-
-
The new Civil Code achieves in art. 1730-1740 a general-rule regulation of both legal and conventional preemption right, regulation applicable wherever the law or the contract do not stipulate otherwise. The conventional preemption right is recognized and regulated under the name of preemption right established by contract; it is nothing but a preference pact in the matter of the sales Contract. Considering that, regardless of the legal or conventional nature of the preemption right, is not normal to have two different systems that penalize violations in the beneficiary’s purchasing priority, the mechanism operating in case of preemption was governed unitary, the freedom of contract left to preemption’s promisor and this freedom overcome consequences being outlined. Whilst trying to settle the doctrinal controversy on the legal characteristics of the right of preemption, the new Civil Code provided for in Art. 1731 that the sale of the property on which there is a legal or conventional preemption right can be concluded with a third party only provided that there is a condition precedent of the preemptor non-exercising the right of preemption, but without specifying explicitly whether such a condition should be considered implicit where it has not been stipulated in the sales contract with the third party. Removing the jurisprudential shortcomings of the substitution mechanism related to the beneficiary instead of the third party purchaser, who is incompatible with the dissolution contract signed between the latter and the promisor, Art. 1732 and 1723 of the new Civil Code, without expressly referring to the sale under condition precedent, stipulate that, through the exercise of preemption, the sales contract is deemed concluded between the preemptor and the seller in the conditions contained in the contract with the third party, and this latter contracts shall be canceled retroactively. In terms of obligations, the creditor is entitled to proper execution and should the creditor have such right, he/she should be granted the opportunity to find effective means to protect it. Reading of Art. 1731 of the new Civil Code, in the sense of making the condition precedent of the preemptor’s non-exercise of the right of preemption in the any sale between the promisor and the third party to be implied, corresponds to the doctrine and jurisprudence attempts to find appropriate means to ensure the observance of the preemptor’s ignored rights, while considering the above principle. -
Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure provides that review of a final and binding decision in the Appellate Court or non-appealed and of a ruling passed by a court of last resort upon merits called forth may be requested „whether, following the rendering of the decision, a court order which grounded the decision under review claimed was abated or amended.” The author, in light of the practice of the European Court of Human Rights, considers that the purport should be interpreted narrowly. Accordingly, the scope of Article 322 section 5, second phrase of the (Romanian) Code of Civil Procedure may cover uncertified court orders exclusively (referred to as binding) because only these can be amended / abated under appeal or recourse, and not judgments passed within right of review procedures such as review or appeal for annulment, on account of complying with the principle of legal certainty. -
Following the repeal of the legal provisions set forth in the Law. 83/1995 and then in the Law. 130/1999, which generally regulated the situations in which, instead of concluding an individual employment agreement, a civil agreement for services could be concluded, the question arises in which cases and under which conditions such civil agreements can be concluded at present, under legal circumstances. In the article below the author studies this problem and draws up finally, as well, some proposals de lege ferenda to avoid any discussions and controversies in the field. -
Pursuant to Article 127 (1) of the new (Romanian) Civil Procedure Code, „If a judge has the status of plaintiff in an application for which the court where he pursues his activity has jurisdiction, he shall refer the matter to one of the courts of the same level located within the district of any of the courts of appeal neighbouring the court of appeal in whose district the court where he pursues his activity has jurisdiction.” After making a general analysis of the text, the author, contrary to some opinions expressed in the doctrine, considers that, for identity of reason, the text applies accordingly, and not only if the indicated situation exists in first instance, but also if that situation exists in appeal or in recourse, and this is for: identity of reason. -
The sanction for the non-observance of the right of access to justice in the case of Iosif v. Romania, obliged the Romanian State to take the necessary measures to prevent similar breaches in the future. Undoubtedly, however, a non-unitary case law exists further in the matter of granting the public legal aid in relation to the bail. To allow the inadmissibility of the exemption or decrease of the bail amount – majority in practice – involves, in the author’s opinion, to accept the imposition of a real “obstacle” to the free access to justice. Therefore, the granting of the public legal aid regarding the stamp duty is futile as long as the possibility of granting the public legal aid in relation to the bail payment, is not recognized. -
As part of the legal culture, the judicial culture is particularly important in the activity of elaboration, interpretation and application of law, for the achievement of the values of the state of law. While the legal culture concerns the law configuration factors, the judicial culture expresses the aspects of the context of its application, having the administration of justice in its centre. The national traditions, the particularities of the positive law, a certain way of producing truth, the popular representation of justice and the flow of information and the legal ideas play important roles in crystallizing the content of the judicial culture and in expressing its specificity. Distinguishing between the internal judicial culture (including the attitudes, judgments, perceptions, values, etc. common to a group of law professionals) and the external judicial culture (expressed in the perceptions and in the imaginary of the society about justice), the author examines the content of the concept and analyzes its constitutive elements. The traditions, the forms of expression and the prospects of development of the Romanian judicial culture are analyzed from this general perspective. -
In the absence of some systematic concerns with significant results, the concept of legal culture still remains at the stage of exploration of its meanings. Starting with its increasing role in the configuration of the law, this study deals with defining the concept, placing it in the context of culture in general and emphasizing the constitutive elements and the main contributions: the history of law, the legal language, the dialogue by means of comparative law, the practice of justice and others. The professional legal cultures and their role occupy an important place in the spiritual concert of society. It is analyzed the legal perception of the concept of culture, the role of scientific research in the matter and the implications of globalization. An outline of the Romanian legal culture in the historical dynamics completes the author’s approach. -
This study aimed to develop a theoretical analysis configured in the matrix of a critical examination on the rulings of the Constitutional Court of Romania contained in the Decision No 702/2019. To this end, there were examined the conclusions promoted by the constitutional contentious court, which applied, in support of its point of view, the principle of equal treatment, constitutional rule, as well as of proportionality, praetorian construction, promoted by the case law, from which it resulted that, from a legal perspective, the disabled pensioners who acquired this legal condition based on the Law No 19/2000 will benefit from the application of the correction index regulated by the Law No 263/2010, if at the time of the ex officio transformation of the invalidity pension into an old-age pension the latter law was in force. -
Starting from the Decision no. 1.105/2010 on the exception of unconstitutionality of the provisions of the Government Emergency Ordinance no. 63/2010 for the amendment and supplementing of Law no. 373/2006 regarding the local public finances, as well as for establishing some financial measures, by which the Constitutional Court ruled that the subsequent effective dates of certain provisions of the emergency ordinance do not invalidate the urgent and extraordinary nature of the situation being regulated, the study examines the matter of the coming into force of emergency ordinances, in the light of the constitutional provisions and the provisions of Law no. 24/2000 regarding the norms of legislative technique for drafting regulations (republished). The study also presents a situation regarding the effective date of the Government Emergency Ordinances, starting with the year 2004 (subsequent to the revision of the Constitution). -
In this study the author performs a general exposure of the concept of periodic penalty payments firstly (concept, terminology, origin and evolution; legal nature; goal, legal basis; structure), and then examines the legal regime of the periodic penalty payments in the administrative matter (the grant conditions; the forms of the periodic penalty payments and the liquidation of the periodic penalty payments in the matter, and finally he discusses about the issue of the periodic penalty payments in the administrative matter in the light of the European Convention for the Protection of Human Rights and of Fundamental Freedoms (including in terms of the practice of the European Court of Human Rights from Strasbourg). -
In this study there are presented the main scientific arguments that can be taken into account for promoting a new discipline, as sub-branch of the Romanian criminal law, namely the criminal law of transports. For the scientific arguing of this approach, there have been briefly examined the system of Romanian law, the syntagms of branch, sub-branch and institution of our law. As regards the criminal law, reference has been made to the two parts, to some institutions and to the possibility of recognizing the criminal law of transports as sub-branch of the Romanian law. Likewise, within the scientific approach, it has been carried out a brief examination of the criminal law norms specific to the safety of traffic and of transports from Romania, insisting on the necessity of grouping them into a distinct normative act, recommending even a code of transports. The examination has considered the main elements of similarity between criminal law norms specific to the four domains of the national system of transports, namely: road, railway, naval and air.
