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The issue of fighting corruption has been and still is a constant concern of the Romanian and foreign legal doctrine, as „corruption” takes various forms of manifestation punishable by criminal law as separate crimes. From this perspective, the author considers it useful to see the evolution of criminal law on fighting corruption in our country, by comparing the crime of corruption in the current criminal law with those regulated in the new Criminal Code. The article also emphasizes on the crime of buying influence, as a specific means of corruption crimes. -
In this study, the authors are analyzing the protection of the confidentiality of the attorney-client relationship in the European competition law, on the one hand, from the perspective of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms and of the jurisprudence of the European Court of Human Rights, and, on the other hand, from the perspective of the Court of Justice of the European Union and of the union regulations in the field. The authors are also referring to the Romanian legislation in the field, as well as to the latest trends in the doctrine and jurisprudence regarding the tackled issue. -
The article briefly analysis a series of implications of transparency principle in public procurement. Firstly, the article highlights a legal loophole determined by the absence of a legal definition of this principle in the main internal enactment. The practical applicability of this principle is shown both at the regulation level and the case law. To sum up, the transparency principle imposes drafting all the relevant information for an award procedure in a precise, clear and unequivocally manner and communication of the said information to all third parties. Transparency creates the premises of equality of treatment between bidders and subsequently allows an accurate verification of compliance with the said rules. -
Principiul Separațiunii Puterilor Statului, care a avut o influență considerabilă în viața și organizarea constituțională a tuturor Statelor moderne, și-a avut și el – ca și oricare alt așezământ omenesc – viața și destinul lui.
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Unele considerații asupra separării puterilor în stat. În literatura de specialitate se acceptă că doctrina separării puterilor în stat s-a dezvoltat în secole întregi de evoluție politică și filosofică1. Originea sa poate fi identificată în secolul al IV-lea î.H., când Aristotel, în tratatul său intitulat „Politici”, a descris trei agenții ale formei de guvernare: adunarea generală, funcționarii publici și autoritatea judiciară. Și în Republica Roma exista un sistem asemănător bazat pe adunarea generală, senat și oficialii publici, toate funcționând pe baza principiului „verifică și echilibrează” (checks and balances). După căderea Imperiului Roman, Europa a devenit fragmentată în state-națiuni și de la sfârșitul Evului Mediu până în secolul al XVIII-lea structurile de guvernare au constat în forme de concentrare a puterii, determinată de rațiuni ereditare. Singura excepție a perioadei este considerată dezvoltarea Parlamentului Englez (Parlamentul) în secolul al XVII-lea2. -
Înscrierile în cartea funciară nu au caracter constitutiv/translativ, ci numai efecte de opozabilitate față de terți (art. 25 din Legea nr. 7/1996 arată că „înscrierile în cartea funciară își vor produce efecte de opozabilitate față de terți...”). Astfel, această lege asigură publicitatea imobilului și nu are efecte constitutive/translative ale dreptului de proprietate. (...)
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The principle of opportunity is applied in all criminal legislations, although some leave it unmentioned and others expressly establish it. The author analyses the evolution of this principle, starting from the former criminal legislation to the criminal legislation in force, pointing out the advantages of the new regulation. -
The national legislation on social security provides for different standard retirement ages for women and men, and this aspect does not contravene the principle of non-discrimination on the basis of sex in social security matters, enshrined in Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, nor the principle of equality of citizens, enshrined in Article 16 of the Romanian Constitution. However, failure to apply the more favourable age conditions, laid down for women, to people who have changed their gender identity from woman to man may give rise to discrimination on the grounds of sex. The rationale for maintaining different standard retirement ages is based on the socio-professional disadvantages of women in Romania in relation to men, so that being a woman during their working lives justifies the application of a lower retirement age, regardless of whether at the time of retirement, following the change of gender identity, the beneficiary of the pension is a man, and not a woman. As national law does not regulate this issue, it is for the national courts to interpret social security legislation in accordance with the principle of non-discrimination on grounds of sex. The existence of different standard retirement ages for women and men does not automatically lead to the de jure termination of employment relationships as a result of retirement at different ages, as Article 56 of the Labour Code regulates the possibility of termination of employment relationships, for both sexes, at the same age. Nor does the change in gender identity give rise to different treatment, on the basis of sex, on the date of the termination of employment relationships as a result of the fulfilment of retirement conditions. -
This doctoral research investigates the case law development of the principle of loyalty within the framework of the invisible constitution theory. Uncodified counterpart of written constitutional rules, the invisible constitution belongs to a broader understanding of the concept, specifically the constitution in its material sense. Contemporary examples are found within the British constitutional order (e.g. constitutional conventions and case law), the French bloc de constitutionnalité (i.e. complementary unwritten rules) and the case law of the Hungarian Constitutional Court (i.e. the Sólyom model). Assuming a national invisible constitution exists, the paper aims to demonstrate that the principle of loyal cooperation belongs to such an invisible dimension of the Romanian constitutional order.
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In this article, the author aims to analyze the theoretical foundations of two essential principles for the state of law and how to balance the relations between the three powers: the principle of constitutional loyalty and the principle of loyal institutional collaboration between the public authorities vested with the governing powers. The two principles are not formally provided in the text of the Constitution, but can be deduced by way of interpretation from other constitutional principles. As for the first principle, the author shows that it has its source in the obligation freely assumed by each member of a community of individuals organized according to the principles of social hierarchy, or imposed by the public authority with supreme force in the community, to respect a summum of legal norms, whose purpose consists in the regulation and harmonization of the social relations. The origin of the second principle is found in the principle of separation of the three powers in the state, which in the governing process are obliged to collaborate loyally with each other, within the institutional framework prescribed by the constitutional norm. In the end, the author concludes that the substance of the principle of constitutional loyalty includes not only the general obligation of citizens and of both public authorities and institutions to respect the will of the Constituent Legislator formally expressed in the text of the Constitution, but also the obligation of the STATE and of each public authority provided in the Constitution, to be loyal to the CITIZEN. Otherwise, the relations between the state and the citizen are compromised, or will take the form and content of totalitarian-type relations, in which the individual is deprived of rights and absorbed by the state as a dehumanized form of life. The author considers that the loyalty of the state towards the citizen is an obligation of constitutional rank and, on this basis, he proposes, de lege ferenda, its express inclusion in the text of the Constitution at a future revision thereof. -
Article 5 of the Civil Procedure Code1 regulates the fundamental principle of free access to justice and the obligations that the legislator establishes as duty of the judge are meant to outline this principle2 . Free access to justice is a fundamental principle of the organization of any democratic judicial system, being enshrined in an important number of international documents, therefore it has special meanings both for procedural law and for the constitutional law3 .
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The European Union law principles can be source of Community law, as they have the same rank as the treaties in the hierarchy of the EU law sources. These principles are compulsory both for the EU institutions and the Member States. These binding principles include the principle of legality of indictment and punishment. Therefore, whenever a Community act requires Member States to establish punishments to be used in the event an offense provided for in that act, they must comply with. There are also some exceptions to this rule (the compulsoriness for the European Union Member States): the criminal liability of the person who committed the offense cannot be determined nor can be aggravated by breaching the Community act independently of a domestic law adopted by a Member State in view of its implementation. In this study, the authors analyze the exceptions to the principle of legality of indictment and punishment, which have a particular interest in criminal matters, given the contradictions in the Romanian and foreign criminal doctrine.
