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The new Civil Procedure Code establishes the penalties for each day of delay as indirect means of coercion meant to ensure the performance in kind of the obligations to do or not to do which can not be carried out by someone else other than the debtor. The application of these penalties is mainly carried out at the level of the executional procedural law, being conditioned by the initiation of the enforcement and by the existence of a writ of execution, however the legislator, by the law implementing the new Code, tends to generalize the system of penalties to the detriment of the other legal means with similar function. In this context and under the terms of removal of the comminatory damages and of the civil fines for each day of delay, regulated by the provisions of substantive law contained in special laws, it is raised the question of admissibility of the general use of penalties regulated by the Civil Procedure Code at the level of substantive law, before obtaining a writ of execution. -
Acquiring of the status of full member in the European Union by Romania has also generated the allocation towards Romania of European funds through financing contracts for the purpose of achieving projects of national interest. Considering the ambience of the domestic regulatory framework harmonized with the EU legislation, this study provides an analysis of the legal nature of such financing contracts, as well as of the complex and controversial problems of liability of persons involved in the management of European funds. -
At the same time with the entry into force of the new Civil Procedure Code, according to the authors, the appeal has also made its way into the field of administrative disputes, in addition to the recourse, which is the traditional legal remedy in this matter. This study identifies the problems raised by this new legislative conception, noting the current legislative inconsistencies that impedes the process of application of the objective law and, moreover, generates non-unitary judicial practice. -
By the judgement passed in the criminal case no. 754/2012, the High Court of Cassation and Justice held that, where the provisions of Article 3201 Code of Criminal Procedure are applicable, honest behaviour during the trial, consisting in the admission of having committed the acts retained in the document instituting the proceedings, cannot be considered a legal mitigating circumstance, referred to in Article 74 para. (1) (c) thesis II of the Criminal Code. This interpretation is questionable, because there is a legal difference between the two institutions, which doed not preclude their concomitant application. -
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. -
Given the ambiguity of the legal texts in the Law concerning the public-private partnership addressing the financing of public-private partnership projects, this study endeavors to identify the various ways of using public funds in such projects. It forwards arguments for a restrictive interpretation of the concept of „financing” as used by such texts, proposed to be limited to the construction phase of the project, and also analyses the main legal structures having an impact on public funds, usually guarantees, by which the public partner may provide support to a public-private partnership project. Whilst pleading for the use of such direct of indirect public guarantees, the study emphasizes the need for their accurate identification, including their potential consequences on the public debt and deficit statistic treatment as well as on state aid. -
Legislative changes occurring in recent years in terms of the legal nature of the public procurement contracts were subject to doctrinal debate and generated disputed solutions in the judicial practice. We refer to the definition of public procurement contract as a Commercial Agreement, under Law no. 278/2010 which has amended and supplemented the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts, approved with amendments and supplements by Law No. 337/2006, as subsequently amended and completed. This legislative approach has shown legislator’s inconsistency in the matter, considering that by organic law - the Law of the contentious administrative No. 554/2004 – public procurement contracts are expressly defined as administrative contracts. At the end of July 2012, the National Authority for Regulating and Monitoring Public Procurement has published a draft emergency ordinance designed to bring new amendments and supplements to the Government Emergency Ordinance No. 34/2006. These proposals were successively amended by the issuer, the final form been approved through the Government Emergency Ordinance No. 77/2012. From the point of view of this study, the legislative changes contained in the Government Emergency Ordinance No. 77/2012 regarding the legal nature of the public procurement contracts and, consequently, the courts competent to hear disputes under these contracts are remarkable. -
In this study, the author, whilst analyzing the legal nature of Child Protection Commissions (which are organized and operate pursuant to Law No. 272/2004 on the protection and promotion of children’s rights and the Government Decision no. 1437/2004 on the organization methodology and functioning of the Child Protection Commission), concludes that the decisions taken by such committees are not special administrative jurisdiction acts, but simply unilateral administrative acts that are adopted by a specialized body within the county council or the local council of Bucharest sectors, as appropriate. As regards attacking / challenging these decisions in court, usually, the settlement power falls on the common law courts, and not on the administrative ones.
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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.
