-
The regulation of the Civil Code on periodic ownership was preceded by the Law No 282/2002 and by the Government Emergency Ordinance No 14/2011, which have transposed the European Directives concerning consumer protection with regard to the utilisation or time-limited use of movable and immovable assets. As a legal modality of the ownership right, the characters of the periodic ownership, although qualified by Article 646 (1) of the Civil Code, which refers to Article 687 of the Civil Code, as a form of forced co-ownership, is delimited by it. The present study outlines these elements of difference, the specificity of periodic ownership as real right, the rights and obligations of the co-owners in the exercise of the prerogatives arising from this quality. Periodic ownership is a particular case of forced co-ownership, of a temporary nature, because several people successively and repetitively exercise the attribute of use, specific to the ownership right, over a movable or immovable asset, at fixed intervals of equal or unequal duration. This form of ownership implies an overlapping of the real right of each co-owner over the entire asset, but whose use is limited during one year to the duration indicated in the ownership title. The critical aspects concerning the relations between the co-owners are cantoned to the provisions of Article 691 (2) of the Civil Code on the sanction of excluding the co-owner who, through his conduct, causes to another co-owner a serious disturbance in the exercise of the prerogatives of the periodic ownership right. -
Unlike the previous Criminal Procedure Code (1968), which briefly provided that the prosecutor must prepare a reasoned proposal of taking the measure of preventive detention of the defendant, the new Criminal Procedure Code regulates in a more detailed manner the proposal for preventive detention of the defendant in the course of criminal prosecution, by introducing the obligation of the prosecutor to indicate the legal grounds. In exchange, the new criminal processual law does no longer provide the prosecutor’s obligation to hear the defendant in the presence of the lawyer of his choice or appointed ex officio, before drawing up the proposal for preventive detention, as provided in the previous Criminal Procedure Code. Under such circumstances, the authors analyze the institution of proposal of preventive detention, by presenting some critical aspects and by proposing some improvements to the new regulation. Key -
În legislaþia românã, oportunitatea manifestãrii procurorului în procedura insolvenþei aparþine în exclusivitate acestuia ºi se înscrie în liniile directoare oferite de art. 45 alin. (3) C.pr.civ. Legea nr. 85/2006 nu prevede obligativitatea comunicãrii Ministerului Public a hotãrârii de deschidere a procedurii, iar procurorul nu este titular al acþiunii în acoperirea pasivului. Autorul considerã cã instituirea obligaþiei procurorului de a participa ºi pune concluzii în procedurã ar asigura o apãrare eficientã a ordinii publice, oferind premisele înfãptuirii unei justiþii plenare, în care atât interesele de ordin privat, cât ºi cele generale ar fi ocrotite. „De lege ferenda”, se propune participarea obligatorie a procurorului la acþiunea în acoperirea pasivului. -
ANDREESCU, MARIUS - Principiul proporționalitãții, criteriu de admisibilitate a cererilor de înlocuire a mãsurii arestãrii preventive. În: Dreptul, nr. 4/2010, p. 169-174. „De lege ferenda”, autorul propune ca în noul Cod penal, la capitolul care reglementeazã individualizarea judiciarã a pedepsei, sã se prevadã în mod expres cã sancțiunea penalã trebuie sã fie proporționalã cu situația de fapt, gradul de pericol social al faptei și scopul legii penale. În acest fel, s-ar garanta nu numai legalitatea sancțiunilor penale aplicate, dar și legitimitatea, justețea acestora în raport cu criteriile prevãzute de lege. Subiect: arestare preventivã; principiul proporționalitãții; noul Cod penal. -
1. ANDREESCU, MARIUS – Constituționalitatea recursului în interesul legii și a deciziilor pronunțate. În: „Curierul judiciar” – nr. 1/2011, p. 35-38. Autorul susține propunerea de lege ferenda ca, în perspectiva unei revizuiri a Constituției, sã se prevadã competența Curții Constituționale de a exercita control de constituționalitate asupra deciziilor pronunțate de Înalta Curte de Casație și Justiție în procedura recursului în interesul legii și asupra actelor juridice exceptate de la controlul judecãtoresc. -
1. ALEXE, IRINA – Aspecte privind mobilitatea înalților funcționari publici reflectate de jurisprudenþa instanțelor din România, în „Revista de drept public” nr. 1-2/2012, p. 90-102. Autoarea, în urma analizei reglementãrilor în vigoare și a jurisprudenței în domeniu, face urmãtoarea propunere de lege ferenda: se apreciazã ca fiind judicioasã introducerea formulãrii “principiul mobilitãții”, cu consecințele de rigoare, în primul rând aceea de a stabili un cadru programat întemeiat pe criterii clare și coerente în aplicarea principiului mobilitãții. -
Currently, under the increasingly intense and diverse interactions between countries, due to the unprecedented mobility of individuals, in space, or to the dynamics of public international law, as such, (for example, in international human rights or international criminal law) the theoretical model that governs the relationship between international law and domestic law has become a topical one. In addition, the existence of several supra-state forms of cooperation, such as the European Union, bring into question the relationship that is being established, on the one hand, between the law of those forms of cooperation and the Member States' national law and, on the other hand, between the former and general international law. In this paper I will discuss the relationship between international law and Romanian domestic law, as regulated by Romania’s organic and constitutional provisions and taking due account of Romania’s EU membership. The paper is structured in three sections corresponding to the general theoretical approaches to the matter (Section II), the legal, institutional and scholars’ approaches (Section III) and conclusions and de lege ferenda proposals; the latter will address both the content of the regulations, as well as some aspects of legislative technique (Section IV). -
The Collective labour contract unique at national level for 2007–2010 was undoubtedly a point of reference in the matter of collective negotiation from Romania, because its contractual clauses established the qualitative accumulations gathered during the conclusion of the collective labour contracts unique at national level, starting with the first contracts concluded after the entry into force of Law No 13/1991 in 1991. Having in view that, under the influence of the Law No 62/2011 (of the social dialogue), the conclusion of the Collective labour contract unique at national level is not permitted, the useful clauses of the mentioned collective labour contract can no longer be applied. In this study it is proposed the emphasis of the essential clauses of the Collective labour contract unique at national level for 2007–2010 and the formulation of a de lege ferenda proposal for their inclusion in the labour legislation. -
In the new Civil Procedure Code, a great number of court decisions remain final in the appeal in tribunals or courts of appeal, and there is no procedural way to fight against illegal or unfounded decisions. Given the judicial realities of our country, it is speculative to believe that the enforcement of the NCPC will automatically stop tribunals and courts of appeal from pronouncing illegal or unfounded decisions. Therefore, it is only natural that an adequate regulation is adopted, by the reintroduction of the action for cancellation as a last remedy for the correction of illegal or unfounded decisions. Although the action for cancellation proved its utility, it was eliminated from the Civil Procedure Code, by the Government Emergency Ordinance no. 58/2003, amending and supplementing the Civil Procedure Code. The parties in the trials for which the decisions remain final in the appeals filed with various tribunals and courts of appeal do not have access to the High Court of Cassation and Justice, and in these circumstances illegal or unfounded decisions are not submitted to the judicial control of the latter. The requirement to correct illegal or unfounded judgements passed by the courts of law is provided by art. 6 § 1 in the European Convention of Human Rights, art. 1 par. 3 and art. 124 in the Constitution, moral rules and the precepts of the Holy Bible, the sacred book of Christianity, according to which all deeds and actions of people must be based on truth and justice. -
The study analyzes several proposals to ensure the settlement with celerity of the civil trial. The authors consider that these are the following: providing the necessary staff; generalization of the process of digitalization of justice and the transition to the „online civil trial”; transferring the competence to settle non-contentious application for certain areas to other authorities; extension of the special simplified proceedings carried on exclusively in writing or even without summoning the parties; pronouncing the judgments in civil matters only after they are motivated; abandoning the verification of the material competence in the stage of regularization; proposal to repeal the procedure for regularization of the application for summons. A very important proposal is the one that suggests that the pronouncing of judgments in civil matters should be made only after they are motivated. The authors consider that it is necessary for the drawing up to be made prior to the pronouncement of the judgment, because the considerations must be identified and formulated before the pronouncement, because they must necessarily be the basis for transposing the law by the act of justice. Another important aspect proposed by the authors is the complete repeal of the regularization procedure in its current form and the establishment of the first trial term in the urgent cases after a period of two weeks from the registration of the application and 30 days later in the case of the other applications, following that the possible measures of regularization be ordered by the judge at the first trial term with the summoning procedure being legally fulfilled, following that, practically, in a period of maximum two months, it will be possible to proceed to the investigation of the trial. -
In the study hereby, the author makes some de lege ferenda proposals with reference to amending/supplementing Article 28 of the Companies Law 31/1990 (republished on November 17th, 2009), text governing the obligations of the constituent assembly of the joint-stock company incorporated by public subscription. -
In the study with the above title, the author examines specifically the problems of the current regulation of the protection of competition on the internal market of the European Union, through the control of concentrations of undertakings, in the light of the provisions included in the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of the concentrations between undertakings.
-
Given that the new General Data Protection Regulation has influenced most of the industrial sectors, new challenges in life science area have also been generated, particularly those regarding the effective protection of the personal data of the patients – subjects to clinical trials. The new changes focus mainly on how data and the rights of the data subjects are perceived by these persons, as well as the controllers and processors. This study aims to identify and determine the impact of this regulation on clinical trials and patient engagement policies, having also into consideration the derogations from the rights of data subjects for the purpose of scientific research. Also, we seek to define concepts such as sensitive data, health data, clinical trial data, the obtained results following the clinical trials, data processing, as well as notions related to the parties involved – either the patients or CROs (contract research organizations) understood through the meaning of the terms of natural person or controller, processor, recipient respectively. We want to clarify to what extent the clinical trials can be included in the scientific research that the Regulation refers to and whether its application in this area makes a distinction between the goals of the research: either the one of profit-making or the one of developing the medical knowledge. -
The system of protection of human rights and fundamental freedoms introduced by the European Convention on Human Rights still raises questions about the interpretation and application of its provisions. In this study, we will focus on the problems concerning: EU accession to the European Convention on Human Rights, the relationship between the CJEU and the ECHR, and we will detail the decision of the ECJ Opinion 2/13 on the draft agreement for EU accession to the European Convention on Human Rights. By the present study we intend to analyze the implications of the future EU accession to the European Convention on Human Rights, given the long history of the protection of fundamental rights. We will start with the way in which the protection of fundamental rights is seen at international level, and then we will analyze how the EU intends to achieve the protection of fundamental human rights. We will bring into discussion the main normative acts in the field, the way in which the collaboration between the CJEU and the ECHR is carried out, pointing out the issue of the primacy of European law over the national one. The study aims to analyze the general concepts recognized in the international law regarding the creation of a better structured legal framework regarding the protection of fundamental human rights and the issue of the primacy of EU law regarding the future accession to the Convention, in particular in relation to the Negative Opinion 2/13 of the CJEU. We will analyze the most important decisions of the ECHR and the CJEU in order to corroborate the theoretical elements with the practical ones. As concerns the research methods, mainly the comparative and the quantitative method have been used, with elements that make reference to the method of sociological and historical interpretation. From the point of view of the research results, it was concluded that, from a doctrinal point of view, there are two sides: the supporters of EU accession to the European Convention on Human Rights, in the context of receiving EU legal personality, but also of inserting Article 6 TEU which provides the obligativity that EU becomes a party to the Convention, and those who oppose, in particular the CJEU, as well as the practitioners and the doctrinaires of the European law who invoke the primacy of European law over national law, but also the issue of organizing the European legal system, by specifying that the CJEU would fall under the jurisdiction of the ECHR, and the ECHR, in its turn, would intervene in the process of „constitutional” development of the EU. -
International treaties on human rights are, in relation to the common law, the most important human rights source of international law. In terms of geography, the international treaties under the cited matter are divided into treaties with universal vocation (UN system) and regional international treaties (European regional level, Inter-American, African and so on). In this study, the author refers to the specificity of the conventional sources within the Inter-American and African system, the Arab and Islamic world and within the CIS area.
-
The Lisbon Treaty is designed to replace the Treaty establishing a Constitution for Europe. Its adoption brings about an improvement of the institutional law system of the European Union, due to the coming into force of the Charter of the Fundamental Rights of the European Union. It was proclaimed by the European institutions (the European Commission, the European Parliament and the Council of the European Union) on the occasion of the European Council of Nice on 7 December 2000 and its wording states for the first time in a single document, on the whole, the social, economic, civil and political rights that all the European citizens can benefit of. -
The aim of the present paper is to cover the main aspects regarding the legal treatment of classified information in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the access to classified information in the course of the criminal proceedings, with a special focus on the lawyer’s access to such information, as well as by providing an overview of the substantial criminal provisions protecting classified information. With respect to the procedural standards, the underlying idea emerging from the detailed analysis of the legislation in force is that currently there is an unjustified difference in treatment within the criminal proceedings regarding lawyers, on the one hand, and magistrates, on the other hand, the former category being prevented from benefiting from an unhindered access to classified information, which directly affects the rights of the defence. As far as the criminal protection of classified information is concerned, the Romanian criminal code incriminates a variety of acts that imply the illicit disclosure of classified information, pertaining to either state or professional secrecy, and are prejudicial to the national security, the state defence as well as some public or private entities, as the case may be. -
-
Thanks to his social status, his activity, the social relationships he develops, interest in technology, etc., the child has acquired a certain legitimacy to be able to make recommendations on the purchase of a good or service. Of course, professionals are aware of the reverse socialization that takes place within family relationships and have begun to develop products that are intended for children or that, through children, can reach the bosom of families, although those do not concern children. The purpose of this study is to prove that any child is a vulnerable consumer, although he has at his disposal countless methods of information. The child is not capable of complex cognitive functions. Being a consumer means not only acquiring skills and technical routines, but also an awareness of real needs and values, something that can only happen with the development of each individual. The vulnerability that is specific to the child is a matter of social status of the skills and resources that protect each individual and carry extrinsic and partially intrinsic aspects. By analysing the European and national legal frameworks on consumer protection, I have tried to identify a clear definition of the vulnerable consumer, as well as what the concept of „vulnerable consumer” is based on. -
The intangible cultural heritage is a crucial factor in shaping the personality and identity of a human being. At the beginning of the 21st Century, faced with the deepening globalization, commercialization, consumerism, technological progress and urbanization, it is necessary to take, without unjustified delays and considering future circumstances, actions for the protection of the intangible cultural heritage. This study presents the genesis, the legal regulations and mechanisms that were developed under the aegis of the United Nations Educational, Scientific and Cultural Organization. The measures taken by UNESCO1 and by the individual states to reach the set targets should follow the spirit of tolerance, empathy, cultural plurality and respect for human rights. -
In this article there have been examined comparatively the provisions of the law in force and those of the previous law, by emphasizing the elements of similarity and of distinction between the two regulations. Likewise, the author has critically examined the provisions of Article 336 (1) of the Criminal Code, also making in this regard de lege ferenda proposals designed to determine the amendment of the current provisions. The de lege ferenda proposal aims to the legislator's abandonment of the provision according to which the moment of consummation of the offence is identified with moment of taking the biological samples, motivated by the fundamental difference existing between the two moments, especially with regard to the criminal liability. The paper can be useful to the legislator, in the light of the suggested amendments, to the practitioners, as well as to all those who show concerns in this field.
-
The archaeological sites – material forms of our past – are a finite and non-renewable resource of knowledge of our history, in a constant state of vulnerability to external factors that can lead to their irretrievable loss. Among these factors, the most destructive one that can be distinguished is the phenomenon of archaeological poaching as a source of supply to the national and international art markets. The illegal trafficking of cultural goods, often also involving activities of laundering of money or even of terrorism, is a widespread phenomenon worldwide. In order to fight it, the real protection offered to archaeological sites and museums, as well as ensuring the effectiveness of the instruments of international cooperation are the most effective means for defending the national cultural heritage. -
Savantul meu coleg D. Dimitrie Alexandresco, într’un studiu asupra art. 951 și 1157 Codul civil, studiu apărut în ziarul Dreptul Nr. 25, face istoricul protecțiunei minorilor la Romani, istoric care este de sigur incomplet, dacă nu și inexact în câte-va puncte esențiale. Pentru ca să urmez întrucât-va pe eminentul meu coleg, nu mă voi ocupa cu protecțiunea copilului nenăscut, care de la o epocă determinată a început a fi protegiat, lucru care a dat naștere maximei cunoscute: „infans conceptus pro nato habetur quoties de ejus commodis agitur”, maximă cu atâtea aplicațiuni în dreptul modern, ci voi trata numai despre mijloacele de protecțiune organisate de dreptul roman pentru minor, luându-l de la naștere și până la vârsta de 25 ani. -
The principle of the fairness of the administration of evidence represents the rule that prohibits the use of any strategy or maneuver which has as its object the administration of a piece of evidence in bad faith or which has the effect of provoking an offence to obtain a piece of evidence, if by these means the dignity of the person, his or her rights to a fair trial or privacy or professional secrecy are infringed. The object of the present study is only the examination of the last of the aspects of the principle of loyalty, as it is regulated by the Criminal Procedure Code, respectively „the entrapment to commit a crime”. We do not intend to make a detailed presentation of the jurisprudence of the European Court in this matter, but only to point out the general principles that should underlie the analysis to be carried out by the judiciary and to exemplify some solutions in judicial practice. Finally, we will try to draw attention to the delimitation between „entrapment to commit a crime” and „entrapment to evidence” and to establish exactly what is the procedural framework in which these aspects can be invoked.
