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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insurance for civil liability for the prejudices caused to third parties by vehicle and tram accidents, which has repealed the Law No 136/1995, but which does not have a law for adoption yet. -
In this article, the author considers that the option of the legislator for the monistic system regulating the private law relations, adopted by the new Civil Code, following which the commercial relations have become civil legal relations, is an error. It is further submitted for analysis the proposal to repeal, within the normative acts implementing the Civil Code, the provisions by which the names specific to the commercial law have been replaced by names specific to the civil law. -
One of the forms of the forced joint ownership on shares is represented by family memories, the legal regulation consisting in Articles 1141–1142 of the Civil Code. Among the problems that rise on the legal status of these goods, a particular interest consists in the inclusion in this category of goods with a special economic value, and also the possibility to claim these memories from the one who unjustly holds them.
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Respecting equality of rights, as well as obligation of non-discrimination, assumes taking in consideration the treatment that the law provides to those to whom it applies during the period in which its regulations are in force, legal treatment that cannot be different. This paper presents a very serious problem to be debated, for the resolution of which the solution consists in the analysis of the constitutionality and/or deficiencies of the law in relation to Article 3 of Law No 76/2012 for the implementation of Law No 134/2010 on the Civil Procedure Code, in particular in the situation of the Court being subject to time limitation in a suit in respect to Article 46 (1) of Law No 10/2001 regarding the legal status of buildings abusively appropriated between 6 March 1945–22 December 1989 (by which the suspensions can last indefinitely without becoming outdated, in the regulation of the old Civil Procedure Code). Further to be verified if the principle of non-retroactivity of civil procedure law – referring to the civil action being subject to time limitation in a suit – is compatible with Article 6 of the ECHR Convention that guarantees the right to a fair trial, and if individuals who are judged under the old law are discriminated against in relation to those who are judged under the rule of the new law and to which the privilege special time limitation in a suit within 10 years applies.
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This study aims to both emphasize the specificity of employment law amidst other fields of law from Romania and also contribute to the promotion and support the thesis of its autonomy. The formula of conception and drafting of the paper privileged the development of a concrete and detailed analysis over the studies of several authors, regarding the question whether certain legal institutions, characterizing employment law, can be construed and applied in light of the contractualism principle, specific to civil law. Essentially, we argued that certain rights, belonging to workers, i.e. the rights regulated under the law and applicable collective labour agreements, are not negotiable in light of Article 38 of the Labour Code. In addition, we argued that the dismissal legal regime is imperative, thus forming part of „the public social order”, as French scholars define this concept. Consequently, this qualification impedes, from a legal standpoint, all waiver in relation to the employers’ obligations of invoking and proving the existence of a legal and valid dismissal ground.
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In this article the author intends to present from a constitutional perspective the legal nature of the institution of the Public Ministry, as it was configured in the texts of the Basic Law and analyzed in the specialized doctrine. There are analyzed, in detail, the place and the constitutional role of the Public Ministry as institutional structure of the judicial authority, as well as the role and attributions of the prosecutors’ offices in conducting the criminal investigation.
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The aim of the present paper is to cover the main aspects regarding the legal treatment of classified information in the Romanian criminal legislation by presenting, from a critical standpoint, the current regulation of the access to classified information in the course of the criminal proceedings, with a special focus on the lawyer’s access to such information, as well as by providing an overview of the substantial criminal provisions protecting classified information. With respect to the procedural standards, the underlying idea emerging from the detailed analysis of the legislation in force is that currently there is an unjustified difference in treatment within the criminal proceedings regarding lawyers, on the one hand, and magistrates, on the other hand, the former category being prevented from benefiting from an unhindered access to classified information, which directly affects the rights of the defence. As far as the criminal protection of classified information is concerned, the Romanian criminal code incriminates a variety of acts that imply the illicit disclosure of classified information, pertaining to either state or professional secrecy, and are prejudicial to the national security, the state defence as well as some public or private entities, as the case may be.
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Rațiunea vulgară ne spune că judecătorul espus electivităței timpurare nu poate avea principala sa însușire, aceea a independenției, garanția imparțialităției sale. Temerea și dorința, aceste două mobile cari au o înrâurire atât de mare asupra acțiunilor noastre, vor aduce o egală atingere libertăței morale a judecătorului, vor fi o piedică stăruitoare a îndeplinirii misiunei sale sociale.
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In this study we intend to make an analysis of the contestation to the insolvency condition, namely the processual means that may be used by the debtor against whom an application for opening the insolvency procedure has been filed. In the light of a rich judicial practice in this area, we consider it appropriate to compare the legal provisions found in Article 72 of the Law No 85/2014, as amended and supplemented, with the jurisprudential interpretations, in order to better understand this means of defence made available to the debtor by the legislator. Thus, we will observe the nature and the conditions in which the debtor’s right to contestation may be exercised, the reasons which can be invoked and the evidence that he can use to demonstrate the lawfulness of his contestation, as well as the legal effects and consequences determined by this procedure. -
The study presented by the author is a subject matter of acute timeliness, especially from the perspective of the fact that the immovable assets do not fall within the scope of some unique rules on their sale, since there are specific legal provisions in relation to different categories of immovable assets and the place where these are located. The paper analyzes the contract of sale of different categories of real estates, such as the lands, the buildings and related land, the lands located inside built-up area, the agricultural land located outside built-up area, as well as the forestry lands, emphasizing the particularities of each type of sale. A special place within the study is occupied by the examination of the legal rules applicable to the sale of the lands located outside built-up area, the conditions in which such real estates can be acquired through sale, the persons who may act as buyers, including the foreigners, the stateless persons and the legal persons of the nationality of other state than Romania. Likewise, there are emphasized the specific phases of exercising the pre-emption right of the co-owners, lessees, neighbouring owners and of the state in case of the sale of the types of real estates analyzed, as well as the sanctions applicable in case of the violation of the rules for the exercise of the pre-emption right in this matter. The study outlines the field of action of the future research, based on the legal doctrinal opinions expressed in the researched space and on the personal views of the author, wishing to form a bridgehead for further developments.
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This paper proposes an approach of the evolution in time of the Paulian action, from the origins to the current regulation. Underlining the historical reference points of this action contributes to a better understanding of the current form of legal regulation, which knows changes of substance as compared to the one we find in the Roman law.
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In this article the author intends to debate, from the perspective of the constitutional texts, developed in the Law No 303/2004, the complex problems of the status of prosecutors, especially since the legal nature of the Public Ministry is not definitively clarified, the legal texts, including the norms written down in the new Criminal Procedure Code, failing to configure the position of the prosecutor’s offices between the executive power and the judicial power. If, from the point of view of the constitutional role, the prosecutor is closer to the Executive (he permanently defends the general interests of society, the rule of law, as well as citizens’ rights and freedoms), from the point of view of the involvement of prosecutors in the activity of administration of justice of the courts of law, they share similarities with the judicial power, without being, however, part of it. From this perspective, the author analyzes, among others, the constitutional grounds of the status of prosecutors and their independence, shows why the prosecutors can not benefit from irremovability, presents the content and character of the authority of the minister of justice over the prosecutors, as well as the issue of incompatibility of the members of the Public Ministry.
