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In this study, the authors intend to examine the institution of international liability, dealing with the issue of the constitutive elements of international liability. In the general international law, liability is a relationship created exclusively between two or several international law subjects. The international liability of a state can only be raised by another international law subject whose international right was infringed. If a state suffers a direct damage (immediate), it can approach the liable state directly in order to obtain the repair. On the contrary, the damage suffered by an individual following the infringement of the international right shall not provide the victim with the right to obtain recovery of damages before the international courts. A state shall only be liable internationally if it is the author of an international tort. There is a tort of the state when: a) a behavior consisting of an action or omission can be assigned (attributed), in compliance with the international law, to the state; b) this behavior represents an infringement of an international obligation of the state. The international doctrine generally acknowledges that the occurrence of these two elements generates the international liability of the state. -
Art. 2 paragr. 1 din Convenþia (europeanã) pentru apãrarea drepturilor omului ºi a libertãþilor fundamentale (în continuare denumitã Convenþia) consacrã dreptul la viaþã al fiecãrei persoane ºi protecþia de care aceasta trebuie sã se bucure conform legii, în politica penalã a statelor membre ale Consiliului Europei. Aºadar, în privinþa dreptului la viaþã statul are nu numai o obligaþie substanþialã negativã, ci ºi o obligaþie substanþialã pozitivã; aºa cum rezultã din jurisprudenþa Curþii Europene a Drepturilor Omului (în continuare denumitã C.E.D.O.), statele nu trebuie doar sã se abþinã de a provoca moartea în mod ilegal ºi intenþionat, dar trebuie sã ia ºi mãsurile necesare pentru protecþia vieþii persoanelor aflate sub jurisdicþia lor1.
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Esenţa principiului error communis facit ius, invocat de subdobânditorul cu titlu oneros pentru a obţine pãstrarea valabilitãţii titlului sãu, constã în faptul cã terţul dobânditor este învestit cu un drept de proprietate pe care însã nu-l primeşte nici de la adevãratul proprietar – cu care nu a contractat, nici de la proprietarul aparent – cu care a contractat, dar care nu deţinea dreptul –, ci direct de la lege. Aşadar, este un mod originar de dobândire a proprietãţii, iar nu unul derivat. Pentru ca o aparenţã sã fie creatoare de drept, se cer a fi întrunite mai multe condiţii, cumulativ: sã existe o eroare comunã şi invincibilã; subdobânditorul sã fie de bunã-credinţã; actul încheiat între proprietarul aparent şi terţul subdobânditor sã fie cu titlu oneros.
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In the above study, the authors make a comparison between the provisions of the new Romanian Civil Code (published on 24 July 2009, but not yet in force) and the provisions of the current code (of 1865), regarding the rights of succession of the relatives of the deceased. After a thorough analysis, they reach the conclusion that the new Code provides a quasi-complete adequate regulation in this matter, taking over the judicious principles established by the current Civil Code, updating the specialized legal language, eliminating what is redundant, de lege lato, and bringing the necessary additions.
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The article intends to examine the changes that the new Criminal Code brings to the matter of the enforcement of criminal law over time, mainly for the purpose of harmonizing the given provisions with the constitutional principles, as well as for facilitating their implementation. From this perspective, one can notice that the new Criminal Code has largely taken over the provisions currently in force, but has eliminated those contrary to the constitutional principles, such as, for instance, the provisions stipulating that the complementary punishments, the educational measures and the safety measures in the new criminal law are always retroactive for public interest reasons or the provisions regarding the facultative enforcement of the most favorable criminal law in the irrevocably judged cases. We also find the introduction among the provisions subject to the principle of the most favorable criminal law of the legislative instruments declared unconstitutional, as well as of the emergency ordinances approved by the Parliament with amendments, supplements or rejected, provided that they were in force during the period stipulated by the law text.
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According to the new criminal regulation, the offence of misleading the judicial bodies preserves some elements of the offence of false accusation, which is currently not provided anymore, but both the constitutive content and the sanctioning system show serious changes.
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In the above study, the author criticizes severely a judgment of the Romanian High Court of Cassation and Justice (the Administrative and Tax Litigations Section), passed on 26 October 2009, explicitly and unequivocally stating that the mentioned court was entitled not to enforce a provision contained in a law in force (namely, art. III of Law no. 262/2009), explaining that the given provision was unconstitutional since it “infringes the right to a fair trial”, although the Constitutional Court of Romania, quite the opposite, had stated the contrary, finding the constitutionality of that legal provision. The author’s criticism focuses on the idea that, according to the Constitution of Romania, only the Constitutional Court is legally competent to give a ruling on the constitutionality/non-constitutionality of a law or a Government ordinance in force (or of any provision included therein), and that the courts (including the High Court of Cassation and Justice) have no such legal jurisdiction in the matter.
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In the above study, the author often criticizes the constant case law of the Constitutional Court of Romania, namely the fact that, on the one hand, the resolution by this Court of an exception of non-constitutionality a posteriori (therefore, after the law or the Government ordinance was adopted and published) is no longer legally possible if, as at the date of the Constitutional Court decision, the law/Government ordinance is no longer in force, being expressly abrogated. Moreover, the Constitutional Court also stated that, in the given situation, the examination of the non-constitutionality of the law shall be made by the courts, no matter their type (therefore, not by the Constitutional Court as well). Proving with arguments that the solution passed by the Constitutional Court is legally wrong, the author also emphasizes the serious consequences of the Constitutional law case law (the perpetuation ad infinitum in the future of the effects of a law, Government ordinance, hypothetically unconstitutional).
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In the above study, the author makes an analysis of the majority shareholder’s right to exclude the other shareholders from the companies traded on a regulated capital market (a right that is generally known under the English name squeeze aut) both in the light of the European Union Directive 2009/25/EC of 21 April 2009, and according to the (Romanian) law no. 297/2009 on the capital market, reaching the conclusion that the exercise of this right serves the interests of minority shareholders as well.
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Examining the issue of the parents’ right to agree to their child’s journey in the country (in Romania) or abroad, after reviewing the legal regulations in this matter, the author reaches the conclusion that art. 18, paragraph 2 of Law no. 272/2004 (“Any journey made by children in the country and abroad shall be made subject to notification and consent of both parents; any disagreements between the parents in relation to expressing such consent shall be solved by the court of law”) provides for situations in which the parents exercise their parental rights together, while art. 30, paragraph 1, letter c of Law no. 248/2005 refers to the situation in which parental protection is divided pursuant to a court order (following divorce etc.). At the end, the author proves that the provisions of the new Romanian Civil Code (adopted y the Parliament and published in the Official Journal of Romania, but not yet effective) do not influence the above-mentioned legal regulations. -
This study examines – critically – the Romanian legal regulations regarding the termination of the term of office for a “local elected official”, which refers to: local advisors, county advisors, presidents and vice-presidents of county councils, the general mayor of the city of Bucharest, deputy mayors and the village delegate, who is also assimilated to local elected officials. Difficulties arise from the fact that the termination – upon expiry or prior to expiry – of the term of office for “local elected officials” in Romania is regulated, at present, directly or indirectly, by four laws, namely: Law no. 393/2004 on the status of local elected officials; Law no. 215/2001 (republished on 20 February 2007) on the local public administration; Law no. 161/2003 on ensuring transparency in carrying out public dignities, public functions and in the business environment, the prevention and sanctioning of corruption and in Law no. 144/ 2007 on the setting up, organizing and functioning of the National Integrity Agency. In order to avoid any difficulties generated by such a legislative system, the unification of regulations in this field is proposed (as well as some amendments to the laws) exclusively in the content of Law no. 393/2009 on the status of local elected officials.
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The article intends to assess the quite difficult but, especially, dramatic issue of the criminal liability of minors and of preventing and fighting juvenile delinquency, starting from the incontestable reality of the phenomenon of offences among young people. It examines the conditions for the criminal liability of minors by means of a comparative analysis of the current regulation and the regulation proposed by the new Criminal Code, emphasizing the evolution recorded in their punishment, from the perspective of the entirely special situation of minors, caused by their psycho-physical characteristics. In this study, a special emphasis is laid on the consequences of the lawmaker’s eliminating the enforcement of penalties to minors on their real reeducation and social reinsertion.
