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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 -
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. -
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.
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The new regulation pertaining to business administration in the new Romanian Civil Code, much more detailed than the previous one, springs from the Civil Code of Québec. In Québec, the relevant legal framework provides for an original configuration of this source of obligations, imposing on it the condition of opportunity of the administration actions initiated by the administrator. Subject to this regulation are also the effects of inopportune administration, which aims at restoring the advantage brought to the person administered, without stating the legal grounds of such obligation, aspect which triggers questions to which this paper intends to answer, visiting, among others, other codification proposals on the law of obligations and relevant doctrine in this matter. At the same time, a theoretical definition is laid down for business administration, more nuanced than those elaborated after the new Romanian Civil Code has taken effect, definition which tends to be closer to the meaning of the new normative provisions. -
Company contract has been a complex issue under the Civil Code of 1864 and the Commercial Code of 1887, and continues to be so under the Romanian Civil Code of 2009. Since rules pertaining to company contract under previous statutes became obsolete and ill-adapted to practical needs and realities, an update was severely necessary in order to tune it with the alert pace of modern legal relations and EU norms. This paper presents the legal definition of company contract under the new Romanian Civil Code, with its advantages and disadvantages, which distinguish it from other types of contracts. Given the monistic approach of the new Civil Code, presently the contract of company is the common law of company law, Articles 1881–1948 of the Civil Code being subsidiarily applied to all companies enumerated by Article 1888 of the Civil Code. In this context, this study analyses the special requirements of Law No 31/1990, considered as a special rule in relation to the general provisions of the Civil Code.
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The author analyses some specific features of the claim for compensation brought by private persons injured by unlawful administrative acts of authority or by public authorities’ refusal to solve claims concerning rights and legitimate interests of citizens. The claim for compensation has an accessory and subsidiary character in relation to the main claim for the annulment of the administrative act of authority, the repair of the damage being conditioned by the annulment of the act or by the obligation of the public authority to solve the claim of the private person. The study points out that the accessoriality relationship between the claim for compensation and the main claim bears consequences with regard to the jurisdiction of administrative courts.
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Based on historical considerations this paper analyses the need for a codification in the area of contraventions and argues in its favour. Taking stock of current issues revealed by relevant legislation and case-law, concrete suggestions are made with regard to the structure and provisions of such a statutory instrument. The author appreciates that a vigorous doctrinal debate would be needed in order to identify the best legal options.
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This article intends to provide an analysis of one of the cases of absolute nullity of marriage, expressly regulated by the Civil Code, i.e. bigamy. After a brief introduction follows the discussion of the sanction of a marriage concluded by an already married person whereby relevant provisions, conditions to be fulfilled for establishing the absolute nullity of marriage in case of bigamy, as well as some aspects pertaining to invoking good faith at the time of concluding the new marriage are taken into account. -
In this study the authors criticize an isolated opinion (the vice of consent of lesion is inapplicable to the individual labour contract) expressed more or less recently in the Romanian legal literature. The provisions of Article 1221 and (limitatively and partially) Article 1222 of the Civil Code supplement the provisions of the Labour Code. On the other hand, Articles 1223–1224 of the Civil Code are completely inapplicable in case of individual labour contract.
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Actul emis de Oficiul Român pentru Drepturile de Autor (ORDA) în vederea convocării părților în procedura arbitrală potrivit art. 1312 alin. (4) din Legea nr. 8/1996 nu are caracterul juridic al unui act administrativ în sensul art. 2 alin. (1) lit. c) din Legea nr. 554/2004. În succesiunea operațiunilor prin care se realizează negocierea metodologiilor la care se referă art. 130, 131, 1311 și 1312 din Legea nr. 8/1996, actul care produce efecte juridice îl reprezintă metodologiile negociate, iar activitățile anterioare, premergătoare, au valoarea juridică a unor operațiuni administrative sau simple operațiuni materiale care pregătesc, însoțesc adoptarea actului producător de efecte juridice. (Înalta Curte de Casație și Justiție, Secția de contencios administrativ și fiscal, Decizia nr. 59 din 10 ianuarie 2013)
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This study has as object the logical and legal analysis of the conditions in which, according to Article 341 of the Civil Code, the incomes from work, the sums of money payable as pension within the social insurance system and others similar, as well as the incomes payable under an intellectual property right are considered common assets jointly owned by spouses. The study also includes analyses relating to the categories of incomes and sums that, under Article 341 of the Civil Code, are considered common assets jointly owned by spouses.
