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The study tries to identify, with jurisprudential examples, the situations in which the moral rights of the author no longer have the desired finality at the time of regulation, being used in this sense historical perspectives and comparative law perspectives. In a first part it is presented the evolution of the moral rights from the case law and doctrine to the enactment. The second section analyzes, from a jurisprudential perspective, the effectiveness of the right to respect the integrity of the work, concluding that the diversification of the modalities to create works that can be protected by copyright has exceeded the relevant regulation. A final analysis concerns the situation of exercising the right of withdrawal in the case of written works. The conclusions bring proposals to improve the mechanism of functioning of the author’s moral rights. -
The 1995 UNIDROIT Convention in Rome established a minimum body of common legal rules for the protection of cultural heritage. The essential rules of the Convention are: 1) the possessor of a cultural object which has been stolen shall return it; 2) access to justice by filing a request with the court or other competent authorities of the Contracting State where the cultural property is located, for its restitution; the possibility for the parties to submit their dispute either to a court or other competent authority or to arbitration (Article 8); 3) the right of the bona fides holder of the stolen cultural property to be paid, at the time of restitution, a fair compensation; the correlative right of the paying claimant to request reimbursement from another person (Article 4).
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Undoubtedly, the most frequent contract used in practice is the sale and purchase contract, through which the alienation and acquisition of the property right and of other real rights is achieved, outlining the essential instrument through which the legal circulation of goods is carried out. The consent gives expression and materialization to the free will of the individual to contract and pre-contract, to assume a series of rights and obligations, to enter into legal relations. In this context, encountered with a special frequency in the current socio-economic reality – the preparatory agreements, as anticipatory manifestations of the consent in the matter of the sale and purchase contract, involve the same rigour of the conditions necessary for the valid existence of the consent. In all cases, what brings all these legal figures together into the patterns of a single legal institution is the main purpose pursued by the parties or at least by one of them, the one to enter, in the future, into a contractual legal relationship that gives full sati sfaction to the interest shown. As a consequence, the expression of the agreement of will determined by consent has known a double externalization, first through the previous form – the pre-contract – and subsequently through the contract itself. These two different moments, the period between them and the way in which they are legally related reflect some particularities and issues worth to be analysed in the broad spectrum of legal relations between persons.
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The study analyzes the way in which the High Court of Cassation and Justice – the Panel for the settlement of the appeal in the interest of the law ruled on the unitary interpretation and application of the provisions of Article 472, Article 473 and Article 491 of the Civil Procedure Code, in the sense that the object of the incidental appeal or review, respectively the provoked one, may concern a part of the judgment of the court of first instance or of the court of appeal that was not challenged with a main appeal or review. In the opinion of the supreme court, it was considered that the provisions of Article 491 (1), Article 472 (2) and Article 473 of the Civil Procedure Code are not conditional on the filing of the incidental appeal/review or of the one provoked by the invocation of some grounds of appeal/review that concern only the provisions of the challenged judgment that were criticized by the main appeal/review, considering that the reasons of the incidental or provoked appeal/review may tend to annul the judgment challenged under any aspect that is of interest to the respondent declaring an incidental or provoked appeal/review. The main argument for adopting this interpretation is the premise of regulating the incidental appeal/review.
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Considered indisputably as a keystone in any constitutional architecture based on respect for the fundamental rights and freedoms, the concept of human dignity presents certain difficulties as regards the effective legal consequences of its enshrinement in the positive law. It can remain a simple object of worship of a purely rhetorical adoration in the constitutional discourse or it can be depreciated, by instrumentalization, in view of some simple or minor objectives. In addition, the role that human dignity plays in the intellectual system of today’s secular civil religion should not be underestimated. This article briefly highlights these issues, with illustrations from the practice of some constitutional courts (the Federal Constitutional Court of Germany and the Constitutional Court of Romania) and from the debates in the specialised literature.
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The authors criticize the Decision of the High Court of Cassation and Justice No 13/2017 pronounced on appeal in the interest of the law, which had as its object the interpretation and application of the provisions Article 469 (3) of the Criminal Procedure Code which is called the Judgment of the request for reopening the criminal trial. The Constitutional Court decided that the decision of the High Court of Cassation and Justice No 13/2017 violates the right to a fair trial and the right to defence of the person.
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Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think.
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Potrivit art. 208 alin. (1) C.pen., fapta celui care, în mod repetat, urmărește, fără drept sau fără un interes legitim, o persoană ori îi supraveghează locuința, locul de muncă sau alte locuri frecventate de către aceasta, cauzându-i astfel o stare de temere, se pedepsește cu închisoare de la 3 la 6 luni sau cu amendă. De asemenea, la alin. (2) al aceluiași articol se prevede că efectuarea de apeluri telefonice sau comunicări prin mijloace de transmitere la distanță, care, prin frecvență sau conținut, îi cauzează o temere unei persoane se pedepsește cu închisoare de la o lună la 3 luni sau cu amendă, dacă fapta nu constituie o infracțiune mai gravă.
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This paper analyses judicial limits of property in national legal context, where this kind of property limits are relatively young comparing to the legal limits, which are clearly delimited. The study begins with brief comparative law on similar English, French, and Canadian regulations, continuing by presenting the doctrinal divergence on the foundation of civil liability for abnormal inconveniences of good neighbourhood. The study shows different points of view from doctrine on the fundament of civil liability for causing inconveniences by exceeding the reasonable boundaries of neighbourhood. The paper focuses on differentiating between abuse of right, tortious civil liability and extra-contractual liability, proposing the last one as the fundament of civil liability for causing abnormal inconveniences that bothers the relations of good neighbourhood. Also, it is brought into discussion the meaning of „owner” to which Article 630 of the Civil Code refers, and the implications regarded by giving a restricted meaning to this notion used by the legislator. Still, the French doctrine and the European Court of Human Rights Jurisprudence is orientated to a broad interpretation of this notion.
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Factoring is essentially a hybrid commercial operation that covers the elements of several legal mechanisms, the most common elements being borrowed from the debt assignment mechanism. However, the legislator did not consider it necessary to establish this legal operation in the contracts covered by the new Civil Code. Moreover, factoring does not currently benefit from any express regulation in Romanian law. Although, in the Romanian doctrine, we find references to a possible direct action of the factor against the assigned debtor, the situation of this action is uncertain. In this sense, we considered it opportune, but also necessary to formulate a brief analysis of what the factoring operation means in general, as well as to establish whether or not the factor’s action covers the elements of a direct action. In the Romanian doctrine and legislation we find only fragments of texts regarding the factoring operation, therefore, an exhaustive analysis regarding the application of factoring and even more so of the factor’s action cannot be performed. However, we hope that the brief explanations we will bring will lead to an outline, at least general, of the factor’s action against the assigned debtor.
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The study addresses the issue related to the offence of family abandonment, in the version provided by Article 378 (3) c) of the Criminal Code, which consists in the non-payment, in bad faith, for 3 months, of the support pension established in court. In particular, the aim is to clarify the meaning of the phrase „committing the act”, designated as indicating the moment when the time limit from which the period for filing the preliminary complaint begins to run, as the legislator has chosen to exempt this offence from the principle of compulsoriness of setting in motion the criminal action. The conclusions reached are in the sense that the phrase „committing the act” implies nuances in the matter of continued offence, as it is the one of family abandonment, otherwise the solution being one that would implicitly modify the content of Article 296 of the Criminal Procedure Code.
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În cazul în care, prin contract, întreținerea a fost constituită în favoarea unei terț, această persoană are doar dreptul de a cere executarea contractului, nu și pe acela de a cere rezoluțiunea pentru neîndeplinirea obligațiilor. În lipsa unei prevederi exprese în cuprinsul secțiunii care reglementează contractul de întreținere, sunt pe deplin aplicabile normele de drept comun care reglementează stipulația pentru altul, iar acestea prevăd în mod clar că stipulantul este singurul care poate revoca stipulația [art. 1287 alin. (1) C.civ.], beneficiarul având doar dreptul de a solicita executarea [art. 1284 alin. (2) C.civ.]. (Curtea de Apel Timișoara, Secția I civilă, Decizia nr. 235 din 11 iunie 2020, www.rolii.ro1 )
