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Analyzing the jurisprudence of the past three decades whereas tort law is concerned, one can easily find some gray areas, where the doctrinal principles developed so far seem to have fallen behind the realities of our modern society. Such a gray area is being analyzed by the author of this study, and it is attributed by modern doctrine to the jurisprudence applying the precautionary principle. Developed in the area of international public law, adapted to private law, and embraced by modern doctrine, the precautionary principle is a prominent figure in European legislation, as well as in our national laws, and lately also in court decisions. -
In this study, the author analyzes the scope of Regulation (EC) no. 593/ 2008 of the European Parliament and of the Council on the law applicable to contractual obligations (also called “Rome I”) in individual contracts of employment having an extraneity element, taking into account that the provisions of this regulation are mandatory applicable in Romania, with a view to Art. 148 paragraph 2 of the Constitution and Art. 2640 of the Romanian Civil Code (Law no. 287/2009 republished).
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In Romania, Article 5 paragraph 1 of Government Decision no. 250/1992 (which usually applies only to the personnel budget units) provides that employees who missed work because they were on sick leave throughout the calendar year are not entitled to the holiday leave corresponding to that year. We emphasize that this (exceptional) provision is not found in the (Romanian) Labour Code (Law no. 53/2003, republished on May 18, 2011). On the other hand, Article 7 paragraph 1 of the Directive 2003/88/EC of the European Parliament and of the Council provides for the right to annual leave of any employee, without exception, as the case law of the European Court of Justice states that this is a principle of European social law. So being, the author concludes that Art. 5 paragraph 1 of Government Decision no. 250/1992 can no longer be applied (to the budgetary personnel); however, through an interpretation consistent with the Directive, the employees who are not part of the budgetary personnel due to the direct effect of the European norm (Directive 2003/88/EC) benefit from the provisions thereof, even if the directive has not yet been transposed into Romanian legislation, especially as, in terms of this discussion, is not contrary to the Romanian Labour Code.
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The author examines the concept of „seniority in magistracy according to the applicable laws (Law no.303/2004 regarding the statute of judges and prosecutors) by referring to the broader concepts of seniority at work, respectively, seniority in a specialty.
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The author carries out a detailed analysis of the legal content of the insurance fraud offense, as provided for in Art.245 of the new Criminal Code as an assimilated and aggravated version of the deception offense. Regarding the structure of this offense, the criminal protection object, the subjects, the objective and subjective side, the forms, procedures and sanctions provided by law are reviewed in detail. The explanations discuss the insurance deception links to other offences relating to insurance and certain procedural aspects. The preceding legislation of this indictment rule, the solutions to be followed in case of transitional situations and some elements of comparative law are subsequently presented. Also, the author does not hesitate to state his point of view with regard to the constituent content of this criminal act, its systematization, its character and to frame in this regard certain solutions and certain ideas of his own. In the end, this analysis gives several conclusions and proposals of future law to determine an appropriate protection of the values „and social relationships covered by this indictment, a uniform implementation of the text and thus a better criminal justice administration in Romania.
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This paper aims to examine the issue of renunciation of inheritance, valence of the right of succession option in every aspect that it involves, to reveal the novelties brought by Law.287/2009 on this matter, and to assess on the usefulness and timeliness thereof.
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The entry into force of the Civil Code leads to significant changes in the existence and manifestation of the right of first refusal, by explicitly enshrining the right of legal first refusal, and the right of conventional first refusal, on one hand and secondly by extending the scope. The emergence of new regulations requires consultation of French regulations, doctrine and practice in these matters so as to achieve an overall understanding of the concept, its functionality and role, and also an analysis of the effects of these provisions on the doctrine and domestic practice.
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Brokerage is an activity which plays an important role in the economy and is exercised in various areas thereof, such as trade, insurance, transport, etc. Despite the importance of this activity and the large number of brokered legal relationships, the first brokerage contract regulation is found in the Civil Code (Law no. 287/2009) which entered into force on October 1, 2011. The brokers are professionals and their goal is to bring together other natural or legal persons to conclude certain contracts specific to the economic sector they operate in. Brokers are third parties to the agreement between the two parties brought into relationship and have only the right to receive the established remuneration as far as the brokered agreement is concluded. In terms of the right to remuneration, the fulfillment of the obligations undertaken by the parties in the brokered contract is irrelevant.
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This study analyzes a series of correlations between the current Civil Code (entered into force on October 1, 2011) and the legislation relating to intellectual creation (works, related creations thereof, databases, inventions, industrial drawings or models, trademarks and geographical indications). In this respect, following a series of considerations concerning the legal terminology in this field, the paper discusses the patrimonial intellectual property rights on the works and trademarks that each of the spouses registered, as well as on scientific or literary manuscripts, drawings, art and invention projects and other similar property, as well as on the revenues due under an intellectual property right. Finally, it draws some considerations related to private international law matters on the legal protection of intellectual creation.
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The cessation of the natural person’s existence shall result in a series of consequences, such as the succession law, the personality rights, and the natural person’s respect and subsequent to his/her death and so on. This study examines the cessation of the natural person’s existence and its consequences, in the light of the provisions of the applicable Romanian Civil Code (Law no. 287/2009, as republished on 15 July 2011 and come into force on the 1st October 2011), pointing out the new regulations in the matter, as compared to the previous laws (into force until the 1st October 2011).
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Cerința interesului de a fi actual trebuie îndeplinitã pe tot parcursul procesului, iar nu numai la momentul introducerii acțiunii. Astfel, în cazul în care pe parcursul procesului acțiunea promovatã de reclamant rãmâne fãrã interes, demersul procesual, inițial justificat, rãmâne fãrã o finalitate practicã din punct de vedere juridic, soluția consacratã jurisprudențial în atare situații fiind aceea a respingerii acțiunii ca rãmasã fãrã interes (Înalta Curte de Casație și Justiție, Secția comercialã, decizia nr. 2623 din 13 septembrie 2011). -
Prevention and fight against cross-border offences specific to organized crime shall be a major aim assumed by the European Union, an aim which has become imperative in time because of the proliferation of criminality in the matter and implicitly of the high degree of social danger of these categories of criminal offences. The study exposes a comparative analysis of the European Framework normative act, as compared to the provisions contained in the national internal laws, the author revealing that the Romanian criminal law is present interest, and in these circumstances the Romanian legislator shall not operate any amendments for the transposition of this normative act in the Romanian law. Beforehand, this subject represented the subject matter of certain different investigations in the field of judicial cooperation in the criminal matter among the Member States, concretized in studies and items published in specialty journals or international conferences, where the need for the harmonization of laws was pointed out among the Member States. Likewise, this study exposes also certain critical remarks related to certain rules contained in the European normative act, which, according to the author’s opinion, should be supplemented. Finally, this study is distinguished both by the comparative examination of the Council Framework Decision 2008/841/ JHA of 24 October 2008, with the provisions of the national internal law, and by the critical formulated remarks.
