-
The professional civil liability insurance of physicians is perceived as an additional pecuniary charge of those who want to practice, however, given the increasing number of complaints against some acts of medical malpractice and the moral damages in high quantum granted by the courts to the injured parties, in reality it becomes a real means to protect the property of these professionals. The occurrence of an error in conducting the professional act is possible at any time, which is why a special emphasis is given to taking ex ante measures in order to manage the possible materialisation of an act of malpractice. Such a prophylaxis measure is the negotiation for concluding an insurance contract for professional civil liability, which provides protection for a wide range of risks, compensates several possible types of damage, establishes the limit of the insured amount as high as possible. The plurality of the professional civil liability insurances significantly increases the degree of patrimonial protection of the insured. -
The construction of the Romano-Germanic family law system is an interesting phenomena build around Roman law, which became a principle or a norm of thought for the European juridical thinking, and also around the law of Germanic people who colored the juridical European life and determined the process of codification. Thus, the article addresses the interesting issue of the combination process between Roman law with the law of the Germanic people, indispensable for the understanding of the Romano- Germanic family law system and for underlying the differences between this system and the common-law system. This is an important process, considering that a considerable part of the juridical systems of the world are founded around the family law system. -
The law branches constitutionalization issues – therefore, also of civil law – came up acutely in Europe after the Second World War, initially in the Federal Republic of Germany and then shortly after, in France and after 1990 in Romania. This study examines the issues mentioned noting that the term of constitutionalization of the law branches is the fundamental human rights effect on the legal system of each State. -
In the present article, the author analyzes twenty-four judgments of the European Court of Human Rights pronounced in the cases regarding the Revolution of 1989, by which it was established that Romania violated, mainly, the procedural side of Article 2 (right to life) of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms. The author also identifies the advantages and disadvantages of the procedure by which the Committee of Ministers of the Council of Europe supervises the enforcement by Romania of those judgments. Finally, the article aims to assess the impact that the judgements of the European Court of Human Rights have had in recent years on the conduct of internal investigations, i.e. the so-called „File of the Revolution”. -
The present study addresses a topic surrounded by increasing heated debate in the Romanian legal jurisprudence, namely the legal regime of the exception of unconstitutionality and the impact of such legal instrument on ensuring the constitutional order. The first part of the study explores the citizens’ access to constitutional justice, as designed both in the American model and in the European model. Further, the solution adopted in the Romanian constitutional system, as part of the European model of constitutional justice, is outlined. The analysis subsequently deepens the configuration of the a posteriori constitutional review in terms of setting forth the distribution of attributions with respect to this type of review as well as the nature, content, effects, and legal regime of referrals to the Constitutional Court of Romania dealing with exceptions of unconstitutionality. -
This second part of the study addressing the legal regime of the exception of unconstitutionality and the impact of such legal instrument on ensuring the constitutional order focuses on the admissibility conditions of requests to refer an exception of unconstitutionality to the Constitutional Court of Romania as well as the grounds for finding an exception of unconstitutionality inadmissible. In this context, there is strong emphasis placed on divergent case law approaches, which seems symptomatic for a certain „eccentric” tendency of construing the long-standing type of constitutional review enshrined in the Romanian Constitution. The conclusions of the study suggest the need for giving careful consideration to the manner of tackling such referrals to the Constitutional Court so as to remain in line with the structural requirements relating to the constitutional review as enshrined in our fundamental law. -
The author makes a comprehensive and dense analysis of the exception of non-performance which, in his opinion, falls within the system of remedies for non-performance of contracts. At the beginning of his scientific speech, he has proceeded to a broad presentation of the notion, origin and foundations which justify the existence and the application of this important legal means, which is available to any party of a contractual relation, the content of which is formed of reciprocal and interdependent obligations. Likewise, he points out that, unlike the legislative state existing under the influence of the old Civil Code, currently, the exception of non-performance is expressly regulated, by general provisions, in Article 1556 of the new Civil Code, taken over in their essence from the German Civil Code, which entered into force on 1 January 1900. Having the provisions of the new Civil Code in this matter as legislative reference points, this study presents a vast debate on the scope of application, on the conditions of existence, on its own and specific mechanism of operation, as well as on the effects which this important remedy for non-performance of contracts produces between the contracting parties and to the third parties. The findings and the conclusions of the analysis have allowed the author to retain and to express the elements and the own features of the legal regime and of the functions specific to the exception of non-performance, based on which, ultimately, he proceeds to its delimitation from other related legal mechanisms, such as the legal compensation and the right of retention. -
Publicăm mai jos hotărârea Tribunalului Ilfov, dată în procesul dintre Societatea tramvaiurilor și Ministerul de interne, cu prilejul aplicărei legei din 18 Decembrie 1911, și anume părerea motivată a majorităței (d-nii N. Algiu, președinte, și C. Bossie, judecător) și aceea a d-lui judecător I. G. Manu.
-
The new Civil Procedure Code, under the impulse of the case law of the European Court of Human Rights, has established for the first time, in the Romanian law, a procedural means intended to be an effective remedy for unjustified tendencies to delay trials: the contestation regarding the delay of the trial. The present approach was occasioned by a recent decision of unconstitutionality regarding the application of the provisions of Article 524 (3) of the Civil Procedure Code. In the introduction of this study, the author makes a general delimitation of the contestation by other procedural means, stating that it can be qualified neither as means of appeal, nor as a civil action or as a special procedure. The author emphasizes the contestation’s nature of procedural incident and of means to remove any obstruction in the settlement of civil cases in an optimal and predictable time limit. The control of constitutionality carried out by the Court concerns a very concrete aspect of the competence to settle the contestation. Through the analyzed decision, the court of constitutional control has appreciated that the settlement of the contestation by the panel notified with the settlement of the main action is likely to affect the objective impartiality of the court. In the present approach, the author considers such an action of the court of constitutional control as being judicious, but expresses reservations regarding the solution of attributing the competence to settle the contestation to the higher court. In justifying this point of view, the author notes also the existence of other similar procedural means the settlement of which is given, however, in the competence of a panel of the court empowered to judge the main action as well. On the other hand, the settlement of the contestation by the superior court is not likely to provide celerity in its settlement.
-
We are researching the mechanism of proof necessary for the application of the sanction of the automatic exclusion of statements obtained through torture or other ill -treatment contrary to Article 3 of the Convention. The topic has not yet been addressed in Romanian law, although it is of indisputable importance for the practical application of the sanction. Proof to a high standard of ill-treatment is essential to the normative force of the sanction. The difficulty of proving ill-treatment is the main impediment to its application in judicial practice. The resulting problem is solved by the European Court of Human Rights through a mechanism of proof that manages the legal consequences of uncertainty and does not lose sight of the requirement to find out the truth. This mechanism has three main components: The first is the requirement of an arguable claim about the ill-treatment, which is similar to the formal burden of proof (the burden of adducing evidence) in common law, with the difference that it is not imposed on a particular party, but is met if information about ill-treatment comes to the attention of the authorities in any way. The second is the obligation to effectively investigate this claim. The third is the substantial burden of proof or persuasive burden, which must be met to a certain standard of proof. Ill treatment must be proven by the party alleging it to the standard of proof beyond a reasonable doubt, but this standard can be met by corroborated presumptions. We present some typical presumptions applicable in situations frequently encountered in practice. Under Article 6 of the European Convention on Human Rights, the requirements of the fair trial may justify derogations from these general principles. For the automatic exclusion of statements, two cumulative conditions must be verified: the lack of an effective investigation and the real risk of ill-treatment. -
The generation of public procurement directives1 adopted in 2014 supplemented the number of exclusion grounds from the contract award procedure, adding, inter alia, the hypothesis from Article 57 (4) (d): „where the contracting authority has sufficiently plausible indications to conclude2 that the economic operator has entered into agreements with other economic operators aimed at distorting competition”. The respective exclusion ground has been regulated in the public procurement directives as an optional ground, being however provided for the Member States the possibility to transpose it into national laws as a compulsory ground. This regulatory modality, which inexplicably restricts the scope of incidence only at the conclusion of agreements, although competition can be affected by other methods, and which allows different transpositions by the Member States, has led many doctrinaires to react critically to the prospect that such an important exclusion ground generate a relatively narrow and non-unitary practice at Union level.
-
It is necessary in the Romanian criminal procedural law to differentiate the conditions for the exclusion of derivative evidence from the conditions for the irradiation of nullity in continental law and to move them closer to the criteria of the fruit of the poisonous tree originating from the United States of America. We adapt these criteria and other criteria from foreign law systems to the context of Romanian law through the standards of the European Court of Human Rights. One of the conditions for excluding the derivative evidence is that the infringement from which it derives requires the exclusion of the resulting evidence to ensure the fairness of the proceedings. The derivative evidence has the capacity to convey the effect of the violation of the rights of the defence, the right to privacy or domestic law on the fairness of the proceedings, but in such situations the unfairness of the proceedings must be established on a case-by-case basis. The unfairness can be automatic if the infringement concerns Article 3 of the European Convention on Human Rights or consists in entrapment by law enforcement officers. The consequence is the automatic, absolute or relative exclusion of derivative evidence, depending on the nature of the infringement. The derivative nature of the evidence is determined quasi-automatically in the case of entrapment. In other cases, it must be concretely established, on the basis of the conditions of the causal link between the infringement and the evidence: the effect of the primary evidence and the effect of the unlawfulness on obtaining the derived evidence. The conditions for the exclusion of derivative evidence have consequences for its applicability. The sanction is not applicable when the primary evidence is not obtained illegally, but is inadmissible by its nature, because in this case the unlawfulness is missing. This condition is met in the case of acts such as arrest, therefore the exclusion of derivative evidence is applicable. The effect of the infringement is transmitted by means of the stress test in the case of early exclusion, occurs directly in the case of a continuing infringement and must be analyzed, mutatis mutandis, in the case of alternative means of proof concerning the same evidence. Since in the case of the irradiation of nullity according to the continental model the effect of the primary evidence is irrelevant and the effect of the unlawfulness is established in the abstract by law, the sanction is distinct from the exclusion of derivative evidence.
