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In the absence of a meaning established by the legislator and in the presence of some modest doctrinary concerns, this study tends to be a contribution to the definition of „invention”, in general, and of „patentable invention”, in particular. Likewise, there are analyzed the „substantive conditions” for the patentability of the invention, the „elements” and the „scientific creations” which are not regarded as inventions, as well as the „unpatentable inventions”. In this context, there are also presented some situations where the provisions of the Regulation implementing the Law No 64/1991 on invention patents exceed the provisions of this Law and the legislative technique rules for elaborating the normative acts. -
As the phrase „contractual balance” is too vague, for the purpose of clarifying its content, it has been used the notion of proportionality which is translated by a ratio between finality (purpose) and the means for achieving it. The proportionality, in its turn, does not consist in a mathematical relation, for this would mean ignoring the essence of the contract, namely the will of the contracting parties. So further specifications have been necessary in the sense that the proportionality is, at the same time, a measurement instrument and a sanction, namely a principle of fair-measure that puts into practice a finalised proportionality which relates to the legitimate objectives pursued or that should be pursued, which requires sometimes a strict proportionality, other times a relative proportionality, consisting in sanctioning only the obvious abuses. The proportionality contributes to the implementation of the principle of maintaining the durability and the efficiency of the contract, which favours the maintaining of the quality of the contract content, both at the time of its formation and for the duration of its performance, the sanction falling within the institution of lesion and, respectively, of unpredictability.
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In this study, the author makes an analysis – partly critical – of the provisions of Article 2358 (1) and (2) of the new Romanian Civil Code referring to the assignment of the mortgage and of Article 2427 of the same Code regarding the change in rank of the mortgage. Although the author appreciates, in general, as positive the regulations of the new Romanian Civil Code related to the assignment of mortgage and to the change in its rank, separately from the claim which it guarantees, nevertheless, in the conclusion there are retained a number of shortcomings in the drafting of the mentioned texts, for which reason several de lege ferenda proposals are made. -
This study first analyzes the amendments brought to the offence provided in Article 141 of the Law No 8/1996 by the Law No 187/2012. The author emphasizes the non-correlations of the incrimination with the moral copyrights which it protects, as well as the lack of clear and precise wordings, which should exclude any ambiguity in the drafting of the incriminating rules. The analysis of the offence provided in the special law is connected to the provisions in the matter contained in the Criminal Code, as well as to the doctrinaire opinions expressed in the field. The critical remarks expressed by the author concerning the meaning of legal rules are intended to be impulses addressed to the legislator to correct the drafting of texts, in order to achieve the desideratum of compliance with the requirements of accessibility and foreseeability of the law for its addressees.
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La data de 20 octombrie 2014, Înalta Curte de Casație și Justiție (ÎCCJ) – Completul pentru dezlegarea unor chestiuni de drept a soluționat trei cauze cercetând „problema de drept ce formează obiectul acțiunii privind caracterul discriminatoriu al dispozițiilor cuprinse în Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, cu modificările ulterioare, în raportare la dispozițiile comunitare cu care intră în conflict”1 și „dacă dispozițiile art. 4 din Ordonanța de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobată cu modificări și completări prin Legea nr. 37/2014, și ale art. 1 alin. (2) din Normele metodologice de aplicare a Ordonanței de urgență a Guvernului nr. 9/2013 privind timbrul de mediu pentru autovehicule, aprobate prin Hotărârea Guvernului nr. 88/2013, se interpretează în sensul că timbrul de mediu se datorează și în situația transcrierii dreptului de proprietate asupra unui autovehicul rulat provenit de pe piața internă a cărui primă înmatriculare a fost anterioară datei de 1 ianuarie 2007”2.
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The proposed study aims, in particular, at questionable normative aspects concerning „the action for nullity of the registration of the trademark” in the regulation of the Law No 84/1998 on trademarks and geographical indications. In fact, contrary to the reference that some texts of this law make to „the nullity of the registration of the trademark” or to „the cancellation of the trademark”, the nullity has as object the „administrative legal act of the State Office for Inventions and Trademarks of registration of the trademark”. Likewise, it argues on the uselessness of some rules devoted to this action at law. -
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. -
Introducere. O justiție perfectă nu poate fi concepută fără respectarea valorilor, a principiilor fundamentale, nu poate fi imaginată în afara unei societăți care mai înainte de a fi dreaptă trebuie să fie una civilizată. Societatea întemeiată pe principiile statului de drept a devenit o formulă pe care o auzim rostită pretutindeni, reluată obsesiv, ca un laitmotiv fără de care nu începe și nici nu se poate sfârși o zi. Garanția statului de drept nu poate fi întemeiată decât pe o justiție echitabilă, imparțială și eficientă
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The study examines, under multiple aspects, the relationship employer – employee in terms of protection of the personal data of the latter. There are identified, as being applicable, the legal rules contained in the Labour Code, in the Civil Code and in other normative acts, but also in the European and international regulations. It clarifies, in practical terms, the concrete modalities (internal regulation, individual labour contract, addendum) which may set the rules in this matter for each employer.
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At the same time with the entry into force of the new Civil Procedure Code, according to the authors, the appeal has also made its way into the field of administrative disputes, in addition to the recourse, which is the traditional legal remedy in this matter. This study identifies the problems raised by this new legislative conception, noting the current legislative inconsistencies that impedes the process of application of the objective law and, moreover, generates non-unitary judicial practice.
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The study is devoted to the analysis of the legal provisions on the civil liability for disregarding the copyrights, the rights related to copyrights and the sui-generis rights of the creators of databases. Specifically, there are discussed aspects such as: the basis of the matter, the nature of the infringed rights, the engagement of the civil liability (the nature of the legal actions regulated by Article 139 of the Law No 8/1996, the promotion of these actions, the jurisdiction to settle the litigations, setting of the damages, the provision of information and the provisional measures). The idea of the study starts, especially, from the little consideration given to the subject in the Romanian doctrine in the field of legal protection of the intellectual creation and in the numerous existing normative problems in the matter. -
In this study the authors criticize the case law of some courts by which it is ordered „the restoration of the previous situation”, in case a person acquires an asset (by committing an offence) and subsequently alienates it to a third party in good faith. The situation presented is justified, according to the authors, by the idea that, if the solution suggested is not accepted, an uncertainty and an instability will be created in the civil circuit, which are likely to lead to the infringement of the property right or of the mortgage right. Moreover, in the matter of real rights on buildings, uncertainty would be reached even in respect of the buildings recorded in the land book, thus infringing the provisions of Article 900 (1) of the new Civil Code, a text that establishes that „if a real right has been recorded in the land book for the benefit of a person, it will be presumed that the right exists for the benefit of such person”.
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After the entry into force of the new Civil Procedure Code and of the new Criminal Procedure Code, the problem of the judicial institution of the liability of the State and of the magistrates for the prejudices caused by judicial errors still remains controversial and unclarified, further generating doctrinaire and jurisprudential controversies. In this context, this study intends, in relation to the current legal context, to make an analysis of a few controversial problems regarding the liability of the State and of the magistrates for the prejudices caused by judicial errors, aiming, in particular, at the forms of liability of the magistrates, the legal nature of the labour relation of the magistrates, the legal nature of the liability of the State for the prejudices caused by judicial errors, the procedure of engaging the liability of the State and the action for regress brought by the state against magistrates.
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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.
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Dreptul european al achizițiilor publice reprezintă una dintre materiile cele mai armonizate din dreptul Uniunii1, atât din perspectiva normelor substanțiale, cât și a celor procedurale (căile de atac împotriva deciziilor autorităților contractante)2
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The article analyzes the facultative jurisdiction of the court seized with an application promoted by a judge, a prosecutor, a registrar, a legal assistant, who act as plaintiffs in an application for which the court where they carry on their activity has jurisdiction. The analysis focuses on the meaning and the interpretation of the phrase „court where they carry on their activity”. -
Within this study, the author has analyzed, in the light of the new Fiscal Procedure Code and also of the current one, the forms of the sanction of the fiscal obligation and the mechanism of their operation depending on the category of creditors that may be, on the one hand, the fiscal bodies, and, on the other hand, the taxpayers that are entitled to the refund or the reimbursement of some amounts from the public budget. Similarly, the author has made the necessary distinctions between the types of sanctions depending on whether the fiscal claims pertain to the central budget or to the local budget. Finally, the author has analyzed the modalities of granting the delay interests for the failure to refund the amounts from the budget due to the taxpayers depending on the cause which has generated these fiscal claims, respectively the fault of the fiscal bodies or of the taxpayers themselves.
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The tax administrative disputes, as a branch of the administrative disputes, a fundamental institution of the state of law, meant to protect and guarantee the fundamental rights and freedoms of citizens, becomes particularly important after the accession of Romania to the European Union. In this context, by the adoption of the new Fiscal Procedure Code, harmonized with the European acts in the matter, the fiscal processual rules which regulate the matter of the tax administrative disputes enjoy a greater clarity, quality and predictability. Starting from these desiderata, this study aims at analyzing the main amendments and supplements brought by the new Fiscal Procedure Code, in the matter of the tax administrative disputes, in relation to the provisions of the Fiscal Procedure Code in force.
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The following study concerns the causes of inadmissibility in the Romanian constitutional jurisdiction. Thus, after a series of preliminary considerations, the authors examine, in detail, in the light of the case law of the Constitutional Court of Romania, the following: – the causes of inadmissibility regarding the legality of the referral; – the causes of inadmissibility in connection with the authors of the referral; – the causes of inadmissibility referring to the motivation of the referral; – other elements related to the legality of the referral; – the causes of inadmissibility concerning the extent of the control; – the causes of inadmissibility referring to the jurisdiction of the Constitutional Court.
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The study reiterates, in other aspects, the previously conducted analysis of the autonomy of the labour law, having in view the preamble of a civil decision of the 7th Division for cases concerning labour and social insurance disputes, within the Court of Appeal of Bucharest. This preamble also states: „The provisions of the Civil Code have nature of general law, representing the common law in the matter of civil legal relations in a broader sense, a matter where the labour relations are also included.” This study shows that, if such a statement would be retained, this would mean to accept implicitly the inexistence of autonomy of the labour law. As a result, it briefly analyzes the main specific features of the labour relations compared to the civil ones, reiterating that the labour law is a mixed branch of law, autonomous, but not independent from the civil law, a component of the private law. The rules of the civil law apply, as rules of common law, only subsidiarily, in the absence of some specific regulations of labour law and unless this is contrary to the particularities of the legal labour relations.
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In this study, the author examines the problems of granting in Romania the subsidiary protection for the asylum seekers in case of generalized violence in situations of armed conflict, stating that, according to the internal and international legal terminology, the subsidiary protection is a form of international protection from which the asylum seekers can benefit. In this respect there are presented: the legal framework – international, European and internal – in the matter, as well as the conditions of granting the protection in question for the asylum seekers in case of generalized violence in situations of armed conflict. -
By critically analyzing the foundation of the civil contract, in light of the provisions of the current Romanian Civil Code, in relation to the modern Western European legal doctrine, and by insisting on some obsolete and/or contradictory legal regulations of the new Romanian Civil Code, the author of this study, on the one hand, considers that the principle pacta sunt servanda has presently become a myth, that we are witnessing the constant decline of the autonomy of will in matters of civil contracts and, at the same time, a series of new developments as regards the limits of the contractual freedom, the legal regulation of unpredictability in the new Romanian Civil Code (Article 1271) being relevant in this respect. Finally, the author believes that the current Romanian Civil Code (of 2009) contains a number of inconsistencies and contradictory regulations under the mentioned aspects, for which reason he proposes, in conclusion, the recast of the Code as soon as possible, taking into account the numerous failures thereof.
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The idea of this study has been inspired by obviously modest doctrinaire concerns in connection with the analysis of the legal regulations dedicated to the legal protection of „databases”. In fact, in the specialized literature, as a rule, the approaches usually do not exceed the level of reproduction of the regulations in the field or the subject is simply avoided. Probably this situation is determined, mostly, by the redundant style of wording the provisions of Articles 1221–1224 of the Law No 8/1996 on copyright and neighbouring rights and the provisions of Directive No 96/9/EC of the European Parliament and of the Council on the legal protection of databases. This normative situation should represent the spring of some normative doctrinaire measures deeply studied and it should by no means demobilize the analysis of the problems in the matter.
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This paper mainly includes a critical analysis of the provisions of the Law No 4/2008, made from the perspective of the political and legislative technique exigencies. Subsidiarily, the paper contains a presentation of the sports policy, as it is promoted by the European bodies and by most of the Western European states.
