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The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory” in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge’s intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties’ benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code. -
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Rapid expansion and diversification of international relations boost the improvement of public international law, by adopting new rules or by adapting the existing ones to the new relationships between states and other international entities, in order to protect the global legal order by preventing the acts of aggression or other events that may affect the safety of states, human rights, environment or other universally recognized values. -
The reasons behind our research are justified by the numerous legal acts of the European Union adopted in the most diverse areas, acts which include an unprecedented development of substantive EU law, particularly during the last period (2000–2017). As a consequence, the situations in which the infringement procedure can be initiated are also exponentially multiplied. An in-depth analysis of the subject can be edifying if we make a quantitative comparison, and not only, of the EU acquis, existing in the ’60s, at the beginning of the Community construction, compared to the present, already 60 years after the signing of the Treaties of Rome, which have led to the adoption of a highly derivative legislation within a Union of 28 Member States. Regarding the infringement procedure, for doctrinaires, but especially for practitioners, we will analyze the following outstanding issues: who can trigger the procedure; against whom the procedure may be triggered; the situations and methods for initiating the procedure and the steps taken. All these aspects are presented taking into consideration the quality of Romania as a Member State of the European Union with full rights and obligations. -
In this study the author analyzes the provisions of the new normative act on regulating the activity of teleworking, namely of that form of organization of work „by which the employee, on a regular and voluntary basis, fulfils the specific attributions of his/her position, occupation or trade, elsewhere than the workplace organized by the employer, at least one day per month, using the information and communications technology”. Due attention is paid to the individual labour contract, having such an object, to its specific content, to the rights and obligations of the parties, to the contraventional liability in case of non-compliance with the legal norms. The study emphasizes the advantages and benefits of teleworking both for employers and for employees.
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The article aims to give a new interpretation of the functioning of the separation of powers principle, starting from the tango metaphor. Within it, music represents the principle (the supreme norm), dance, the gesturing of music, so the principle. The two protagonists of the dance (the man and the woman) are seen as the embodiment of the legislature and the executive. The judiciary is constituted by the dance teacher who is the main pawn in the tango logos, adapting the movements (sermo) to the music (ratio), while giving the framework in which to evolve the two protagonists who improvise starting from the principles. From the combination of music and dance, as ways of social organization, it results happiness. Against the background of a subtle harmony, the tango metaphor can account for the functioning of society, the relationship that is established between the tango partners, between them and music, between them and the dance teacher, but also between the protagonists and the public, shows how it works society as a whole. -
This paper summarises particularly complex issues raised by the offence of concealment. It begins with an analysis of the rational value of amendments brought to the offence of concealment (Article 270 of the new Criminal Code) and continues with the analysis of other problems raised by this offence, which either have not yet found a satisfactory solution or have solutions, but they are not known, understood and unanimously adopted in the criminal law practice. -
The law provides that all declared claims will be subject to the verification procedure, with the exception of claims established by enforceable court judgments and enforceable arbitral awards, as well as budgetary claims resulting from an uncontested enforcement title within the time limits provided by special laws. In case the court judgments or arbitral awards are annulled, quashed or modified in the means of appeal, the judicial administrator/judicial liquidator will restore the table of claims accordingly. In case the court, by annulling or quashing the judgment, does not settle also the merits of the case, the judicial administrator or the judicial liquidator will proceed to the verification of that claim, by notifying the creditors in the event of total or partial non-inclusion of the claim, the creditors having, against the measure of the practitioner, in the Bulletin of Insolvency Procedures the extract of the report of the judicial administrator or of the judicial liquidator in which that measure is described. The judicial administrator will proceed immediately to the verification of each application and of accompanying documents and will conduct a thorough investigation to determine the legitimacy, the exact value and priority of each claim. For this purpose, the insolvent practitioner has the right to request explanations from the debtor, will be able to discuss with each debtor, requesting additional information and documents, if he considers it necessary. The regulation included in paragraph (2) of Article 106 of the Insolvency Code has an absolute novelty character, because until the appearance of the Law No 85/2014 the judicial administrator/judicial liquidator did not have the right to establish that the extinctive prescription of the claim has arisen. This is provided that, in the conception of the new Civil Code, the prescription can only be invoked by the one in whose favour it runs. Therefore, if the insolvent practitioner will appreciate that for the amount of money declared by a creditor within the procedure the extinctive prescription has arisen, he will notify the creditor in that regard, without further checks on the pretended claim, the legislator considering that in this case it acts, although it is a body applying the procedure, as a representative of the insolvent debtor, obviously with the possibility of the creditor interested in challenging the measure to the syndic-judge. As a result of the verifications made, the judicial administrator/liquidator will draw up and register with the court a preliminary table containing all claims against the debtor’s estate, overdue or not, under condition or under dispute, arisen before the date of the opening procedure. In the table there will be mentioned both the amount requested by the creditor and the amount accepted and the priority rank, and in the case of the creditor undergoing the insolvency procedure the appointed judicial administrator/judicial liquidator will also be indicated. In the case of the simplified procedure, in this table the claims arisen after the opening of the procedure and until the moment of going into bankruptcy will be recorded. In the case of claims which benefit from a preference cause, there will be presented the title from which the right of preference arises, its rank and, if applicable, the reasons for which the claims have been partially recorded in the table or have been removed. The claims that are benefiting from a preference case shall be entered in the preliminary table with the full value, indicating at the same time the title from which the preference right arises, their rank and, if applicable, the reasons for which the claims were only partially recorded in the table or have been removed, and in the final table, up to the market value of the guarantee determined by assessment, ordered by the judicial administrator or by the judicial liquidator, by an authorized assessor. However, Article 122 (1) of the Framework-Law makes the drawing up of the final table of claims conditional upon the handover by the assessor of the guarantee assessment report. In case the capitalization of the assets over which the preferential cause takes effect will be made at a price higher than the amount entered in the final consolidated table, the positive difference will be assigned to the guaranteed creditor, even if a part of his claim had been recorded as a secured debt, until covering the main claim and the accessories that will be calculated according to the documents from which the claim arises, until the date of the capitalization of assets. This provision will also be applied in case of failure of the reorganization plan and the sale of the asset in the insolvency procedure. -
In the context of the new legal framework existing after the entry into force of the Law No 85/2014, this study analyzes the final table of claims and the contestations against it, by emphasizing the notable differences as compared to the old regulation – the Law No 85/2006 – and the importance of the final table of claims over the debtor’s estate in the insolvency procedure, as well as the exceptional character of the contestations against it. The registration of claims in the final table of claims against the debtor’s estate is generating rights for the creditors, and, consequently, the analysis and the thorough study of how this is produced, of the content of the final table of claims, of the time of its registration and publication, as well as of the rights and obligations of the participants in this procedure are essential. The contestations against the final table of claims have an exceptional character and the conditions in which these may be formulated are strictly, expressly and limitatively enumerated by the law. Under these circumstances, this legal remedy is approached from the perspective of the persons who may have the legal standing to file the contestation, from the perspective of the time limit for their submission – which appears as a highly opportune legislative novelty for the stability of the procedure – and, finally, from the perspective of the exceptional situations which may lead to the admission of such contestation. -
The final table of claims is the result of the expiration of the time limit for contestations, without such a contestation being lodged or, as the case may be, the outcome of the solutions given by the courts after the examination of the contestations. In the final table there may be entered also the current claims, at the request of their holders, and this can no longer be contested for the usual reasons for which the preliminary table could be challenged. Instead, in compliance with Article 113 of the Law No 85/2014, the final table may be contested by any party concerned (so, not only by debtors or creditors), throughout the procedure (so not just 7 days after the publication of the preliminary table in BIP) for the discovery of a forgery, of a fraud or for an essential error in the drawing up of the table or for the discovery of some decisive titles, previously unknown (called, in practice, brevitatis causa „contestation for essential error”). We have pointed out that the current regulation reiterated the error in Article 75 of the old Insolvency Law No 85/2006, whereas it only refers to the recording in the table, and not to the omission to record in the table, when it regulates the objective of the contestation. Posting of the definitive table is an important landmark in the procedure, since a 30-day period is running therefrom during which a draft reorganization plan must be proposed, under the sanction of bankruptcy. The preliminary table of claims contains all claims accepted by the judicial administrator, as a result of the verification made under Article 106 of the Law. The claims arising before the opening of proceedings are recorded therein, both the ones overdue and the ones not due, pure and simple or conditional ones, as well as those in dispute (if these are known to the judicial administrator).
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In this study has been underlined the most important trends and options regarding the role of state sovereignty in the contemporary world. Has been analyzed the place of the sovereignty in the process of integration and globalization. The conclusion is that even in this process, sovereignty of state continues to be an important component in the relations of states, based on cooperation and non-subordination. -
This article analyzes the particularities of the suspension by judgment of the enforcement of administrative acts. The legal institution of suspension of the enforcement of administrative acts is a legal instrument made available to the persons claiming to be injured and constitutes a guarantee against the producing of some irreparable damage. The author investigates the conditions and legal effects of the suspension of the enforcement of the administrative act after formulating the prior complaint and the suspension requested in the main proceedings, including also some proposals de lege ferenda. The research is carried out taking into account the latest amendments to the Law on administrative disputes No 554/2004 by the Law No 212/2018 amending and supplementing the Law on administrative disputes No 554/2004 and other normative acts. Also, within this research, the author refers to the decisions of the Constitutional Court on the pleas of unconstitutionality raised in this matter. -
This study analyzes a correlation between the Fiscal Procedure Code (the suspension of the extinctive prescriptions in tax matters) and a provision of the Civil Code (suspension of the extinctive prescription as long as the debtor deliberately conceals from the creditor the existence or the exigibility of the debt). The corroboration of these texts, implicitly imposed by the Criminal Procedure Code, raises a series of legal issues, which the author analyzes and, in her opinion, settles them as well. -
The article reviews the effects of suspending the judgment of the case during the settlement of the non-constitutionality exception, by reference to art. 6 of the Convention for the defense of human rights and fundamental freedoms, in particular in what regards the requirement of a reasonable hearing term and of celerity of the criminal trial. In addition, the consequences of resolution no. 3/ 2010 of the Constitutional Court on pending criminal procedures on the dockets of the courts of law are discussed.
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The suspension of the administrative contract is an institution rather newly-introduced in the Romanian law, at the same time with the entry into force of the Law No 101/2016. However, this normative act exclusively regulates the judicial suspension of the administrative contract, which makes room for the following question: Can an administrative contract be suspended only by court decision and only under the conditions established limitatively by the Law No 101/2016 or in other circumstances as well, namely following a procedure other than that established by the aforementioned normative act? We believe that the suspension of an administrative contract may also be reached under conditions other than those established by the provisions of Article 53 (2) of the Law No 101/2016, either by administrative means, by a decision of measures taken by the competent bodies of the Court of Accounts, or as a result of the raising by one of the parties to such a contract, in relation to the other, of an exception for non-performance of the contract, or, finally, as consequence of the suspension of the unilateral administrative act on the basis of which such a contract was concluded, using the rule according to which the legal fate of the original act determines the legal status of the subsequent act. The subject seems to be new in our legal literature and engages extraordinary implications of substantive and procedural law. It is sufficient to mention here that the judicial suspension of the administrative contract enjoys, at the level of the Law No 101/2016, by a superficial regulation, requiring the supplementation by several provisions of the Law on administrative disputes No 554/2004, but also with those pertaining to the current Civil Procedure Code. It is this supplementation that makes it possible to clarify the institution of the judicial suspension of the administrative contract, but in a direction that raises problems which the practitioner not accustomed with the analytical doctrinal discourse could hardly envisage, of a higher depth than that encountered in the marginal comments of the legal provisions incidental in this matter. In other line of ideas, in the context of analyzing the set of prerogatives attributed by the law to the Court of Accounts, it can easily be concluded that an administrative suspension of the administrative contract is perfectly possible, ordered by a unilateral administrative act of an individual nature. Likewise, the administrative contract may end up in the situation to be suspended, as consequence of the legal suspension of the unilateral administrative act, on the basis of which the contract was concluded, an act challenged by the prefect in the exercise of the prerogatives of administrative trusteeship with which he was empowered by law. Both scenarios are binding on the use of the terminological luggage of the Law on administrative disputes No 554/2004. Lastly, the suspension of the administrative contract may be engaged also by the possible raising by any of the parties to an administrative contract, in relation to the other, of an exception of non-performance, which sends the assumed analysis to the ideological set of the civil law. -
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. -
The Romanian legislator has introduced an innovation in criminal proceedings matters: the institution of the suspect, which is questionable from several points of view. According to the provisions of the new Romanian Criminal Procedure Code, the suspect is the person about whom, from the existing data and evidence in the case, a reasonable suspicion arises that he has committed an offence provided by the criminal law; the quality of suspect is acquired only when the prosecutor orders that the criminal prosecution – which had previously started only with regard to the deed (in rem) – be further conducted against that person. The suspect is not a party in the criminal proceedings, but a main subject to proceedings. In this study, the authors analyze the institution of the suspect, by presenting some critical aspects and by proposing the reconsideration of its regulation. -
The relationship between the constitutional norms and the European Union law is interpreted differently, as there are several doctrinal conceptions and different case law solutions. A trend of thought affirms the supremacy of the Constitution, including over the European Union law, even though it accepts the priority of application of the latter, in its binding rules, over all the other rules of domestic law, and other trend affirms the priority of the unconditional application of all the provisions of the European Union law over all the norms of the domestic law, including over the constitutional norms. There are European constitutional jurisdictions which have established that they have the competence to conduct the control over the constitutionality of the European Union law, integrated into the domestic legal order, by virtue of the principle of supremacy of the Basic Law. In this study we analyze the interferences between the principle of priority of the European Union law and the principle of supremacy of the Constitution with reference to the doctrine and the relevant case law in the matter. Key words: principle of priority of the European Union law; principle of supremacy of the Constitution; obligativity of the legal norms of the European Union; control of the constitutionality of the legal acts of the European Union integrated into the domestic law; compliance of the domestic law with the European Union law. -
The funeral expenses are borne either from the estate left by the deceased, or by the person who contracted this obligation, or who has been entrusted by will with the task of settling the funeral. Also, the person who is responsible for the act which caused the expenses is usually obliged to pay them back. As such, this short study presents the notions of funeral and commemoration expenses from the perspective of the persons obliged to bear them.
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Reiterating his view [in that the commercial law is not an autonomous branch of law, but is part of the Romanian civil law, with effect from 1 October 2011, since the new Romanian Civil Code entered into force (Law no. 287/2009, as republished) Code essentially “of monistic nature”], the author criticizes the view (to the contrary) of certain theorists and practitioners, focusing on art. 2557 para. (2) of the Code, as well as the existence – undisputed – of the legal discipline called the international trade law. -
In the following study, the author carries out an analysis of the Law No. 571/2004, the author emphasizing the fact that this law is actually very little known and applied, although its adoption in 2004 was made considering Romania’s accession to the European Union (this took place on January 1, 2007). For that purpose, while analyzing certain wordings of the law (which consists of a total of 11 articles), the author proposes a number of amendments and supplements thereto, in order to improve and use thereof in the social life practice. -
The author criticizes a decision of the Bucharest Court of Appeal which, having to settle a case concerning dismissal determined by the dissolution of the workplace of an employee for reasons not related to him/her, stated that the dismissal is lawful even if it was not the position of the dismissed employee that was dissolved but another position of the same kind, but, on the other hand, it has decided that the measure in question is unlawful on grounds of not being „serious” since the employer (a ministry) has not proven the objective criteria that should support the seriousness of the applicant’s removal from the position held (the reason why the employee was not good enough or sufficiently trained in the profession in order to be maintained in activity or why the other employees maintained in activity were better suited, professionally or otherwise, as compared to the ones selected for dismissal).
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In this study, the author makes a presentation of the Romanian legislation and case-law, of the European case-law (the European Court of Human Rights), of some regulations of the European legislation, as well as of some provisions of the Constitution of France and of Belgium, all concerning the protection of human dignity and reputation of the individual. -
Certain considerations are mentioned in this study regarding the privilege of the confidentiality of the journalists’ information sources. To this end, there is carried out an interesting description of the European conception on the confidentiality of information sources (case law of the European Court of Human Rights; Swedish, German, British, Belgian, French laws), of the conception in the matter of the laws and case law of the United States of America, as well as of the Romanian conception, finally. The study concludes by emphasizing the need for the adoption of a modern Romanian mass-media law, pointing out that the freedom of the media can never be absolute and consequently, may be limited by legal exception rules of interpretation strictly. -
Unitatea Teritorială de Analiză a Informațiilor (UTAI) Oradea nu a desfășurat activități de punere în executare a vreunui mandat de supraveghere, în speță, ci doar a transmis cererea organelor de cercetare penală și ulterior a transmis către acestea răspunsul primit de la operatorii de telefonie mobilă. Prin urmare, nu se poate aprecia că aceștia au administrat probe în dosar, ci doar au intermediat, fără a face cercetări suplimentare, transmiterea corespondenței între organul de cercetare penală și operatorii de telefonie mobilă, acesta fiind și motivul pentru care nu aveau nevoie de aviz de poliție judiciară, întrucât nu desfășurau acte de urmărire penală. (Judecătoria Oradea, Secția penală, Încheierea nr. 198 din 10 ianuarie 2020).
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In the study it is emphasized that the main effect of the fidejussion is represented by the obligation of the fidejussor to execute the obligation of the debtor, in case the latter does not fulfil it voluntarily. I have shown that by invoking the exception of the discussion, the conventional or legal fidejussor uses the faculty to ask the creditor, who has started the prosecution against him, to pursue first the assets of the principal debtor, within the limits of the value of the principal debtor’s assets, which the fidejussor will indicate to the creditor. This means of defence by which the fidejussor seeks its exemption from the execution in whole or in part of the obligation of guarantee, derives, on the one hand, from the ancillary nature of the obligation of guarantee and, on the other hand, from the very legal relation of fidejussion. -
In this study, the author expresses a series of personal considerations on the civil liability of the transport operator (the carrier) in the regulation of the new Romanian Civil Code, specifying that, against the recipient, dispatcher and passenger, the mentioned liability is contractual liability, while against third parties it is tort liability. -
Insolvency is a contemporary reality which has spread its branches in more and more areas of the law, but also of the society. With reference to the moment of onset of the economic crisis, in 2008, it can be noticed, from a statistical viewpoint, an increase of the number of companies against which the insolvency procedure has been opened, which are undergoing this procedure with its various stages, a fact which can change our outlook on the effective modalities by which they can continue to participate in the civil relations. In relation to these novelty elements, in this study it is discussed whether companies can continue to participate in commercial life, who will run the business, how will the commercial relations materialize into the sensitive matter of public procurement. -
The pre-contractual obligation to inform is one of the ethical instruments meant to ensure the durable and effective maintenance of the contract (contractual durability principle), a requirement which has acquired a considerable development owing to its functions: preventing a possible failure as concerns the maintaining of the durability and the effectiveness of the contract and building a contractual relation based on the active presence of the contracting parties. The provision of sufficiently accurate information will lead to making a decision to conclude or not the contract in full awareness of the facts. It is designed to extend also to the phase of contract performance, allowing the parties to think more deeply about the commitments they will make. But, in the pre-contractual phase, of negotiations, the future contracting parties only begin building a durable trust, which is achieved through dialogue and collaboration and which has normally extended also to the phase of performance of the contract. The pre-contractual obligation to inform tends to engage other legal means as well in order to come to decision-making in full awareness of the facts and in order to build, at the same time, a „bond of trust” intended to extend in time. Therefore, it is obvious the need to generalize this obligation, thus strengthening the coherence of rules (principle of coherence), this being achieved both by way of extending the application of the requirement of „good faith” and by special express rules specific to each category of contracts. -
This study is a brief essay on the right to one’s own image, as it is regulated in Article 73 et seq. of the Romanian Civil Code (the Law No 287/2009, republished on 15 July 2011 and entered into force on 1 October 2011).
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In this study, the authors have examined the provisions of the Romanian Civil Code (the Law No 287/2009) concerning the maintenance obligation (Articles 513– 534). Therefore, there are analyzed: the general principles; the subjects of the maintenance obligation; the order in which maintenance is due; the conditions of the maintenance obligation; determination and performance of the maintenance obligation. -
In this study, after briefly describing the concept of sovereignty, the author successively examines the sovereignty of member states in their relation with the European Union, express restrictions of sovereignty (changes which occurred in the constitutions of member states); certain issues regarding the permanent integration of member states.
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Aspecte introductive. Motivarea unei hotărâri judecătorești este procesul cognitiv prin care judecătorul, în raport de petitul acțiunii, argumentele părților, probatoriul administrat și dispozițiile legale, elaborează soluția. Motivarea trebuie să înglobeze toate rațiunile ce au dus la edictarea soluției1, expresie a judecății efective a cauzei. Este deci esențial ca soluția pronunțată să aibă la bază o motivare completă, denumită în doctrină ca suficientă (deci nu se urmărește o motivare totală care să răspundă fiecărei susțineri a părților, dar nu se poate accepta o motivare parțială), care să se raporteze cel puțin la fiecare categorie de argumente invocate de părți, prin arătarea rațiunii pentru care a fost reținută respectiva categorie de argumente ori înlăturată. -
The Law No 85/2014 on the procedures for preventing insolvency and of insolvency (which entered into force at the end of June 2014) repeals and replaces the Law No 85/2006 on the insolvency procedure. Obviously, the current law brings a series of new elements, as compared to the previous law. This study briefly presents the main elements of novelty brought, in this matter, by the Law No 85/2014, as compared to the Law No 85/2006, reaching to the conclusion that the regulation of the new law, on the one hand, avoids the financial blocking and, on the other hand, in view of covering the claims, gives greater chances both to the debtors who are in difficulty or in default of payment, and also to the creditors, especially if they are acting in good faith. -
