in their means of enforcing. Characterized by a dependency and a major interconnection with scientific data, climate law is inspired by a series of fundamental concepts (general interest of humanity, environmental transition, the rights of future generations, global approach), and it is dominated by a series of general principles (precaution, common but differentiated responsibility, the right to a stable climate), affirming itself as a law of the present day, but especially of the future. Assuming the Green Deal as a new strategy for growth of the EU (2019), of the law for climate (2020) and the return of the USA to the Paris Agreement (2021) re-launch the multi-lateral framework for negotiation and international regulation in this field, opening ample perspective for affirmation of the new legal regime and the innovative scientific field. -
The present study begins with the analysis of the texts of Article 630 of the Civil Code, where there can be found the legal relevant provisions, followed by some considerations regarding the origin of the civil liability for the abnormal neighbourhood inconveniences under the influence of the old Civil Code. Furthermore, the author appreciates that, at present, from the economy of the texts of Article 630 of the Civil Code, it results that the civil liability in question is of two types: reparative and preventive. Further on the scope of this liability is circumscribed. For this purpose, on the one hand, it is established the sphere of the persons between whom it can be engaged, and, on the other hand, there are determined and qualified the neighbourhood inconveniences that can generate it. An important and ample space is conferred to the analysis of the conditions that must be met for the existence of this liability, as well as to the detection of its theoretical foundation. Thus, in the reparative variant, the existence and the engagement of civil liability requires to cumulatively meet three conditions; two of them are the general conditions of any reparative civil liability – damage and relation of causality – and a special or particular one, which is the abnormal neighbourhood inconvenience caused to the victim, directly or indirectly, personally or by another, by the owner or owners of one of the neighbouring buildings. Therefore, it can be easily established that the fault or guilt, proven or presumed, of the neighbouring owner or of other persons, who exercise the attributes of the property right, over or beyond its normal limits, is not a necessary condition of engaging this reparative civil liability. Consequently, the problem of the theoretical foundation of liability is also solved legislatively, in the sense that we are in the presence of an objective civil liability, without the guilt of the liable person or of other persons, according to Article 630 (1) of the Civil Code.
-
An attack on a moral right must attain a certain level of seriousness in order to attract the application of a sanction. When the exercise of a moral right, freedom of expression especially, interfere with the exercise of some other moral rights, in order to determine if the right was exercised with intention to harm or excessive and unreasonable, a fair balance exercise between two values which may come into conflict must be carried out under the proportionality test: if there is a public or private interest to justify the attain to the moral right of another person. In these cases, harmful events can occur even without author guilt. The application of national provisions which protects specific moral rights should not be used solely to determine whether or not there is a violation of the rights of personality, to determine whether or not the conditions of general tort law are fulfilled. The new national provisions can be useful to determine the proportionality of the sanction, and even for establishing non-material remedies when the specific conditions of general tort law are not fulfilled. There is a relationship of complementarity, maybe even subsidiarity between general tort law and the specific remedies of civil moral rights stipulated in the Civil Code. Conceptualizing moral rights regime by enactment of statutory moral rights as „civil subjective rights” with specific remedies aims to achieve a better moral rights protection. Essentially general tort law does not deny specific protection concided by personality moral rights.
-
Undoubtedly, the most frequent contract used in practice is the sale and purchase contract, through which the alienation and acquisition of the property right and of other real rights is achieved, outlining the essential instrument through which the legal circulation of goods is carried out. The consent gives expression and materialization to the free will of the individual to contract and pre-contract, to assume a series of rights and obligations, to enter into legal relations. In this context, encountered with a special frequency in the current socio-economic reality – the preparatory agreements, as anticipatory manifestations of the consent in the matter of the sale and purchase contract, involve the same rigour of the conditions necessary for the valid existence of the consent. In all cases, what brings all these legal figures together into the patterns of a single legal institution is the main purpose pursued by the parties or at least by one of them, the one to enter, in the future, into a contractual legal relationship that gives full sati sfaction to the interest shown. As a consequence, the expression of the agreement of will determined by consent has known a double externalization, first through the previous form – the pre-contract – and subsequently through the contract itself. These two different moments, the period between them and the way in which they are legally related reflect some particularities and issues worth to be analysed in the broad spectrum of legal relations between persons.
-
The new Civil Procedure Code, under the impulse of the case law of the European Court of Human Rights, has established for the first time, in the Romanian law, a procedural means intended to be an effective remedy for unjustified tendencies to delay trials: the contestation regarding the delay of the trial. The present approach was occasioned by a recent decision of unconstitutionality regarding the application of the provisions of Article 524 (3) of the Civil Procedure Code. In the introduction of this study, the author makes a general delimitation of the contestation by other procedural means, stating that it can be qualified neither as means of appeal, nor as a civil action or as a special procedure. The author emphasizes the contestation’s nature of procedural incident and of means to remove any obstruction in the settlement of civil cases in an optimal and predictable time limit. The control of constitutionality carried out by the Court concerns a very concrete aspect of the competence to settle the contestation. Through the analyzed decision, the court of constitutional control has appreciated that the settlement of the contestation by the panel notified with the settlement of the main action is likely to affect the objective impartiality of the court. In the present approach, the author considers such an action of the court of constitutional control as being judicious, but expresses reservations regarding the solution of attributing the competence to settle the contestation to the higher court. In justifying this point of view, the author notes also the existence of other similar procedural means the settlement of which is given, however, in the competence of a panel of the court empowered to judge the main action as well. On the other hand, the settlement of the contestation by the superior court is not likely to provide celerity in its settlement.
-
The study analyzes the way in which the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of the law ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the court of first instance or of the court of appeal that was not challenged with a main appeal or review. In the opinion of the supreme court, it was considered that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code are not conditional on the filing of the incidental appeal/review or of the one provoked by the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to annul the judgment challenged under any aspect that is of interest to the respondent declaring an incidental or provoked appeal/review. The main argument for adopting this interpretation is the premise of regulating the incidental appeal/review.
-
Considered indisputably as a keystone in any constitutional architecture based on respect for the fundamental rights and freedoms, the concept of human dignity presents certain difficulties as regards the effective legal consequences of its enshrinement in the positive law. It can remain a simple object of worship of a purely rhetorical adoration in the constitutional discourse or it can be depreciated, by instrumentalization, in view of some simple or minor objectives. In addition, the role that human dignity plays in the intellectual system of today’s secular civil religion should not be underestimated. This article briefly highlights these issues, with illustrations from the practice of some constitutional courts (the Federal Constitutional Court of Germany and the Constitutional Court of Romania) and from the debates in the specialised literature.
-
The authors criticize the Decision of the High Court of Cassation and Justice No 13/2017 pronounced on appeal in the interest of the law, which had as its object the interpretation and application of the provisions Article 469 (3) of the Criminal Procedure Code which is called the Judgment of the request for reopening the criminal trial. The Constitutional Court decided that the decision of the High Court of Cassation and Justice No 13/2017 violates the right to a fair trial and the right to defence of the person.
-
Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think.
-
Potrivit prevederilor art. 1345 C.civ., „cel care, în mod neimputabil, s-a îmbogățit fără justă cauză în detrimentul altuia este obligat la restituire, în măsura pierderii patrimoniale suferite de cealaltă persoană, dar fără a fi ținut dincolo de limita propriei sale îmbogățiri”
-
Potrivit art. 208 alin. (1) C.pen., fapta celui care, în mod repetat, urmărește, fără drept sau fără un interes legitim, o persoană ori îi supraveghează locuința, locul de muncă sau alte locuri frecventate de către aceasta, cauzându-i astfel o stare de temere, se pedepsește cu închisoare de la 3 la 6 luni sau cu amendă. De asemenea, la alin. (2) al aceluiași articol se prevede că efectuarea de apeluri telefonice sau comunicări prin mijloace de transmitere la distanță, care, prin frecvență sau conținut, îi cauzează o temere unei persoane se pedepsește cu închisoare de la o lună la 3 luni sau cu amendă, dacă fapta nu constituie o infracțiune mai gravă.
-
The present study proposes for analysis some of the implications of the pandemic generated by the SARS-CoV-2 virus in the matter of the property right and not only, following to consider the property right in its broad sense, derived from the ECHR case law in the matter. As concerns the research hypothesis, the author starts from the premise that the inclination towards martyrology manifested throughout the history by our country determines that some particularly restrictive measures be adopted also in the context generated by the Covid-19 pandemic, the most often without a solid theoretical foundation. It is also considered, as a research hypothesis, that there is currently a trend worldwide towards authoritarianism and interventionism from the state government, which is reflected in the measures taken during this period in order to prevent the spread of the respiratory virus.
-
The present analysis is justified by the challenges generated by the regulation of the normative framework of public power intervention in the management of some new social realities, with a direct impact on the state-citizen relations, in the context of the COVID-19 pandemic. Undoubtedly, some measures established by the Law No 136/2020 on the establishment of some measures in the field of public health in situations of epidemiological and biological risk, taken most often with celerity, will be subject to the control of legality of the courts of law. It would be absurd for acts that ultimately affect fundamental rights and freedoms not to be subject to the means of appeal and not to pass through the judge’s filter, the latter being the one who will, actually, decide on the fairness of the measure adopted. At the boundary between the analysis of the legality and the appropriateness of the measures adopted by the competent authorities of the state, the court of law will have to rule so that both the citizen, viewed individually, and the community feel safe in front of a threat that humanity never faced before. From this analytical perspective, the authors intend to address the issue of the possibility to invoke in court the exceptions of illegality in the context of the provisions provided by Article 17 of the Law No 136/2020.
-
This paper analyses judicial limits of property in national legal context, where this kind of property limits are relatively young comparing to the legal limits, which are clearly delimited. The study begins with brief comparative law on similar English, French, and Canadian regulations, continuing by presenting the doctrinal divergence on the foundation of civil liability for abnormal inconveniences of good neighbourhood. The study shows different points of view from doctrine on the fundament of civil liability for causing inconveniences by exceeding the reasonable boundaries of neighbourhood. The paper focuses on differentiating between abuse of right, tortious civil liability and extra-contractual liability, proposing the last one as the fundament of civil liability for causing abnormal inconveniences that bothers the relations of good neighbourhood. Also, it is brought into discussion the meaning of „owner” to which Article 630 of the Civil Code refers, and the implications regarded by giving a restricted meaning to this notion used by the legislator. Still, the French doctrine and the European Court of Human Rights Jurisprudence is orientated to a broad interpretation of this notion.
-
Legal separation („separația de corp”) is a quasi-divorce, which does not lead to the dissolution of the marriage, but produces certain legal consequences on personal and patrimonial relations between spouses. Based on religious motivations, legal separation is the compromising solution adopted in states of Catholic religion, in which marriage is seen as an indissoluble and perpetual bond. Although known in several Member States of the European Union (EU), legal separation has meanings, conditions, procedure and effects that differ from one state to another. In Romanian law, the institution of legal separation is not regulated. The Orthodox religion, predominant in Romania, rejects the dogma of the indissolubility of marriage and allows divorce. However, in the Civil Code, among the provisions of private international law there is a rule indicating the law applicable to legal separation. The use of the notion, which is otherwise singular, is not accompanied by a definition or explanation of the term. In the European regulations (the Regulation Brussels II bis on jurisdiction1 and the Regulation Rome III on the applicable law2 ), directly applicable in Romania, two similar notions are used, those of „separare de drept” (legal separation) and of „separare de corp” (separation of body).
-
Factoring is essentially a hybrid commercial operation that covers the elements of several legal mechanisms, the most common elements being borrowed from the debt assignment mechanism. However, the legislator did not consider it necessary to establish this legal operation in the contracts covered by the new Civil Code. Moreover, factoring does not currently benefit from any express regulation in Romanian law. Although, in the Romanian doctrine, we find references to a possible direct action of the factor against the assigned debtor, the situation of this action is uncertain. In this sense, we considered it opportune, but also necessary to formulate a brief analysis of what the factoring operation means in general, as well as to establish whether or not the factor’s action covers the elements of a direct action. In the Romanian doctrine and legislation we find only fragments of texts regarding the factoring operation, therefore, an exhaustive analysis regarding the application of factoring and even more so of the factor’s action cannot be performed. However, we hope that the brief explanations we will bring will lead to an outline, at least general, of the factor’s action against the assigned debtor.
-
Reflections on the moral and legal status of the animal, its cognitive abilities, its differences, essential or not, with humans, have nourished human thinking since ancient times; source of debate also today are a lot of questions: can we kill animals, we can eat them, we can use them in our activity, both in the field and in laboratories, do animals have rights, are they subjects of law? Ever since Roman law, the animal was considered from legal point of view, considering only the faculty of man’s appropriation as a subject of law; the main status of animal remains that of reification, their interests being most often ignored for the benefit of humans’ interests. This status embraced by doctrine, praised legally throughout the different civilizations and which has lasted until today, could be maintained by virtue of the „natural” power of human domination exercised over the rest of living beings also through the Cartesian animal–machine theory, which was translated into law by the animal–thing theory.
-
The interpretation and the application of the provisions of Article 31 (3) and Article 60 of the Labour Code have led to the existence of a non-unitary judicial practice and to the expression of some divergent positions in the doctrine as regards the applicability of the temporary prohibitions on dismissal in case of termination of the individual labour contract at the initiative of the employer, during or at the end of the period of probation. In a first doctrinal and jurisprudential orientation it is argued that Article 60 of the Labour Code is not applicable, because we are not in the presence of a dismissal, but of a separate case of termination of the individual labour contract at the initiative of the employer. The second opinion argues the thesis according to which the termination of the individual labour contract at the initiative of the employer during or at the end of the period of probation is also a case of dismissal, the legislative derogations aiming only at simplifying the dismissal procedure during the period of probation, and not at removing the temporary prohibitions on dismissal provided by Article 60 of the Labour Code.
-
The article, a continuation of the study with the same title published in the previous issue of „Dreptul” magazine, presents in detail the minority point of view expressed within the civil procedure collective of the Faculty of Law of the West University from Timișoara, according to which the object of the incidental or provoked appeal/review may be the grounds or the solutions contained in the judgment of the court and in the preliminary conclusions, whether they have been challenged or not by means of the main appeal/review
-
The study addresses the issue related to the offence of family abandonment, in the version provided by Article 378 (3) c) of the Criminal Code, which consists in the non-payment, in bad faith, for 3 months, of the support pension established in court. In particular, the aim is to clarify the meaning of the phrase „committing the act”, designated as indicating the moment when the time limit from which the period for filing the preliminary complaint begins to run, as the legislator has chosen to exempt this offence from the principle of compulsoriness of setting in motion the criminal action. The conclusions reached are in the sense that the phrase „committing the act” implies nuances in the matter of continued offence, as it is the one of family abandonment, otherwise the solution being one that would implicitly modify the content of Article 296 of the Criminal Procedure Code.
-
La data de 1 martie 2020, Parchetul de pe lângă Judecătoria X a solicitat a se dispune înlocuirea măsurii preventive a controlului judiciar cu măsura arestării preventive față de inculpat, ca urmare a incidenței în cauză a dispozițiilor art. 215 alin. (7) C.pr.pen
-
În cazul în care, prin contract, întreținerea a fost constituită în favoarea unei terț, această persoană are doar dreptul de a cere executarea contractului, nu și pe acela de a cere rezoluțiunea pentru neîndeplinirea obligațiilor. În lipsa unei prevederi exprese în cuprinsul secțiunii care reglementează contractul de întreținere, sunt pe deplin aplicabile normele de drept comun care reglementează stipulația pentru altul, iar acestea prevăd în mod clar că stipulantul este singurul care poate revoca stipulația [art. 1287 alin. (1) C.civ.], beneficiarul având doar dreptul de a solicita executarea [art. 1284 alin. (2) C.civ.]. (Curtea de Apel Timișoara, Secția I civilă, Decizia nr. 235 din 11 iunie 2020, www.rolii.ro1 )
-
Infracțiunea prevăzută de art. 337 C.pen. are ca situație premisă solicitarea expresă din partea organelor de poliție rutieră adresată conducătorului auto de a se supune prelevării de mostre biologice, în ambele modalități normative, atât în cazul refuzului, cât și în cazul sustragerii conducătorului unui vehicul de a se supune prelevării de mostre biologice necesare în vederea stabilirii alcoolemiei.
-
După ce în urmă cu peste trei decenii prin studiul inițiator (1989)1 urmat de primul curs (1992)2 și apoi de întâiul tratat (1998)3 în materie se afirmă că fondatorul incontestabil al dreptului mediului ca disciplină științifică în România, prin lucrarea pe care o semnalăm și prezentăm prin rândurile de față, profesorul Mircea Duțu, directorul Institutului de Cercetări Juridice „Acad. Andrei Rădulescu” al Academiei Române și președintele Universității Ecologice din București, deschide cu titlu de pionierat absolut calea unui nou domeniu al reflecției juridice: dreptul climei; și de această dată, după ce acum un an anunța, printr-un inspirat și documentat studiu4 , asemenea evoluții rapide și complexe, iată că s-a ajuns la un reprezentativ volum de idei și analize asupra regimului juridic al acțiunii globale de combatere și atenuare a încălzirii globale și adaptării la efectele schimbărilor climatice.
-
The study analyzes the two procedural moments of judging the requests for revision, traditional in our law – the admissibility in principle and the retrial –, by referring, mainly, to the new amendments to the Criminal Procedure Code and to the jurisprudential solutions. There are taken into account the measures that can be taken at the same time with or after the admission in principle and the solutions that will be given in the retrial of the case. Whereas a substantial change in the matter of revision, following the entry into force of the new Criminal Procedure Code, concerns the exclusive revision of the civil side of the criminal trial, respectively the division of the material competence between the criminal court and the civil court, a section is devoted to this issue. Whereas the new provisions are quite elliptical in this matter, the paper tries to identify aspects that may raise problems of application and to suggest solutions.
-
The labour law – a branch and science of the Romanian law system – has come a long way to the present days, when it fully manifests its specificity and autonomy that characterizes it. The doctrine evokes a „labour contract” concluded according to rules of the Roman law. In the Middle Ages, the Romanian principalities did not know regulations regarding legal labour relations. It was only in the Civil Code of 1864 that there were established specific regulations of some civil contracts which included some elements of some labour relations. The appearance and development of the industry determined, at the end of the 19th century and the beginning of the 20th century, the adoption of some legal norms aimed at the protection of workers. The labour legislation was invigorated due to the rules of the International Labour Organization, established in 1919. Our country, as a founding member, has ratified the essential conventions of this organization in the interwar period, but also later, to the present days. About a labour law, distinct, autonomous in Romania, one can speak only after the entry into force of the Labour Code of 1950. The development of the Romanian society, its economic and social level have also determined the evolution of the labour legislation and of the labour law, as it will be shown in the elaborated study.
-
Procesul lui Iisus, poate cel mai cunoscut proces din istoria umanității, este și cea mai vădită eroare judiciară a tuturor timpurilor. „Prototipul însuși al condamnatului nevinovat”1 generează din această perspectivă o temă de analiză aprofundată și dezbatere atât pentru teologi, istorici sau analiști ai fenomenului religios, cât și pentru juriștii preocupați de identificarea greșelilor procedurale săvârșite pe parcursul celebrului proces. Format și educat într-o familie cu profunde valori creștine, imaginea răstignirii lui Iisus m-a marcat, m-a impresionat și mi-a stârnit nenumărate emoții și motive de meditații. Cu toate acestea, până la întâlnirea cu lumea dreptului, nu m-am gândit că întregul proces de condamnare a celui mai cunoscut nevinovat al istoriei poate fi analizat și din perspectiva juridică. Din aceste considerente, prezentul editorial își propune să abordeze procesul lui Iisus, prezentând elemente și date ce descriu locul și data desfășurării, personajele implicate și resursele biblice sau extrabiblice utilizate
-
The legal regime of the notarial act in the legislation of the Republic of Moldova and in that of Romania is a relatively new topic, particularly up-to-date, complex and extremely tempting through the problems that need to be solved. This subject is distinguished by the controversies it generates, but also by the diversity of the practical solutions that can be identified. The development of the commercial activities and the extension of the access to the markets for sales of goods requires an in-depth research on the legal nature of the civil act in general and of the notarial act in particular, by forwarding some proposals for improving the normative basis, in the interest of strengthening the constitutional regime and the civil circuit. In the Republic of Moldova there is a long process of formation and consolidation of the notarial legislation. In the absence of a well-developed normative framework, the notaries public in the Republic of Moldova apply, sometimes, the rules for carrying out notarial acts inherited ever since the period of the Soviet Union. Another situation exists in Romania, whereas the legislator, by the Law No 36/1995, has established a stable normative framework for regulating the notarial law relations.
-
The study analyzes the initial version of the first sentence of Article 426 (5) of the Civil Procedure Code, according to which the judgment had to be drafted within maximum 30 days from the date of pronouncement. In the author’s opinion, such a time limit ensured the achievement of one of the fundamental principles of the civil trial, respectively, the right to a fair trial, in an optimal and predictable time limit, as provided by Article 6 (1) of the Civil Procedure Code. In the version of the Law No 310/2018, the first sentence of Article 426 (5) of the Civil Procedure Code was amended, in the sense of granting the possibility to extend the drafting time limit, over the initial one of 30 days from the date of pronouncement. Thus, for well-grounded reasons, this time limit may be extended by 30 days, at most twice. In the author’s opinion, the total current time limit of 90 days for drafting the judgment is not able to ensure a reasonable time limit for the completion of the trial and should return to the version existing prior to the amendment by the Law No 310/2018, respectively, the time limit of no more than 30 days from the date of pronouncement.
-
The recordings made by technical means have not constituted, at least in civil matters, ever since the appearance of the devices that made them possible, an admissible evidence, not being regulated as such by the legislator in the past. In the new regulations, starting with the Law No 217/2003, including in the new Civil Procedure Code, in the conditions of the extended use of electronic means, both in the institutional framework and in the private life, the daily realities have imposed the use of the recordings with technical means as evidence. However, by operating a generalization, the possibility that the data of any kind to be fixed on a computer-based media has led to the penetration of this kind of probation both in the evidence with written documents, in the form of computer-based written documents, and in that of material means of evidence. The inclusion of the recordings, generically speaking, also in the category of material means of evidence generates problems both in terms of identifying their legal nature, with implications on their administration and storage regime, and in terms of establishing their admissibility conditions. The latter also raise the question of establishing the extent of the probationary area related thereto, respectively whether it should be restricted only to proving those legal relations which the facts of legal relevance involve, as well as which categories among these fall within the scope of circumstances likely to be proved in this way.
-
The perception and consideration of global warming and of its consequences as an „existential crisis” and the official proclamation – at the level of more and more states, of EU and within UNO – of the climate emergency confer the character of major priority of the entire humanity to the concerns aimed at mitigating the phenomenon, at limiting and adapting to its effects. The control of the anthropic impact on the climate system and the effort to maintain its stability have involved the intervention of law in various forms and different measures – public policies, constitutional provisions, pertinent legislative provisions and relevant international treaties –, with legal force of soft law or of firm normativity, within a world-wide governance, particularized regionally and nationally. An increasingly significant aspect of this process becomes the consideration of the impact of climate change on human rights and the relevant legal reaction of development of some appropriate meanings, with structuring trends in the form of a new dimension, specific to the right to a protected, healthy and ecologically balanced environment, the right to a stable climate and proper to the maintaining of the planetary ecological balance, to preserving the condition of the human species and favourable to the perpetuation of the civilization created by it. Initiated by the doctrine, the idea was acquired and knows the first resonances in the case law, with more and more firm and adequate echoes at regulatory level, finding ourselves at the moment of identifying and promoting the appropriate solutions and the adequate ways to achieve that goal. The new fundamental (human) right, individual and collective, of the present generations and especially of the future generations, protecting their possibility to adapt to the pace and amplitude of climate change, is foreshadowed as an indestructible component of the system of environmental rights, asserted in the last half century, quasi-universally recognized – constitutionally, legislatively and internationally – and who know their own dynamics.
-
The present paper aims to bring to your attention the Decision No 9 of 6 April 2020 of the High Court of Cassation and Justice – Panel for the settlement of some matters of law that took into account the legal nature of the revenues collected at the Environmental Fund in order to determine whether the acts of theft in any way from the establishment of these fiscal burdens may fall under the provisions of the Law No 241/2005 for preventing and combating tax evasion. The mentioned decision established that the revenues of the Environment Fund that give rise to tax receivables are not fiscal receivables that may fall under the law to prevent and combat tax evasion, which can be considered wrong. The study presents all the legal arguments for which the interpretation given by the High Court of Cassation and Justice is wrong and, at the same time, harmful, considering the possible legal effects that this decision may have on all tax regulations in Romania.
-
The present study analyses from the point of view of the jurisprudence of the European Court of Human Rights (ECHR) a topic of current interest in the Romanian law, namely the topic of the legality of evidence as a link between the rule of law and the right to a fair trial. By corroborating general principles and individual solutions emerges a differentiation mechanism used by the ECHR in order to distinguish between possible breaches of the domestic law in respect to their nature and degree. While in principle the way the law is interpreted and the breach of law allegedly committed in obtaining and presenting the evidence are by themselves irrelevant from the perspective of the fair trial, the arbitrary or manifestly unreasonable interpretation of the law, which violates the principles of the rule of law, is relevant from that perspective. A serious breach of law can mean the inadmissibility of the evidence obtained thereby. The ECHR doesn’t lay down general rules regarding the assessment of the arbitrary or manifestly unreasonable character of the interpretation of the law and, respectively, the seriousness of its breach, but from the case-law emerges a series of relevant criteria, such as the manifest error of assessment, the breach of law committed in bad faith or systematically, inevitable discovery of evidence and the purpose of law.
-
This article underpins the normative framework given to judicial bodies competent to make investigations into marine navigation in Romania, according to the provisions of the Romanian criminal law, followed by a brief history of the establishing and dissolving of the courts in Romania regarding maritime and river matters, and examination of the normative framework given to the competencies of the Court of justice on investigations into marine navigation, and finally this article is drawing some conclusions and implications related to lex ferenda.
-
The article deals with the issue of inappropriate conditions of detention in the Romanian penitentiary system and the available internal means of appeal. The objectives of the article consist in determining the content of the notion of conditions of detention, the deficiencies of which led to the violation of Article 3 of the ECHR/Convention, the analysis of the applicable internal remedies and of the relation between these from the perspective of obtaining monetary compensation for inappropriate conditions of detention, and the establishing of the effects of the state of necessity on the State’s obligation to ensure appropriate conditions of detention
-
Donația poate privi nu doar un bun determinat în materialitatea sa, ci și o universalitate de bunuri prezente și viitoare, precum și o fracție determinată ori determinabilă din patrimoniul donatorului. Prin urmare, contractul de donație era perfect valabil între părți, producând efecte juridice erga omnes (prin formalitățile de publicitate realizate în acord cu art. 58 din Legea nr. 7/1996, în forma inițială, câtă vreme pentru terenul pentru care se emisese titlul de proprietate conform Legii nr. 18/1991 nu exista carte funciară deschisă, ci doar mențiune în registrul de transcripțiuni). Faptul că donatarul a dispus asupra cotei sale determinate din terenul care urma a fi supus procedurii de ieșire din indiviziune nu invalidează liberalitatea, fiind în mod evident că odată cu partajul – convențional sau judiciar – cota parte dobândea doar atributele de materializare fizică (existența ei fiind însă certă de la momentul nașterii stării de indiviziune).
