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In the current study, the author examines the novel provisions within the new Penal Code with respect to crimes against life. Thus, one has successively analyses the laws sanctioning: murder, first degree murder, murder upon request of the victim, determining or facilitating suicidal, third degree murder, the murder of the new born by the mother. The comments were exclusively concentrated on the differences between the current regulation of these crimes, and the new regulation to be instituted by the new Penal Code. A more detailed analysis was made by the author with respect to the “Murder upon request of the victim”, which is new in the penal Romanian legislation. -
Considering, on the one hand, a number of projects for the unification of European law, adopted in last decades (Unidroit Principles, Principles of European Contract Law, European Code of Contracts, The Common Reference Framework etc.) and, on the other hand, a series of legal reasoning arguments, the author discusses at length some questionable terminology choices in the new Romanian Civil Code (Law no. 287/2009, published on July 24th, 2009, yet unenforced), for instance: invasion of right to privacy rather than breach of this right; no legal distinction sensed between duty and obligation, between damage and injury; between the object of the obligation and the contract’s subject matter; there are references to the object of the obligation instead of impossibility of provision etc. -
Starting from the contents of the preliminary theses which seem to announce the imminent entry into force of a new Administrative Code, this study proposes an analysis on a double level: on the one hand, by establishing some correct relations both with the future Administrative Procedure Code and with other hypothetical future codes (the Urbanism Code, the Domain Code, the Contraventional Code, etc.), the matter to be regulated by this new Code should be decided: from a minimalist vision (the central and local public administration plus, possibly, the public function and civil servant) to a maximum one (additionally, the same Code is also going to cover the matter of public services, of goods belonging to the administration, of administrative liability respectively), for reasons of pure opportuneness it is for the legislator to delimit this Code from others which he envisages in the more or less near future. On the other hand, we have approached, at the level of legal details, some problems that, de lege lata, do not have a solution at all or have a questionable solution: the matter of cessation by right of the mandates of the mayors convicted to custodial sentences with suspension of the punishment under supervision, of the mayor’s quality of the State's representative, the daring solution of repealing the provisions of the Civil Code referring to the public property and their development in the Administrative Code, establishing a clear distinction, as far as possible, between the liability (to third parties) of the administration from that of its authorized person (a public servant, as a rule), to mention only the most important ones. -
The content of the paper reveals the changes in the E.C.H.R. case law occurred in the matter of interrogation of the prosecution witnesses following the pronouncement of the judgments in the cases Al-Khawaja and Tahery v. the United Kingdom, respectively Schatschaschwili v. Germany. The author considers that by the two judgments E.C.H.R. has returned to each of the three conditions imposed by its own case -law for the use as evidence of „anonymous statements”, establishing the exact opposite of those estab lished by its previous case law on those conditions. At the same time, the author emphasizes that through the analyzed judgments E.C.H.R. has practically radically changed its case law outlined over more than 20 years. Next, it proceeds to the presentation of the grounds retained by the E.C.H.R. in the two cases, after which the author emphasizes the obvious contradictions existing between these grounds and those established by the E.C.H.R. on the same issues in previous cases. Finally, the author points out that, despite the contradictions and inconsistencies shown in this paper, presently the case law Al-Khawaja and Tahery – Schatschaschwili exclusively governs the conditions under which it is determined whether by using the „anonymous” or „unverified” statements it has been violated or not the procedural guarantee written down in Article 6 (3) d) of the Convention. -
From the time of the four Geneva Conventions (1949) and the 1st Additional Protocol to those (1977) till present days, the notion of belligerency has extended and restructured itself. The evolutions of terrorist groups from the national level of organization to transnational level start to raise the question of the legal qualification of those structures from criminal groups to belligerents. Has the terrorist group got beyond the borders of national law and start to acquire a legal personality in the international law of armed conflicts? In the present study we will start from the classical definitions of the international armed conflict, non-international armed conflict, then observe the evolution of those notions under the case law of the international criminal tribunals set off by the United Nations for Rwanda and former Yugoslavia, as well as the Status of the International Criminal Court, all reflected in contemporary legal doctrine. At the end, we will analyse the capacity of the terrorist group as armed conflict generating factor.
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The notion of „principle” has known three approaches throughout its history: ontological (philosophical), logical, and normative. Ontologically, it would mean the primary object of knowledge stemming from the intellectual act, by the procedure of induction, generalization (a form of reasoning), starting from the particular and ending with the general, from facts to concepts. In a logical sense, it is a general proposal induced from particular rules, being a source for deductive reasoning wherein the conclusion follows necessarily premises that are sources of orientation: ideas, facts, situations. Legal logic has a wide content, and it is considered that logical principles denote, on the one hand, a body of rules stemming from a methodic and reflected development, rules ordered systematically, and, on the other hand, the axioms that substantiate a rational structure. This is how principles are linked with the perpetual work of sensibly organizing the law (the activity of legislation). In a normative sense, the principle no longer describes the object or a form of logic, nor does it describe an axiom or a reason-based system of rules, but a legal norm/standard whereby an obligation is asserted, establishing a resource for the legal interpreter. Interpretative adages which relate, however, to formal rules of logical reasoning, may clash and lack any compelling force, being used by the judge in the development of his/her own policy. The role of the principles is to ensure the coherence and harmony of the legal system, since they are the expression of superior values embedded in the spirit of the law. Regarding the content and the extent of the principle of legal certainly, legal literature has identified three levels of approach: pre-judicial legal certainty; procedural legal certainty and post-judicial substantial legal certainty; all of them meet to ensure the „predictability of the law” so that the parties/the litigants have a feeling of certainty. -
The study aims to analyze the situation in the domestic law of the application of the institution of transfer of undertaking in relation to the exigences of Directive 2001/23/EC as interpreted by the Court of Justice of the European Union. The premise of a correct interpretation and application of this institution is the knowledge of the essential aspects developed in t he case law of the Court of Justice of the European Union that analyzes the scope of application ratione materiae of Directive 2001/23/EC, among which are emphasized the distinction made by the Court between labour force-based companies and companies whose activity necessarily involves the exploitation of goods, as well as the autonomous meaning attributed to the notion of „conventional assignment”. Furthermore, the author shows that the regulation of the notion of transfer of undertaking from the domestic law restricts the scope of application ratione materiae of the Directive 2001/23/EC, non-compliant conditions being imposed, such as the transfer of the property right from the assignor to the assignee and the existence of a contractual link between the assignor and the assignee. The analysis of the judicial practice of the national courts and of the opinions expressed in the doctrine shows that a unitary point of view has not been outlined with regard to the possibility of applying the principle of conforming interpretation of the domestic law in order to ensure the full effect of the provisions of Directive 2001/23/EC. In a first opinion, it is argued that the full effect application of the Directive from the perspective of the scope of application ratione materiae can be achieved through a conforming interpretation of the domestic law which allows to leave the contrary internal legal provisions be disregarded, without thereby reaching to a direct application of Directive 2001/23/EC. According to the second point of view, the extension of the institution of the transfer of undertaking over the express normative content of the internal provisions, in the absence of any legal operation of assignment or merger, without having as object the property right, would be an interpretation contra legem. In compliance with the limits of the principle of conforming interpretation stated in the case law of the Court of Justice of the European Union, the conclusion supported by the author of this study is that the conforming interpretation of the national law is an effective remedy for the full application of the provisions of Directive 2001/23/EC. -
In this study, the author makes an analysis of the notion of “consumer” according to art. 6 of the Regulation (EC) no. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (called „Rome I) as compared to the regulation of this notion in the Romanian law (mainly in the Consumer Code – Law no. 296/2004 as subsequently amended and supplemented), emphasizing that the established Romanian law in this matter, although slightly different from the European law (Rome I) does not contradict the European law, but only explains it better and, partially, extends its incidence, and this to the benefit of consumers. -
The Government Decision No 196/2016 has approved the preliminary thesis of the draft Administrative Code. The Government’s intention to give an incentive to the adoption of the Administrative Code, although it is salutary, is not the first. In recent years, several other proposals circulated in Romania for the adoption of an Administrative Code, which however have not been successful, so that, more than 25 years after the change of the political regime in our country, the practitioners, as well as the theorists of the administrative law are confronted with an unsystematized legislation, lacking coherence here and there and generating very different jurisprudential solutions, as well as administrative practice solutions. Within this study, the author intends to discuss some specific issues raised by these theses of the draft Administrative Code, namely: the unity and the ideological and, implicitly, terminological coherence in the administrative law; the organisation of the central public administration, including of its relations with its decentralized structures; the status of the civil servants, as well as the status applicable to the contractual staff of the public administration and the organization, functioning and disputed claims of the public services.
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The present scientific approach has as object the notarial activity and its development between the medieval moment of the imperial or papal authorisations and the era of artificial intelligence. Thus, the author approaches the role of the medieval notary in Transylvania, emphasizing the procedural or substantial aspects of notarial documents, presents the graphic elements of their notarial seals, but also succeeds in analyzing from the same perspectives the activities of the contemporary notary, the impact of new technologies and of the digitalization on this activity.
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The Law No 136/1995 on insurance and reinsurance in Romania did not expressly mention that the insurer acquires a right of regress against the person responsible for causing the prejudice, but only that the former is subrogated in all rights of the insured or of the beneficiary of the insurance. The wording has generated some different interpretations in practice as regards the action of the insurer to the reparation of the prejudice, this being classified either as special action, founded on the civil tort liability, or as action of common law, based on the civil contractual liability. These interpretations have led to the express regulation of the action for regress within Article 31 (6) of the Government Emergency Ordinance No 54/2016 concerning the compulsory motor vehicle insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet.
