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In Romania, Article 5 paragraph 1 of Government Decision no. 250/1992 (which usually applies only to the personnel budget units) provides that employees who missed work because they were on sick leave throughout the calendar year are not entitled to the holiday leave corresponding to that year. We emphasize that this (exceptional) provision is not found in the (Romanian) Labour Code (Law no. 53/2003, republished on May 18, 2011). On the other hand, Article 7 paragraph 1 of the Directive 2003/88/EC of the European Parliament and of the Council provides for the right to annual leave of any employee, without exception, as the case law of the European Court of Justice states that this is a principle of European social law. So being, the author concludes that Art. 5 paragraph 1 of Government Decision no. 250/1992 can no longer be applied (to the budgetary personnel); however, through an interpretation consistent with the Directive, the employees who are not part of the budgetary personnel due to the direct effect of the European norm (Directive 2003/88/EC) benefit from the provisions thereof, even if the directive has not yet been transposed into Romanian legislation, especially as, in terms of this discussion, is not contrary to the Romanian Labour Code. -
The author examines the concept of „seniority in magistracy according to the applicable laws (Law no.303/2004 regarding the statute of judges and prosecutors) by referring to the broader concepts of seniority at work, respectively, seniority in a specialty.
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This paper aims to examine the issue of renunciation of inheritance, valence of the right of succession option in every aspect that it involves, to reveal the novelties brought by Law.287/2009 on this matter, and to assess on the usefulness and timeliness thereof.
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The entry into force of the Civil Code leads to significant changes in the existence and manifestation of the right of first refusal, by explicitly enshrining the right of legal first refusal, and the right of conventional first refusal, on one hand and secondly by extending the scope. The emergence of new regulations requires consultation of French regulations, doctrine and practice in these matters so as to achieve an overall understanding of the concept, its functionality and role, and also an analysis of the effects of these provisions on the doctrine and domestic practice.
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Brokerage is an activity which plays an important role in the economy and is exercised in various areas thereof, such as trade, insurance, transport, etc. Despite the importance of this activity and the large number of brokered legal relationships, the first brokerage contract regulation is found in the Civil Code (Law no. 287/2009) which entered into force on October 1, 2011. The brokers are professionals and their goal is to bring together other natural or legal persons to conclude certain contracts specific to the economic sector they operate in. Brokers are third parties to the agreement between the two parties brought into relationship and have only the right to receive the established remuneration as far as the brokered agreement is concluded. In terms of the right to remuneration, the fulfillment of the obligations undertaken by the parties in the brokered contract is irrelevant.
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This study analyzes a series of correlations between the current Civil Code (entered into force on October 1, 2011) and the legislation relating to intellectual creation (works, related creations thereof, databases, inventions, industrial drawings or models, trademarks and geographical indications). In this respect, following a series of considerations concerning the legal terminology in this field, the paper discusses the patrimonial intellectual property rights on the works and trademarks that each of the spouses registered, as well as on scientific or literary manuscripts, drawings, art and invention projects and other similar property, as well as on the revenues due under an intellectual property right. Finally, it draws some considerations related to private international law matters on the legal protection of intellectual creation.
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The cessation of the natural person’s existence shall result in a series of consequences, such as the succession law, the personality rights, and the natural person’s respect and subsequent to his/her death and so on. This study examines the cessation of the natural person’s existence and its consequences, in the light of the provisions of the applicable Romanian Civil Code (Law no. 287/2009, as republished on 15 July 2011 and come into force on the 1st October 2011), pointing out the new regulations in the matter, as compared to the previous laws (into force until the 1st October 2011).
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Prevention and fight against cross-border offences specific to organized crime shall be a major aim assumed by the European Union, an aim which has become imperative in time because of the proliferation of criminality in the matter and implicitly of the high degree of social danger of these categories of criminal offences. The study exposes a comparative analysis of the European Framework normative act, as compared to the provisions contained in the national internal laws, the author revealing that the Romanian criminal law is present interest, and in these circumstances the Romanian legislator shall not operate any amendments for the transposition of this normative act in the Romanian law. Beforehand, this subject represented the subject matter of certain different investigations in the field of judicial cooperation in the criminal matter among the Member States, concretized in studies and items published in specialty journals or international conferences, where the need for the harmonization of laws was pointed out among the Member States. Likewise, this study exposes also certain critical remarks related to certain rules contained in the European normative act, which, according to the author’s opinion, should be supplemented. Finally, this study is distinguished both by the comparative examination of the Council Framework Decision 2008/841/ JHA of 24 October 2008, with the provisions of the national internal law, and by the critical formulated remarks. -
This study examined in a comparative manner the provisions of the Council Framework Decision 2008/675/JHA of 24 July 2008 compared to the Romanian internal provisions related to taking into consideration the criminal convictions decided in another European Union Member State, in the circumstances in which in another Member State a new criminal lawsuit is being initiated against the same individual, but for different facts. The investigation is important since the above mentioned European normative act is classified in the broad range of measures taken for the purpose of the harmonization of laws in the field of judicial cooperation in the criminal matter within the Member States, and the Romanian laws have not been adjusted yet to the European legislative system. Based upon the investigation carried out by the authoress, it results that both the examined European normative act and the internal laws in the matter have certain lacks and for this reason their amendment and supplement is required. The essential contribution of the study shall consist in the examination of certain judicial rules and the identification of certain situations which have to be regulated either by supplementing the European normative act, or by the adoption of another instrument, the same situation being valid as regards the Romanian laws, as well.
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This study proposes to highlight the evolution of the international criminal court, from the establishment of ad-hoc courts, respectively the International Criminal Court for the former Yugoslavia and the International Criminal Court for Rwanda and up to the daily activity of the International Criminal Court, from the perspective of a very sensitive aspect both from the political and judicial point of view: the criminal liability of remarkable leaders, being responsible for the design, management and control of criminal activities committed during the military conflicts and submitted to trial in these courts. In the content of the study, the author points out the legislative and doctrine-related difficulties which the international judicial bodies faced, the judicial formulas that these bodies chose or created in their action of the application of justice, as well as the current and future orientations of the judicial practice of the International Criminal Court.
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According to the opinion of the author of this study, the periodical verification, during the trial, upon the receipt of the criminal file, but also at time intervals of maximum 60 days, of the legality and validity of the measure of preventive arrest of the defendant, shall be carried out by the court, no matter whether the warrant of preventive arrest was executed or not. Failure to perform this obligation during the trial, even for the non-confined defendant, shall lead to the rightful termination of the preventive arrest.
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This article proposes to examine certain aspects related to the incompatibility of the criminal investigation bodies and of the prosecutor within the criminal lawsuit. The authors take into consideration mainly the incidence of incompatibility cases in the stage of preliminary acts, emphasizing the case of incompatibility set forth in art.48 paragraph (1) letter d) of the Criminal Procedure Code. Through their scientific undertaking, the authors try to demonstrate that incompatibility concerns, to the same extent, both the stage of criminal prosecution, and the stage of preliminary acts. Likewise, the scope of the above mentioned incompatibility case and the decision related to its prosecution are examined from the perspective of the provisions of the (European) Convention for the protection of human rights and fundamental freedoms and of the case law of the European Court of Human Rights, as well as in the light of the provisions of the new Criminal Procedure Code.
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In the general context of the biodiversity preservation and of the protection of nature, an important issue shall remain that related to the animals’ rights, as a way of defense and preservation of this essential component of biodiversity. The author reveals that recognizing and guaranteeing these rights shall remain, however, a process in full development, extremely difficult and complex, which supposes to take into consideration certain different values: ethical, biological, environmentally friendly, legal, and so on. Its current stage of development is the result of certain overlong evolutions, is characterized by certain aspects and expresses a series of trends of future developments. However, the continuous and most of the times improvised adjustments and readjustments feed the legislative chaos and implicitly, a contradictory case law in the matter.
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The diplomatic activity of the states may have a highly positive part in the normal course of the development of international relationships, so that certain disputes or other negative consequences may be prevented in fields of common interest, such as: the observance of the right to self-determination of the states, the limitation of environmental pollution, the correct usage of natural resources, the fight against terrorism or the enforcement of international treaties.
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Trying to integrate the precautionary principle in the law of torts is a challenge that took the author back to the origins of tort law: responsibility and its etymological, philosophical and juridical roots. The findings of this intellectual endeavor envisage the expansion of tort law towards new dimensions of time, space and human relationships. With a shift of perspective, from the past towards the future, tort law reinvents itself by facing uncertainty, by reforming its mathematics and rediscovering its guiding principles. The goal of this study is to establish the principles and conditions of preventive tort law, the civilian tort law expression of the preventive and precautionary principles.
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The mechanism of constitutional review plays an important role in the development of the normative system. It prevents the Parliament and the Government to adopt unconstitutional laws or ordinances and, at the same time, it stimulates them to edict normative regulations in accordance with the provisions of the Constitution. In what concerns the legislative omissions, the Constitutional Court of Romania is not competent to modify or to supplement the provisions under review, following the classical theory of ‘negative legislator’. Despite of a vast case-law that reflects this rule of conduct, a new and more flexible approach appears to be more effective in correcting the constitutional deficiencies. Pointing out the lack of constitutionality due to certain legislative omissions is what brings the Constitutional Court of Romania closer to the other European jurisdictions of constitutional review.
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The new Criminal Code, adopted by Law no. 286/2009, sanctions the fact of the clerk who claims or gets sexual favors, in order to accomplish an action in compliance with his job duties, or opposed to them, or standing on or taking advantage of his authority or superiority over the victim, arising from the title he holds. -
In the new context of legislation, the procedure of administrating evidence by lawyers or by legal advisers may represent an alternative to the classical method of administration by the court of evidence, increasing the chances of solving the dispute amicably. The procedure of administrating the evidence by lawyers or by legal advisers will be held according to a program approved by the court, in which the deadlines are set for administrating the evidence, taking into account the volume and complexity of them.
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The new regulation in the civil matter, as represented by Law no. 287/2009 on the Civil Code, adapts quasi-totally the institution of the acceptance of the inheritance. In this context, this study intends to examine the problem of the acceptance of the inheritance, a valence of the law on succession option, in all the matters it comprises, to reveal the novelties brought by Law no. 287/2009 in this matter and to assess their usefulness and opportunity.
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Law no. 202/2010 on certain measures to accelerate lawsuits’ settlement introduces into the Criminal Code, by art. 741 of the Criminal Code, a series of provisions in favor of the charged person or of the defendant who has committed certain economic offences and covered the damage in full, until the settlement of the cause of action in the court of the first instance. The author considers that these provisions could be construed as certain legal and real attenuating circumstances, however having a special regime, which often generates difficulties related to the interpretation and enforcement in the courts’ practice. However deemed as unconstitutional in May 2011, the provisions of the above-mentioned article are being enforced regarding the offences committed until its expiry date, pursuant to mitior lex principle. -
The value competence in the criminal matter represents a form of material competence, whose non-observance is sanctioned by absolute nullity. In this article the author describes theoretical and practical aspects of competence depending on the value criterion and carries out a comparative examination between the current and the future criminal and criminal proceedings regulation of the phrase of „very serious consequences”. Likewise, the author identifies possible solutions to unify the judicial practice, considering that the requirement of the predictable nature of law and the principle of judicial equal treatment require the establishment of the competence depending on its value by reference to the time of occurrence of the material damage due to offence and to its real value.
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At the crossroads of general regulations concerning both public and private property in the newly enacted Civil code, of specific rules concerning the concession of public assets or the exercise by the local public authorities of their powers relating to the administration of public and private domain of the administrative-territorial units as well as of even more specific provisions in the public-private partnership law, the legal regime of assets involved in public-private partnership projects requires detailed attention. Designing and understanding such legal structure combining old and new regulation may contribute to the sucessful application of regulations concerning public-private partnerships.
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In this study the author debates – in the light of the current Code of Civil Procedure and of the new Code of Civil Procedure, published in 2010, but not yet enacted, if in the actions regulated by Law no. 18/1991 (as republished) there must be or not be introduced, even ex officio, all the persons entitled to lodge the applications for the re-enactment of the ownership right over a certain given land fund.
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In this study, the author analyzes the essential changes that the year 2011 has brought with respect to the dismissal of the trade union leader under Law no. 40/2011 (amending and supplementing the Labour Code), and also under Law no. 62/2011 regarding social dialogue. At the end of the analysis, the author concludes that these changes are both in accordance with the Romanian Constitution, as well as with the applicable European regulations.
