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Formalism in Roman law prevails in all its branches, starting with the court procedure and ending in the interpersonal relations. Its role was to ensure the validity of consent and the procurement of evidence. The legal act in the Roman law was practically non-existent. The Roman legal documents received the proper form after the practice, according to the existing customs. It was the custom that dictated the form which any instrument meant to produce concrete legal effects, but also future legal effects, had to have. The legal report was formed through gestures and religious formalities, which gave rise to principles that ensured the optimal functioning of the legal system related to the context of that age. The updating of the formalism was required when there was an obstacle in achieving the goals of public and private order. The need to change the private law emphasized by the subjects of a legal relation and imposed by the economic evolution of trade has transformed a formalism that had its origin in religion, into a formalism dictated by current practices. In the current law, the civil legal act is born by the express manifestation of the will of the subjects of law, a will that must take a certain form. The observance of the form is ensured by the procedural formalism imposed by the legal norms in force. The present study analyzes the formalism of the Roman law and its imprint in the formation of the legal act from the positive law -
The study addresses good faith as a uniform, but flexible, multi-faceted concept within contractual relationships. After analyzing the ambivalent character of the concept of good faith, in antithesis to the abuse of law in the form of bad faith and contractual wrongdoing, the study leans on the functions of good faith, which materialize the principle at its institutional and formal dimensions, namely the interpretative function of contracts, the completive, moderating or limitative, and adaptive function. In approaching the contractual illicit and the bad faith, as a basis of contractual liability, the study shows that good faith is a standard in quantifying them, and the legal language of good faith is a supreme norm of the contractual law, in a means of contractual jurisdiction, meant to limit the principle of contractual freedom.
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In this study, the author analyzes the possibility of granting the public judicial aid, according to the national legislation and the case law of the European Court of Human Rights, regarding the bail necessary to be paid in the cases regarding the provisional suspension of enforcement, according to Article 719 (7) of the Civil Procedure Code. Regarding the situation prior to pronouncing the decision in the Case S.C. ECO INVEST S.R.L. and Ilie Bolmadar versus Romania, special attention is paid to the way of transposing the Directive of the Council of the European Union 2003/8/EC to improve the access to justice in cross-border disputes by establishing some minimum common rules relating to the legal aid for such disputes, as well as the jurisprudential reversal of the Case Micallef versus Malta. At the same time, there are emphasized the relevant provisions of the Government Emergency Ordinance No 51/2008 on judicial public aid in civil matters.
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The purpose of this study is to present the Case Loomis v. State of Michigan, settled by the Supreme Court of the State of Wisconsin in the United States of America, on how the right to a fair trial may be affected assuming that the solution is pronounced by the judge, having at his disposal, among the usual elements of fact and of law in a classic trial also a report provided by an artificial intelligence system. The study contextualizes the time and the place in which the case appeared, realizing in its beginning a brief parallel between the characteristics of the American justice system and the European one in the field of fundamental rights, with a marginal incursion in the scope of the principle of proportionality. In this framework, the respective case is presented with emphasis on the arguments used by the judges of the Court, in order to reach the conclusion that the right to a fair trial is not violated insofar as the conclusions produced by the algorithm are used by observing some guiding principles, drawn on this occasion. The conclusion of the study shows that the arguments presented in the North American system can remain valid and can be transposed into the European system, when it will face such a problem. Finally, the final part is intended to be a plea for awareness of the immediate reality of artificial intelligence, which will penetrate more and more in the legal field, including in the judge’s office, as well as for a mental openness towards these new concepts.
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The manner of regulating the contestation of the claim in the payment order procedure, generates a few controversies, indicated by the doctrine related to this procedure. Thus, the first of these concerns the contestation of the claim after the deadline for the submission of the claim is exhausted, in case the debtor does not meet or does not respect the related time limit, namely the admissibility in principle of such a contestation. The answer is affirmative, but with nuances; the claim can also be contested in such a situation, but only by way of pleas of public order, of the plea of inadmissibility due to the necessity to administer some evidence incompatible with the payment order procedure or through defences on the merits, which will be justified only by the evidence administered until the moment when the claim is contested. Operating an analogy of study with the contestation to enforcement, considered as a contestation to title, it is necessary to specify whether the legislator’s generic references to the contestation of the claim concerns the situation of a contestation to the title related to the claim inclusively. The conclusion is that the legislator has used the term „contestation” in its meaning lato sensu, consequently the answer is affirmative. Another controversy concerns the situations when the debtor does not specify his procedural position throughout the procedure, that is, if the judge of the case is authorized to question ex officio the possible reasons that would constitute such contestation to the claim. The conclusion of the study, derived also from the European legislation and judicial practice, is that the answer is still affirmative, but only provided that there is an express regulation imposing such an obligation for the judge of the case, such as in the situation of abusive contractual clauses. In the absence of any reference of the legislator within the regulation of the payment order procedure to the counterclaim, it is necessary to answer whether the institution of the counterclaim, regulated under the common law procedure, is compatible with this special procedure.
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The study raises the issue of the legal relations between the notary public and the client. A contract of provision of services is concluded between the notary and the client, specifying that the services of the notary public are provided by the law and regulated by imperative rules. By the provisions of the Law No 36/1995, Article 28 paragraph 2 c) and by the Norm approved by the Order of the Minister of Justice No 943/C/2005 the legislator established only the lower limit of the notarial fee, the actual level of the fee being determined by negotiation between the notary and the client. The provisions of Article 32 of the Law No 36/1995 have established only the generic right of the notary to charge the fee, its quantum for each notarial service being established under the terms of the contractual relation between the notary and his client.
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Potrivit art. 349 alin. (2) C.pr.pen., instanța poate soluționa cauza numai pe baza probelor administrate în faza urmăririi penale, dacă inculpatul solicită aceasta și recunoaște în totalitate faptele reținute în sarcina sa și dacă instanța apreciază că probele sunt suficiente pentru aflarea adevărului și justa soluționare a cauzei, cu excepția cazului în care acțiunea penală vizează o infracțiune care se pedepsește cu detențiune pe viață. Totodată, conform art. 374 alin. (4) C.pr.pen., în cazurile în care acțiunea penală nu vizează o infracțiune care se pedepsește cu detențiune pe viață, președintele pune în vedere inculpatului că poate solicita ca judecata să aibă loc numai pe baza probelor administrate în cursul urmăririi penale și a înscrisurilor prezentate de părți, dacă recunoaște în totalitate faptele reținute în sarcina sa, aducându-i la cunoștință dispozițiile art. 396 alin. (10).
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Artificial intelligence can be classified into analytical artificial intelligence, human-inspired intelligence and humanized intelligence, and in reference thereto it should be noted that, although computer systems reproduce human emotions and expressions, it is difficult for them to comprise a sufficiently large database so as to be able to express the human feelings of a person at the time of making a decision. Although the predictability of a judicial decision by artificial intelligence may take the form of legal certainty, in criminal matters, however, the data used may not reflect the complete reasoning of the judge, which is composed of a multitude of decision-making factors. Therefore, the authors consider that in criminal matters the decision-making must belong to the human judge, the judge being the one who will decide on the basis of the evidence administered not only with regard to satisfying the objective side of the offence, but especially with regard to its subjective side. -
The amendments and additions to Article 56 of the Labour Code have eliminated the discrimination on grounds of sex established by the Constitutional Court in the Decision No 387 of 5 June 2018 and they reflect the European and national policy of maintaining in service the employees who meet the retirement conditions for old age, but the new provisions of Article 56 of the Labour Code require a relatively complex interpretation, which raises problems in terms of their clarity and predictability and makes their understanding by the subjects to whom they are addressed difficult.
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The article reviews the main features of digitization and its implications in the economic and social field. The technological perturbations on the economy, people’s conduct, medicine, law, psychology and education are significant. The author proposes the establishment of a National technical-legal laboratory, besides a faculty of law, and of a scientific event, entitled „Law and Digitization – Improving Legal Services”, to help improve access to justice in a digitized world.
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In this study the authors intended to investigate the procedural rules specific to the judicial control of the acts issued by the public authorities in the matter of restitution of properties taken over by the State during the communist regime, as well as the processual guarantees enjoyed by the persons concerned for the effective exercise of the right to a fair trial and the right to respect the goods regulated by Article 6 paragraph 1 of the European Convention on Human Rights and, respectively, Article 1 of Protocol No 1 to the Convention. During this scientific process, the authors have identified the shortcomings of the legislation in the matter and have formulated de lege ferenda proposals for complying with the Pilot-Judgment of the European Court of Human Rights in the Case Maria Atanasiu and others against Romania, whereby it has been decided that the Romanian State takes measures to guarantee the effective protection of these rights. The proposed legislative amendments have as purpose to re-open access to justice for the eligible persons, in compliance with the requirements of ECHR law, in the cases where public authorities refuse to resolve their requests for restitution of buildings abusively taken over by the State.
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Over time, the claim for awarding legal costs in the civil trial has not been paid due attention. Starting with 1959, following a decision of the Plenum of the Supreme Tribunal, in the practice of the courts, as well as in the specialized works has been taken over automatically, until it has been imprinted in the collective mind, the idea that the court costs can be claimed at any time until the debates are closed on the merits, and the court may even draw attention to this issue, or they may be claimed separately, even if they were initially requested within the dispute. The present study aims to analyze the legal status of awarding the claim for costs, while giving at the same time the correct legal classification of this claim by reference to the texts of the Civil Procedure Code. Thus, we will show that this claim brought to the justice can not be subject to the discretionary will of the parties, but must be circumscribed by the procedural rigors with regard to filing a claim before the court. In the first instance, the party must accordingly request court costs, respectively by way of introductory application, an objection, an intervention, etc. If it did not do it, as a rule, it will not be able to claim them within that litigation. If it did it, but then waives their request in the initial litigation, wishing to claim them separately, it will be subject to the consent of the opponent. In the redress or withdrawal means of appeal, claiming the court costs is conditionned twice, both in the compliance claim before the court of first instance and in the compliance claim before each court that has examined the case (by way of appeal, objection, etc.). The practical implications of the study are some of the most spectacular, since the party that does not comply with the procedural rigors of the claim for court costs will either be in a position to promote separate action for their recovery or in the event of a final impossibility to recover, in whole or in part, the advanced court costs.
