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The article aims to give a new interpretation of the functioning of the separation of powers principle, starting from the tango metaphor. Within it, music represents the principle (the supreme norm), dance, the gesturing of music, so the principle. The two protagonists of the dance (the man and the woman) are seen as the embodiment of the legislature and the executive. The judiciary is constituted by the dance teacher who is the main pawn in the tango logos, adapting the movements (sermo) to the music (ratio), while giving the framework in which to evolve the two protagonists who improvise starting from the principles. From the combination of music and dance, as ways of social organization, it results happiness. Against the background of a subtle harmony, the tango metaphor can account for the functioning of society, the relationship that is established between the tango partners, between them and music, between them and the dance teacher, but also between the protagonists and the public, shows how it works society as a whole. -
The object of the contract 1 represents an essential substantive condition and validity of the contract and is a subject disputed in doctrine. The doctrinal dispute regarding the definition of the object of the contract generally has its origin in the polysemantic character of the term „object” 2 . Starting from the provisions of Article 962 of the Civil Code of 1864, the legal doctrine 3 has limited the object of the contract to the conduct of the parties established in that contract, to the action or inaction to which they are entitled or by which they are bound. In another opinion 4 it was mentioned that the object of the contract consists in the object of the obligations generated by it, i.e. in the service or services concerning the transmission of a right and a positive or negative fact of the debtor, as well as in the object of these services. The relation of determination between the object of the contract and the object of the obligation follows from the fact that all the characteristics of the latter have their origin in the nature of the object of the contract. In this sense, the current Civil Code removes the inaccuracy of the old Civil Code, which, in Article 964, confused the object of the contract with the object of the obligation. Thus, Article 1225 (1) of the current Civil Code provides that „The object of the contract is the legal operation, such as sale, lease, loan and others similar, agreed by the parties, as it appears from all contractual rights and obligations”. In other words, the object of the contract designates the legal operation through which an obligation is born, modified, extinguished, i.e. a legal relation, the content of which includes the rights and obligations of the parties 5 . The object of the obligation is the service to which the debtor is committed.
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The study brings to attention the distinction, but also the relation between the operation of trust and the contract of trust, as a means of achieving an autonomous patrimonial property with character of destination. After analyzing the substantive, form, content and registration requirements of the contract, as well as the opposability of the assets in the trust property, the study focuses on the significance of the acceptance of the contract of trust by its beneficiary, as well as the acceptance mechanism, when one of the contracting parties is beneficiary. In the analysis of the prerogatives of the trustee’s property right as an effect of the contract, it is emphasized that this right is limited by the achievement of the purpose of the trust, found in the contract clauses and the duration of the contract, after which the trust property is subject to retrocession. The study tends to mark the distinction between the mandatary, term used or suggested by the regulation, and the position of the trustee in the configuration of the contract of trust, given that it concludes legal acts in the interest of the beneficiary and with an impact on the trust property. In regard to the trustee’s obligation to return the trust property at the expiration of the term or the achievement of the purpose of the trust, it is analyzed the distinction between this legal obligation of the trustee and the sale contract with repurchase agreement. The study also focuses on the acts of disposition that the trustee can make on the basis of a proxy, in the process of exploiting the trust property, stating that this right can be exercised only on the components of this property, individually or as a whole, and not on the trust property, which must remain intact, as a fraction of a universality.
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Puțini sunt termenii din vocabularul științelor politice care să fi primit atât de multe definiții și caracterizări, de-a lungul timpului, cum este democrația. Fragmentul din Declarația Universală a Democrației pe care vi-l propun reflecției surprinde două aspecte ale termenului de democrație: unul instituțional, raportat la constituirea prin proceduri electorale democratice a instituțiilor reprezentative ale unui stat, la nivel național și local, și altul funcțional, raportat la puterea reală a poporului și mijloacele eficiente de care acesta poate dispune pentru a contribui, desigur, prin reprezentare, la activitatea legislativă și de control asupra acțiunilor Guvernului. Dacă primul aspect este relativ ușor de realizat, deși cunoașteți dovedite fraude electorale la nivel central și local, cel de-al doilea merită o atenție mai specială, întrucât nu cred că există un cetățean-alegător, grupuri de cetățeni-alegători, care să fie pe deplin convinși că sunt reprezentați, în mod real, în activitatea legislativă și, mai ales, în exercitarea funcției Parlamentului de control parlamentar.
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The action against climate change involves both civil society and public authorities. Putting them in an appropriate relationship is a historic challenge, and the climate paradigm is the context necessary for defining this relationship for the future. The issue of climate change occurs, at the level of public administration systems, at a time of transformations generated by a broad liberal trend at the level of the administrative action and of the administration-citizen relationship, and the generalization of dialogue between administration and citizens is a way to promote some new forms of action, such as the collaborative one, as a model of future administrative conduct. The problems of global warming and of the effects of climate change have imposed the intensification of the movement of association of the public to the decision-making process and the emergence of new forms of manifestation, in the sense of involving citizens in political options with a strong eco-climatic, scientific and technical dimension. Receiving extremely diverse characterizations, some even severe, from „innovation” to democratic „scam”, the public decision-making procedures with the substantial and direct involvement of citizens, such as those exposed, can be a solution to the growing lack of legitimacy of the traditional representative instruments, insufficiently able to meet the requirements of the eco-climatic emergency.
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The refund of the judicial stamp duty, as a result of the admission in whole or in part of an enforcement appeal, is a matter that has generated a non-unitary judicial practice. In this study, the author aims to analyze the way in which the national courts have interpreted and applied the rules governing the appellant’s right to recover the judicial stamp duty, as well as to identify legal solutions in relation to the various hypotheses presented.
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Although we are close to the tenth anniversary of the entry into force of the new Civil Code, the doctrine outlined around the institution of granting the benefit of family dwelling place at divorce has had reservations in providing solutions to some crucial issues for solving this type of applications. At the same time, the courts have frequently come up with contradictory solutions to these issues, however some guiding solutions can be distinguished. The main aspects on which we noted the existence of some divergences have concerned the admissibility by separate way, after the pronouncement of the divorce, of the application for the allocation of the dwelling that served as a family dwelling. Another hypothesis on which we will focus in the present study is that of possession of the dwelling place by the spouses on t he basis of other rights than those expressly raised for discussion in Article 324 of the Civil Code, such as the right of usufruct or the one arisen from the loan agreement. At the same time, we will try to offer several arguments based on which the courts could assign to the non-title holder spouse of the lease contract, under certain conditions, even the dwelling place with special rental regime initially allocated to the other spouse according to the criteria provided by the Law No 152/1998 1 , there being numerous discussions around this subject just before the entry into force of the current Civil Code. The debates behind these divergences are not only of interest to legal theorists, but have strong practical implications, the fate of the entire application depending on the solution offered, thus being essential to establish some stable and predictable rules, especially in a matter where safety should prevail, given the often vulnerable situation of the parties involved in the process. Therefore, the present study tries to offer some adequate solutions for the above-mentioned inconveniences, starting with the analysis of the criteria which the legislator has created for the allocation of the conjugal dwelling place, especially in the higher interest of the minor, following that, in the second part of the study, we would actually deal with the issues mentioned.
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În temeiul dispozițiilor art. 1 alin. (1), art. 8 alin. (1), art. 18 alin. (3) și art. 19 din Legea nr. 554/2004 1 , care reglementează regimul juridic al acțiunii în despăgubiri, revine instanței de contencios administrativ să se pronunțe asupra dreptului la repararea pagubei cauzate, analizând condițiile de admisibilitate a cererii, inclusiv existența dreptului la reparație și modalitatea de acordare a acesteia. Astfel, acțiunea având ca obiect repararea pagubei produse ca urmare a anulării unor acte administrative atrage, în raport cu aceste dispoziții legale, competența instanței de contencios administrativ, potrivit principiului general de drept conform căruia legea specială derogă de la legea generală. „Specialia generalibus derogant” este un principiu juridic ce implică faptul că norma specială e cea care derogă de la norma generală și că norma specială este de strictă interpretare la cazul respectiv. Mai mult, o normă generală nu poate înlătura de la aplicare o normă specială. Fiind derogatorie de la norma generală, rezultă că norma specială se aplică ori de câte ori ne găsim în fața unui caz ce intră sub incidența prevederilor sale, deci norma specială se aplică prioritar față de norma generală, chiar și atunci când norma specială este mai veche decât norma generală. Aplicarea principiului conform căruia legea specială derogă de la legea generală are ca efect înlăturarea dreptului comun de la aplicare. Așadar, incidența acestui principiu înlătură, totodată, posibilitatea coexistenței a două căi judiciare, una pe legea specială și cealaltă pe dreptul comun. (Î.C.C.J., s. a I-a civ., Dec. nr. 1016 din 2 iunie 2020, www.scj.ro)
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Unitatea Teritorială de Analiză a Informațiilor (UTAI) Oradea nu a desfășurat activități de punere în executare a vreunui mandat de supraveghere, în speță, ci doar a transmis cererea organelor de cercetare penală și ulterior a transmis către acestea răspunsul primit de la operatorii de telefonie mobilă. Prin urmare, nu se poate aprecia că aceștia au administrat probe în dosar, ci doar au intermediat, fără a face cercetări suplimentare, transmiterea corespondenței între organul de cercetare penală și operatorii de telefonie mobilă, acesta fiind și motivul pentru care nu aveau nevoie de aviz de poliție judiciară, întrucât nu desfășurau acte de urmărire penală. (Judecătoria Oradea, Secția penală, Încheierea nr. 198 din 10 ianuarie 2020).
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The article presents the interpretation established by the Court of Justice of the European Union of Article 8 (1) (c) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, according to which the notion „arrest warrant”, as set out in this provision, is to be understood as designating a national arrest warrant distinct from the European arrest warrant. From another perspective, there are analyzed the consequences of the Decision in the Case C-241/15 and the effects on the procedure for enforcing the European arrest warrant of the requested person issued by a judicial authority from a Member State of the European Union.
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The completion of the criminal justice activity requires the immediate execution of the final criminal decisions and continuity in the enforcement activity. However, there are also exceptional situations in which the report on criminal enforcement law is suspended as a result of impediments to the execution of the punishment. Such a situation is also the postponement of the execution of the prison sentence or life imprisonment. Postponing the execution of the punishment is not a removal of the punishment imposed on the convict, but only the delay from which it is to begin, being an exception to the rule of immediate enforcement of the criminal judgment. In order to avoid situations of unjustified delay in the execution of the punishment, or even to the abolition of punishment, the legislator provided expressly and limitatively the cases and conditions in which the sentenced person may obtain the postponement of the execution of the punishment. Far from being exhaustive, the present study can represent a supporting element for certain legal or practical clarifications related to the institution of postponing the execution of imprisonment or life imprisonment.
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Starting from the specifics of the action in deficiency in the European Union law, the author pleads for the reconsideration of this action in the Romanian administrative law, as a legal means of stimulating the public administration in exercising the attributions regarding the organization of the law enforcement, so that it can become concretely applicable. In this sense, there are presented the theoretical and practical considerations that converge towards the recognition in our law as well of the defective action in accordance with the provisions of the European Union law, as well as the proposals de lege ferenda regarding the reconfiguration of the legal regime of this action.
