-
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. -
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. -
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.
-
This paper aims to make an analysis of the judicial trials and applications related to the insolvency procedure, from the perspective of the subjects of law who have legal standing in these cases. Having in view general notions and principles of the lawsuit, as well as derogatory provisions provided by the current insolvency law, there have been analyzed relevant aspects referring to the notion of processual parties in these cases, the delimitation of the notion of participants in the insolvency procedure, the criteria for determining the parties and the subjects of law which may be parties in these cases. In relation to concrete applications, actions and contestations related to insolvency, there have been presented not only the manner in which participate in the trial the subjects of the procedure between which there are established litigious legal relations brought to justice (the debtor and the creditors), the judicial administrator and the judicial liquidator, but also the persons who, as they are not participants in the procedure, acquire processual legitimacy in certain determined litigations.
-
The current Romanian Civil Code (entered into force on 10 October 2011), unlike the previous Romanian civil legislation, regulates a new legal institution, namely the designation of the guardian of the child by his parent in certain situations (Article 114 et seq. of the Civil Code), apart from the appointment of the guardian by the court. Likewise, the Romanian legislation also regulates the designation of the representative of the natural person, under the special conditions of the Law on the mental health and the protection of persons with mental disorders No 487/2002 or according to the Law No 272/2004 on the protection and the promotion of the child’s rights (republished on 5 March 2014) assuming the child’s parents are working abroad. All these assumptions of designation of the guardianship of the child by his parent represent the object of analysis of this study.
-
In this study, the author proceeds to an exhaustive analysis of the provisions of Articles 519–521 of the new Romanian Civil Procedure Code, which, for the first time in the Romanian legislation, establish „the referral to the High Court of Cassation and Justice for a preliminary ruling for the settlement of some points of law”, also in correlation with some legislations of other states or international jurisdictions in the matter.
-
After the author has analyzed in a previous study the need to take into account the legitimate defence in the field of cybercrime and has emphasized the aspects of the conditions of the attack, in this material there are analyzed the legitimate retaliation and the state of necessity. In this context, the author has tried to emphasize the problems that may arise in relation to the conditions relating to defence (legitimate retaliation), also seeking to provide a theoretical framework capable of providing applicability to the institution of self-defence. An important aspect analyzed in this paper has been the putative self-defence, which could be a key aspect in the discussion on the legitimate retaliation. Equally, it has been examined inclusively the institution of the state of necessity, also drawing conclusions on the relationship between this institution and the institution of self-defence. -
This study falls within the so much present problems of civil liability of professionals for malpractice. Starting from the arguments of a jurisprudential solution concerning the lawyer’s liability for the damage caused to the clients or to the third parties, the article intends to present the regulation, the special conditions, the legal nature and the foundation of this hypothesis of liability. By her conclusions the author supports the idea that the civil liability of the lawyer is a separate and autonomous professional civil liability.
-
Considered by the authors of the Civil Code of 2009 a „traditional reality in Romania”, currently the engagement has become a „legal reality”, being regulated by Articles 266–270 of the Civil Code. Without „applauding” or „disavowing” the appearance of this unusual legal institution, we find that the reactions of the specialised literature have remained at their „first steps”. However, they are mostly marked by theses from the French doctrine as well, provided that, paradoxically, the French Civil Code, even if it defines the engagement (Article 515–8), does not devote to it other legal rules as well. Wishing to be a contribution to the „continuing effort of interpretation”, this study is based, primarily, on the logical and legal, systematic and systemic analysis of the provisions of Articles 266–270 of the Civil Code.
-
In the context of integration of Romania into the European Union and of the normative acts adopted by the Romanian legislator in order to ensure the compatibility of the internal law with the European Union law, the tax disputes and, in particular, tax administrative disputes are conferred a great importance. In the ambiance of the European rules and of our internal law, this study intends to analyze several aspects regarding tax administrative disputes, as well as the application of the principle non bis in idem in the matter of tax administrative disputes, in relation to the case-law of the European Court of Human Rights and of the European Court of Justice of the European Union. -
The current Civil Code advances a detailed regulation of the reparation of damage in case of tort liability, the most important matter of this institution. Being of deep impact in practice, the need for clarity of the new legal provisions is greater than in any other area of regulation. The study proposes their text analysis, emphasizing some shortcomings of the legal terminology used, of the systematization of the matter, but there are reported, in particular, some questionable solutions contrary to the European trends in matters of tort liability. -
The idea of this study has as starting point the „ambiguity” which, under the influence of the current Community and internal regulations, floats over the legal distinction between „designs” and „models”, as well as over their legal nature. Thus, the common definition reserved by the internal and Community regulations for the design and for the model, as well as their alternative or cumulative use in the legal texts convincingly support the existence of this „normative ambiguity”. This „legal reality” is accompanied by the non-existence of some doctrinal concerns for arguing the specificity of designs and of models, mostly by reference of one to the other, but also by reference of these to other kinds of intellectual creation. In fact, as this issue has been approached in the Romanian doctrine, the authors confine themselves, as a rule, only to take over some theses from the foreign legal literature, especially from French one, being less concerned with their logical and legal grounding.
