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În cazul în care clientul este o persoană juridică atât încheierea contractului de antrepriză, cât și recepția trebuie realizate de organele de administrare ale respectivei persoane juridice, având în vedere că exercitarea capacității de exercițiu se realizează prin intermediul acestor organe, astfel cum se prevede prin art. 209 alin. (1) C.civ -
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.
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The present study proposes for analysis some of the implications of the pandemic generated by the SARS-CoV-2 virus in the matter of the property right and not only, following to consider the property right in its broad sense, derived from the ECHR case law in the matter. As concerns the research hypothesis, the author starts from the premise that the inclination towards martyrology manifested throughout the history by our country determines that some particularly restrictive measures be adopted also in the context generated by the Covid-19 pandemic, the most often without a solid theoretical foundation. It is also considered, as a research hypothesis, that there is currently a trend worldwide towards authoritarianism and interventionism from the state government, which is reflected in the measures taken during this period in order to prevent the spread of the respiratory virus.
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The present analysis is justified by the challenges generated by the regulation of the normative framework of public power intervention in the management of some new social realities, with a direct impact on the state-citizen relations, in the context of the COVID-19 pandemic. Undoubtedly, some measures established by the Law No 136/2020 on the establishment of some measures in the field of public health in situations of epidemiological and biological risk, taken most often with celerity, will be subject to the control of legality of the courts of law. It would be absurd for acts that ultimately affect fundamental rights and freedoms not to be subject to the means of appeal and not to pass through the judge’s filter, the latter being the one who will, actually, decide on the fairness of the measure adopted. At the boundary between the analysis of the legality and the appropriateness of the measures adopted by the competent authorities of the state, the court of law will have to rule so that both the citizen, viewed individually, and the community feel safe in front of a threat that humanity never faced before. From this analytical perspective, the authors intend to address the issue of the possibility to invoke in court the exceptions of illegality in the context of the provisions provided by Article 17 of the Law No 136/2020.
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The interpretation and the application of the provisions of Article 31 (3) and Article 60 of the Labour Code have led to the existence of a non-unitary judicial practice and to the expression of some divergent positions in the doctrine as regards the applicability of the temporary prohibitions on dismissal in case of termination of the individual labour contract at the initiative of the employer, during or at the end of the period of probation. In a first doctrinal and jurisprudential orientation it is argued that Article 60 of the Labour Code is not applicable, because we are not in the presence of a dismissal, but of a separate case of termination of the individual labour contract at the initiative of the employer. The second opinion argues the thesis according to which the termination of the individual labour contract at the initiative of the employer during or at the end of the period of probation is also a case of dismissal, the legislative derogations aiming only at simplifying the dismissal procedure during the period of probation, and not at removing the temporary prohibitions on dismissal provided by Article 60 of the Labour Code.
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The study analyzes the initial version of the first sentence of Article 426 (5) of the Civil Procedure Code, according to which the judgment had to be drafted within maximum 30 days from the date of pronouncement. In the author’s opinion, such a time limit ensured the achievement of one of the fundamental principles of the civil trial, respectively, the right to a fair trial, in an optimal and predictable time limit, as provided by Article 6 (1) of the Civil Procedure Code. In the version of the Law No 310/2018, the first sentence of Article 426 (5) of the Civil Procedure Code was amended, in the sense of granting the possibility to extend the drafting time limit, over the initial one of 30 days from the date of pronouncement. Thus, for well-grounded reasons, this time limit may be extended by 30 days, at most twice. In the author’s opinion, the total current time limit of 90 days for drafting the judgment is not able to ensure a reasonable time limit for the completion of the trial and should return to the version existing prior to the amendment by the Law No 310/2018, respectively, the time limit of no more than 30 days from the date of pronouncement.
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Simplification and debureaucratization, in many cases, indeed, lead to a positive result. However, the complexity and apparent bureaucratization of some institutions and procedures, in many cases, have a well-defined, useful, even necessary role. The elimination of functional and strict requirements may drive the expected rationalization but an undesirable adverse effect: dysfunctions and legal uncertainty. These ideas can be best illustrated by the recent amendment of the Law No 31/1990 on companies, through Law No 23/2020 for the simplification and debureaucratization of the transfer of shares („social parts”) and the payment of the share capital. Unfortunately, in recent years, the limited liability company has become a subject of experimentation for different improvement attempts, without noticing that companies’ legal regime is an organic whole. Most of the time, reforms are well-intentioned but distorted by enduring normative realities. They also distort the existing law: as is currently the case with share capital and shares transfer.
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In ipoteza în care s-a realizat un transfer electronic al unei sume de bani ca urmare a solicitării primite din partea beneficiarului sumei respective, atunci între părți a intervenit un contract de împrumut, restituirea sumei poate fi solicitată doar pe calea unei acțiuni personale întemeiate pe respectivul contract, iar nu pe calea unei acțiuni întemeiate pe îmbogățirea fără justă cauză. (Curtea de Apel București, Secția a III-a civilă și pentru cauze de minori și de familie, Decizia nr. 62 din 26 ianuarie 2021)1 .
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We are witnessing tremendous progress in the fields of biology and medicine, which consist the possibility to take human cells, tissues and organs for the purpose of their transplantation into another subject’s body, genetic engineering operations, medically assisted human procreation and many other such revolutionary techniques. All of these have proven to be two-edged weapons: on the one hand, they can be used to save lives or to help some couples who, under normal conditions, cannot procreate to give birth to the much-desired children and, on the other hand, they can turn into threats to the human genome or to the social cohesion. It has become necessary for man himself to be the object of legal protection, and, at the same time, a new category of things has emerged, namely the biological products of the human body and the elements detached therefrom, which are intended to be used for therapeutic or research purposes. Thus arose the problem of the legal qualification of these things, which also raised the issue of the existence of a relationship between the subject of law and his body. The doctrinaires are divided into two camps: one that considers that between the subject of law and his body, qualified as a thing, there is a legal relationship of property and another that claims that the human body is the person himself. The qualification of the human body as a thing, the transformation into things of some of its products and of some elements detached therefrom, as well as the possibility of capitalizing on some personality rights, such as the right to voice and the right to image, are part of a process which was called the reification of the person. It is a constantly evolving process which has already included the controversial gestation for another as well. The present study is devoted to the identification of the dangers generated by the qualification of the human body as a thing, with special regard to the gestation for another. -
The cases that justify a home search are still the subject of important controversies both in doctrine and especially in practice. Also, the delimitation between the situation in which the criminal investigation agents enter a person’s home in order to carry out a home search and the situations in which the police agents are obliged to enter a home to fulfil their duties is of ten extremely sensitive. It is precisely these controversies that often lead state agents to be reluctant to enter a private space in order to avoid being accused of committing a crime. We hope that this study will prove to be a useful tool in identifying those hypotheses in which it is really necessary to resort to a home search as well as the criteria for delimiting the search and other institutions of criminal procedural law.
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As a result of the measures taken at the level of the Member States in order to combat the COVID-19 pandemic, the statistics show that the number of teleworkers has increased and, at the same time, telework can become an „endless job” with negative effects on the mental and physical health condition of teleworkers. In this context, at the level of the European Union, it was appreciated that it is necessary to secure the labour relations of teleworkers by unification of the legislations of the Member States in terms of the right to disconnect. The implicit way of regulating this right, which also exists in Romania, does not create an adequate protection for teleworkers. Exercising the right to disconnect implies a clear delimitation of the working time and of the rest time and the obligation of employers to monitor and measure the daily working time provided by teleworkers, as it results from the case law of the Court of Justice of the European Union. The role of the social partners is essential for the implementation of the right to disconnect and appropriate individual information measures must be taken in order to ensure that the employee is sensitized and made aware of the risks associated with permanent availability. Artificial intelligence creates the premises for telework to evolve into smartworking, which gives the teleworker full autonomy in choosing the place where he performs work.
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Making the due observations regarding the legal content of Article 6 of the Law No 143/2000, republished in 2014, the authors came to the final conclusion that Article 6 of the mentioned law contains three distinct incriminations regarding the high-risk drug trafficking. Thus, Article 6 (1) of the Law No 143/2000, republished, includes the crime of high-risk drug trafficking, representing the medically unnecessary prescription of such substances by a doctor. In paragraph (2) of Article 6 of the same law it is incriminated the high-risk drug trafficking, by releasing such substances from pharmacies on the basis of a recipe that includes a prescription that is not medically necessary or is falsified. In paragraph (3) of Article 6 of the same law, the high-risk drug trafficking is incriminated, by obtaining such substances from a pharmacy based on a fictitious medical recipe. In conclusion, the authors state, if a drug addict doctor prescribes to himself high-risk drugs on a recipe without being medically necessary and obtains them from a pharmacy, he will commit two crimes in real concurrence, namely the one provided in Article 6 (1) and the one provided in Article 6 (3) of the Law No 143/2000, republished.
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În cazul în care asigurătorul nu-și îndeplinește obligația de a preciza motivele refuzului de despăgubire, atunci datorează penalități de întârziere de la data expirării termenului de 30 de zile, care începe să curgă de la data solicitării de acordare a despăgubirilor formulate de persoana prejudiciată. (Curtea de Apel Pitești, Secția a II-a civ., Decizia nr. 498 din 17 mai 2021)
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The study examines the possibility of bringing into a limited liability company as a social contribution a good subject to a conventional right of pre-emption. The right of pre-emption is linked – by its nature, as well as by the regulation of the Civil Code – to the contract of sale and gives a preference – at an equal price – to a certain buyer, designated by law or by contract. Failure to comply with the pre-emption cancels the contract made with the third party and the pre-emptor becomes the acquirer if he makes the price available to the seller. The bona fide third party is guaranteed for eviction by the seller. The contribution in a limited liability company does not make a sale although it produces a transfer of ownership from the contributing partner to the company, because the partner does not receive a price but a participation in the company where the contribution is made. Therefore, the contribution of a good affected by a right of pre-emption cannot be refused to the receiving company by the Trade Register Office, on the ground that against it (the company) – acquiring third party – a preference for acquisition can be invoked by the conventional pre-emptor; this, even when the right of pre-emption is accepted against an offer of alienation.
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After a summary examination of the mechanisms that develop the unilateral and conventional resolution, the author finds that the specific formalism established by the Civil Code for achieving the objectives of the pacts agreed by the parties is – in some situations – difficult to fulfil, in the context in which the partners do not know or cannot rigorously follow the steps required by the delay procedure. The uncertainties that the mechanism can produce in special conditions are observed and, then, practical solutions are suggested, starting from the premise – generally accepted – that the commission pact is itself a subsequent and accessory convention to the fundamental contract.
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The study begins with defining the pre-contractual period and with revealing its importance in the process of forming the contracts by free negotiations or, as the case may be, by conventionally organized negotiations. The deontology of negotiations for the formation of contracts is also defined. It follows from this definition that, mainly, the content of the deontology of free pre-contractual negotiations is made up of the obligations with value of limits of the freedom to negotiate. These obligations or limits are of two types: some of them are legal, being expressly provided by law, by imperative norms or, as the case may be, by dispositive norms, and others implicit. At the core of these obligations is the mandatory legal obligation of the negotiating partners to comply with the exigencies of good faith. Good faith is a proteiform concept or notion, a standard with the value of a general principle, flexible and open, which makes it possible to adapt it to the concrete circumstances and conditions of the formation and execution of each contract. Thus, in the matter of concluding contracts, good faith governs any pre-contractual negotiations, whether they are free or are conventionally organized. Moreover, this obligation is expressly, clearly and imperatively established in the texts of Article 1183 of the Civil Code, being an application of the general principle of good faith in contractual matters, established with special force in Article 1170 of the Civil Code, corroborated with Article 14 of the Civil Code, which concerns the exercise of any right and the execution of any obligation. Being a complex notion, a concept with a proteiform structure and flexible in its content, good faith is the source of the origin and of the existence of the other rules and obligations that make up the content of the deontology of free negotiations for the progressive formation of contracts. From among these obligations there are analyzed the following: the obligation of pre-contractual information, the obligation of confidentiality, the obligation of counselling, the obligation of prudence or abnegation, the obligation of exclusivity, the obligation of coherence and the obligation of cooperation. The author tries to argue that some of these obligations, especially the implicit ones, have as a foundation and source, in addition to the general obligation of good faith, also the principle of contractual solidarism.
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This research, analyzing in detail the decisive historical moments for the institution of the notary public, emphasizes the importance of preventing the legal disputes. The authors assume the preference for avoiding a legal dispute as compared to its settlement, keeping and declaring publicly the admiration for the professionals who assist or represent the litigant on the daring and difficult road to „justice”. Briefly passing the medieval period of the presence of the notary public in Transylvania, emphasizing the importance of the papal notary or of the prince’s chancelleries, insisting on the period of formation of Greater Romania and then of the legislative reform imposed after the Great Union, the article identifies the acts and draft normative acts in this matter, which emphasize the usefulness of the profession, the superior professional training of the notary public and the trust that the citizen or the state, regardless of the arrangement, had and still has in the professional notary. The entire research emphasizes new documents, draft normative acts unknown to the general public and it finally defines conclusions, which demonstrate both the permanence of the profession, the role of justice of the peace of the notary public, and his consistent contribution to achieving the „preventive justice”.
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Cross-border private life is under the rule of legislative changes occurred in the European law and in the national private international law. The property regimes of the international couples benefit from parallel regulations – the Regulation „matrimonial regimes” and the Regulation „registered partnerships”, for the states participating in enhanced judicial cooperation, the national law respectively, for the other Member States. Although they have different sources (the marriage, the registered partnership), the matrimonial regime and the partnership regime have multiple areas of convergence (the role of the will of the parties in determining the law of the patrimonial regime and in designating the competent court of law, the objective location of regimes, the most connecting factors). At the same time, the elements that differentiate the property regime of the spouses and of the partners configurate the specifics of the couples’ unions and the instruments of achieving the predictability and security of the civil circuit with an element of extraneity.
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Enforcement in kind of the obligation to do resulting from a synallagmatic promise to contract cannot be enforced in kind, a situation which determined the legislator to identify a substitute means to replace the actual enforcement and to produce the desired effects in the patrimony of the contracting parties. The present study aims to analyze the substitute remedy of the judgment replacing the contract from the perspective of the local judge, who is facing in the process of solving such requests with a series of specific procedural and substantial impediments. Aspects such as the legal nature of the obligation to enforce, the prescription of the substantive right to action, the referral to the arbitral tribunal, the legal nature of the action filed, the modality of designing the operative part of the judgment and others similar are key points of the study, and their analysis tries to determine such an understanding from the courts of law of this specific and special mechanism among the contractual remedies. -
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Potrivit art. 52 alin. (1) C.pr.pen., instanța penală este competentă să judece orice chestiune prealabilă soluționării cauzei, chiar dacă prin natura ei acea chestiune este de competența altei instanțe, cu excepția situațiilor în care competența de soluționare nu aparține organelor judiciare, iar conform alin. (2) al aceluiași articol, chestiunea prealabilă se judecă de către instanța penală, potrivit regulilor și mijloacelor de probă privitoare la materia căreia îi aparține acea chestiune. Conform alineatului (3) al art. 52 C.pr.pen., hotărârile definitive ale altor instanțe decât cele penale asupra unei chestiuni prealabile în procesul penal au autoritate de lucru judecat în fața instanței penale (cu notă aprobativă).
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The aim of this study is to point out the way in which transnational spaces exert their influences on the international legal order and the national legal ones. Theorizing transnational law opens the way of such demarche. Therefore, the overview of some schools of transnational law offers the opportunity for understanding the link between transnational spaces, transnational legal orders and transnational law. The transnational spaces "Mitsubishi" and "FIFA" evolve in transnational legal orders; the latter legal orders inspire the scholars to theorize actively the transnational law itself. Such theorizing may help us to be conceptually equipped in front of future transnational spaces. -
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In this study the author analyzes, from a double theoretical perspective – legal and politological –, the option of the constituent legislators from 1990–1991 for the semi-presidential republic, as a form of separation and balancing of the three powers in the state. Based on a relevant bibliography and on the parliamentary debates within the Constitutional Commission for the drafting of the Constitution and of the Constituent Assembly, the author submits to scientific reflection not only the points of view and arguments raised for discussion in the Constituent Assembly, but also the spirit of the constituent legislator referring to the type of political regime to be enshrined and defended by constitutional norm. There are presented, from the perspective of the constituent legislators, the positive and negative valences of the semi-presidential political regime. After many debates, the Constituent Assembly opted for the semi-presidential republic as a form of government after the overthrow of the old regime in December 1989. The author states that the legislators opted for a semi-presidential model of functioning and balancing powers which should preserve the role and the equal weight of the governing public authorities and which was, in its distinctive features, „very close to the classical parliamentary regime”. What the fathers of the 1991 Constitution wished to avoid – and this is clear from the parliamentary debates in the Constituent Assembly – was the institutionalization of some mechanisms and tools for exercising and balancing powers, which would allow in the future the President of the Republic to prevail in the actual political game, by subjecting the other public authorities. Therefore, the Constituent Assembly of 1990–1991 enshrined the institution of the President of Romania as a mediating factor in the governing mechanism, as well as in the conflicts existing in society, and not as a decision-making authority for governing the country. The author points out that, in the three decades of semi-presidentialism, the powers assumed in the governing process by the President of the Republic have exceeded sometimes the constitutional framework prescribed by the Basic Law, which has fuelled and is still fuelling various proposals to correct the current constitutional framework.
