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In this article, the author presents the procedure of individual complaint of the persons before the Constitutional Court of the Republic of Turkey. According to the Turkish Constitution and to the Law No 6216/2011 on establishing the procedures before the Constitutional Court, this procedure is an exceptional means of appeal which can be used after all the other legal means of appeal have been exhausted. The individual complaint before the Constitutional Court fulfils two basic functions: the protection of the fundamental rights and freedoms of the persons and the protection of the national legal order. -
The abuse of petitions committed by the natural persons is the most common form of abuse of law as the elements necessary to qualify a right as being abusively exercised, namely the subjective element (bad faith) and the objective element (diversion of the right from the purpose, economic and social finality or overcoming the internal limits of the law) presuppose a conduct of the holder of the right related to his mental ability to understand the meaning of the deed, to discern between what is good or bad, legal and illegal. This study analyzes the forms of abuse of right committed by persons deprived of liberty both at the level of courts of law and at the level of the offices of supervisory judges, as well as the psychic attitude of the subject towards the possibility of realizing the right in contradiction with its destination and purpose, and towards the consequences that may represent damages to the person, society or state. Even if the persons deprived of liberty constitute a vulnerable category of persons, the recognition of the right of access to justice, to petition, as well as of the possibility to use them at any time, as an application of the constitutional principle of equality of all persons before the law, does not confer them also the right to exercise them excessively, in a word, to abuse of them. -
On 1 April 2016 there were celebrated 150 years since, by Decree of the Princely Lieutenancy, it had been approved the Regulation for establishing the Romanian Literary Society, with the special mission to determine the spelling, to elaborate the Romanian grammar and to start and develop the Romanian dictionary, thus representing „the act of birth” of the national academic institution. Transformed in 1867 into the Romanian Academic Society, it opened its area of concerns, along with literature and philology, to history and natural sciences, following that, by the Law of 1879, it would acquire legal personality and become „national institute” under the name of Romanian Academy. Over a century and a half of uninterrupted activity, the Academy was the major factor of enforcement of the Romanian spiritual unity, „the vital centre” of irradiation and promotion of the national science and culture. In this context, the law has been and still is at the same time foundation, form of culture, field of scientific knowledge, value of expression of the academic concerns, and the jurists, some of its most devoted promoters. Under the terms of transformation of the university into a setting almost exclusively for transmitting knowledge and skills of training of future professionals of law, the only forum for conducting the fundamental legal research and for the development of the science of law remains the Legal Research Institute of the Romanian Academy. In order to play such a role it must redefine its mission and re-establish its priorities, so as to provide the proper setting for the legal reflection and for the achievement of theoretical projects that should lead to the crystallization of the new Romanian doctrine of the law. -
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Announced in theory, present in practice, and recognized everywhere, „flexible law” is seeking its own accreditation at a doctrinal level. Covering a number of highly heterogeneous normative instruments (directives, advices, charters, codes of conduct, et al.) having as a common element the fact of being imposed not by constraint, but by the adhesion of its recipients, it manifests itself specifically in international law (as „soft law”), EU law (as a method of governance), or internal order (as a lever of achieving the functions of the state). In relation to proper law („hard law”), flexible law manifests itself either as its precursor, in the process of adoption, a companion in its enforcement, or, in certain situations, as a substitute. Knowing diverse national experiences, flexible law presents itself as a factor of simplification and improvement of the quality of legal regulations. -
The law has, undoubtedly, the properties of a fluid. Firstly, the property to shape into the forms they come into contact: the social realities are the ones that should configure it, as François Gény once said, so that their slower or more sudden changing would automatically determine mostly imperceptible, and in some cases, convulsive changes of the legal phenomenon as well. Law is a far too important phenomenon to not be subjected to studying day by day. However, a careful analysis of law has always imposed its division, primarily for teaching, theoretical purposes, but not without having in view the practical consequences as well. Traditional or innovative, classic or revolutionary, this „slicing” into divisions, branches and legal institutions, has undergone, in its turn, plenty of changes over time, being in a state of perpetual remodeling (and remodulation). In the following lines we propose some ideas, with no greater claim than that of presenting a personal opinion, about this phenomenon of division, firstly, and of fusion, secondly, a phenomenon that repeats itself cyclically, as, ultimately, the law also contains in itself a significant dose of history. -
In this study the author analyzes, on the one hand, the scope of application of the provisions of the Government Emergency Ordinance No 34/2014, and, on the other hand, the consumer rights in contracts concluded with professionals which fall within the scope of application of the mentioned Ordinance. We note that the Government Emergency Ordinance No 34/2014 on the consumer rights within contracts concluded with professionals transposes, into the Romanian legislation, the provisions of Directive 2011/83/EU of the European Parliament and of the Council, published in the Official Journal of the European Union, L 304 of 22 November 2011. -
In this study, the author examines whether after 1 October 2011 (when the new Romanian Civil Code entered into force), to what extent the creditor may enforce the shares (portions of the share capital of the limited – liability – company) belonging to its debtor, corroborating art. 66 of the Law no. 31/1990 on companies by Art. 1887 of the new Civil Code. One reaches the conclusion that the enforcement of the creditor on the shares in question is more illusory than real. That is, a number of de lege ferenda proposals are made, meaning that the right of enforcement on the debtor’s shares should change from a utopia into a reality. -
In this study the author, after making certain considerations on the concepts of human rights and world order, in the context of globalization, as well as of the trends of globalization of law, points out to the necessity to undertake some urgent actions in order to proclaim, establish and, mostly, guarantee the human rights and fundamental freedoms worldwide. In the author’s opinion these legal rules which have the consent of all States would represent, along with solving the contradictions between the international economic system with a quasi-global organization and the prevailing political structure of the human society which is at state level, a starting point in achieving a real world order, in compliance with the current stage of the socio-historical movement and with the challenges of the 21st century. -
Personality’s rights are non-patrimonial rights, inherent to the natural person, in the sense that they are directly attached to and inseparable from the real man, and they serve to the free development of his personality. The new Civil Code regulates the following rights of the personality: right to life, right to health, right to physical and mental integrity, right to dignity, right to respect for private life, right to his own image, identification attributes of the natural person, and the right to dispose of oneself. They can be grouped in two categories: rights that protect the human body and its biological functions, and rights that protect moral values. The first category of rights is governed by three principles: the principle of inviolability of the human body (which may suffer certain exceptions); the principle of non-patrimoniality of the human body, and the principle of the priority of interest and of the good of the human being. The rights which protect moral values have a content determined by their relation to a series of generic notions, incompatible with a precise definition, such as freedom, honor, private life, respect, for which reason the Romanian lawmaker strove to contour such notions; as well as by the regulation of some of the deeds which may impair such rights. Some of the personality’s rights may suffer limitations, which are imposed either by the necessity to protect some major public values, or by the exercise of other persons’ similar rights.
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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. -
In the study below, the author examines the regulation of the inheritance right of the surviving spouse in the new Romanian Civil Code, (published in July 2009, but not yet in force), in comparison with the current regulation in this field (the Decree-Law no. 319/1944). In this respect, we note that the new Romanian Civil Code keeps the essence of the previous regulation, to which it adds a series of new elements and aspects realized by the legal doctrine over time. Therefore, the author concludes that the new Romanian Civil Code, “provides a semi-complete, fair, flexible and current regulation in the field of inheritance rights of the surviving spouse”.
