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In the research hereby, the author develops and substantiates her viewpoint, in the acceptance that the civil liability for medical malpractice stands for a new civil liability assumption for damage, i.e. neither a contractual, nor a tort liability, but a legal civil liability (derived from the special law, strictly applicable) designed to provide both a more effective protection of the patient and the medical staff. -
The trust that the patient grants to the medicine professionals for applying the prevention or treatment methods corresponding to his health condition, under the lowest risks, depends on correct and complete information regarding his prevention, diagnostic and treatment activities. Actually, the breach of this deontological duty represents an act of betrayal of his trust, as he could not choose the best solution corresponding to his own interests, in the circumstances in which the patient is free to decide about his own fate. From the legal point of view, this breach of duty results in the civil liability incurred for the prejudices caused to the patient. Considered from the perspective of the biomedical ethics, the physician’s duty to inform the patient brings into focus an interesting subject of research: the manner in which the observance of the patient’s autonomy affects the mechanism of adopting the medical decision related to the diagnostic, the care, the treatment or determining him to undergo certain scientific experiments. From this perspective, the study tries to provide a new approach of the duty of information, but this time from the ethical point of view related to the consideration due to the dignity of the patient human being who is so vulnerable and suffering. The selection of the case law solutions rendered completes the exposure of the legal consequences regarding the breach of this duty. -
Public-private partnership in the Romanian law is one way of effective management of public or private property owned by the State or territorialadministrative units that meets a particular need of these entities; its object is the execution of works, supply of products or provision of services. In the current legislative context, the public-private institution finds a new legislative establishment through the Law no. 178/2010 concerning the Public-Private Partnership, as amended and supplemented. In the climate of the new regulations in this area, the present study proposes an analysis of private investors selection procedures, considering that the private investor selection is a crucial procedural step in awarding the public private partnership contract, as it concerns the transparency of public authorities in the execution of the contract and aims at ensuring the protection of free competition in awarding such contracts. -
The person entitled to succession is the person that has the freedom to choose between the acquiring of the title of heir, by accepting the succession, and the denial of such quality, by waiver. The two sides of the successoral option – acceptance of inheritance and waiver of inheritance – both in their sense of subjective rights and in the sense of legal acts must be appreciated and understood in correlation with other notions and institutions, in the first place of the law of succession, and also belonging to other matters of civil law. In this context, there are presented some aspects of regulating the successoral option, which have been interpreted otherwise by doctrine or which have the potential for controversy, among others, as a result of shortcomings in phrasing of some texts of the Civil Code or by failing to observe some relationships they have, as mentioned above, with other legal notions and institutions. -
Law no. 221/2009 regarding political convictions and their related administrative measures issued during the period 6 March 1945 – 22 December 1989 in art. 5 paragraph (1) letter a) sets forth the payment of non pecuniary damages for the above mentioned persons, damages which are owed by the State. Subsequently, according to the Government Emergency Ordinance no.62/2010, the content of art.5 paragraph (1) letter a) of Law no. 221/2009, was amended so that the above mentioned non pecuniary damages were limited to the maximum amount of Euro 10,000 for the convicted person, respectively Euro 5,000 or 2,000 for the spouse or for the Ist or IInd degree descendants. Pursuant to two decisions issued by the Constitutional Court in the year 2010, the content of art. 5 paragraph (1) letter a) of Law no. 221/2009 was declared to be unconstitutional by the Constitutional Court (both the original content, and the amended content, pursuant to 2 decisions of the Constitutional Court). Such being the case, the author considers that following the submission of these two decisions of the Constitutional Court, the entitled persons cannot be granted non pecuniary damages any more, this being also valid for the litigations pending (not being settled finally until the publication of those two above mentioned decisions. -
The role of the notary public is very important in today’s society. Notary services must be performed in good faith, conscientiously and in compliance with all incidental legal norms. Moreover, the assessment made by the Constitutional Court that notaries public are public officials imposes a more rigorous selection on objective criteria, after some tests that may be organized at national level, also given the invalidation cases of locally organized competitions1. However, the notary public profession requires careful attention on behalf of the national guardianship authority in overseeing their careers, so that sanctions are to be imposed to those less prepared, or having reputation problems or incursions into committing criminal acts, and thus the Romanian notary system to be more reliable and increase its quality. -
This study tends to be a partly critical analysis of the provisions of Article 117 of the Civil Procedure Code, and also an approach to bring to the attention of „doctrinarians”, „judges” and, especially, of the „legislator” the existence of a legislative gap in respect of the exclusive territorial jurisdiction of the courts in the situation that „disputes referring to real rights concern two or more estates located in the territorial districts of different courts”. -
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. -
The author raises for discussion a series of legal issues related to the proper interpretation and application of two cases of cessation of the individual labour contract, regulated by the Labour Code, namely: – the cessation de jure of the individual labour contract pursuant to Article 56 (1) c) of the Code (cessation de jure on the date of the cumulative fulfilment of the standard age conditions and of the minimum contribution period for the compulsory pension); – the dismissal determined by the dissolution of the position held by the employee (Article 65 of the Labour Code). -
This study examines the issue of the joint security of creditors over the debtor’s patrimony in the light of art. 2324 of the current Romanian Civil Code (Law no. 287/2009, republished on July 15th 2011 and entered into force as at October 1st 2011), with a special regard concerning the mentioned issue in case of establishment of patrimonies of affectation over the joint security of creditors. -
In this article, the authors analyze the legal rules of the Romanian law, with reference to those of the European Union and having regard to the national and European judicial practice, as well as the legal provisions in the comparative law on the interdiction to dismiss the pregnant employees. They point out to the inconsistencies in the national law and to the insufficient regulation, which creates confusions in the practice of the employers and of the courts, they note that our legislator did not make a full transposition of Directive 92/85/EEC and, unlike the law of other countries, it does not indicate all (exceptional) situations where the dismissal of the pregnant employees might still occur.
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The interdiction of the pignorative contract is a traditional solution for the Romanian law and corresponds to a real need to protect the debtor. However, this study attempts to prove that the solution is presently in disagreement with the legislative policy established by the new private normative order that encourages the diversification of the guarantee mechanisms. Presently, the function of this prohibition would rather be a theoretical one, not to affect the classical physiognomy of mortgage in the continental law system; but, in a legislative system which expressly establishes legal figures such as the sale with repurchase option or the sale with reservation of title and which seems to allow lawful transfers as a security measure, the interdiction becomes formal and it excessively complicates the situation of the participants in the legal circuit.
