Principiile constituționale fundamentale și reflectarea lor în ramurile sistemului juridic românesc
The fundamental constitutional principles and their reflection in the branches of the Romanian legal system
Contributor(s): Mircea Duţu (Editor)
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Criminal Law, Civil Law, Commercial Law, Labour and Social Security Law
Published by: Universul Juridic
Keywords: Constitutional Principles; Romanian Legal System; Non-Discrimination; Right to Internet; Equality Before Justice; Right to Defense;
Summary/Abstract: The volume covers various fundamental constitutional principles and their applications across different branches of the Romanian legal system. Topics include non-discrimination and workplace harassment, the right to the internet, the constitutional principle of equality, the right to defense, aspects of guaranteeing the right to life and integrity, and the impact of protection order legislation. The papers also delve into specific legal domains such as civil, labor, family, commercial, insolvency, and criminal law. Additionally it examines the theoretical and practical implications of these constitutional principles, including contributions to the philosophy of law, doctrinal sources, national security, and the interpretation of legal norms.
- E-ISBN-13: 978-606-39-1504-8
- Page Count: 349
- Publication Year: 2024
- Language: Romanian
Principiul nediscriminării. Note privind hărțuirea la locul de muncă
Principiul nediscriminării. Note privind hărțuirea la locul de muncă
(The Principle of Non-Discrimination. Notes on Workplace Harassment)
- Author(s):Raluca Dimitriu
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:13-22
- No. of Pages:10
- Keywords:Romanian Constitution; Discrimination; Harassment; Labour Relations;
- Summary/Abstract:The Romanian Constitution, numerous international and European norms, as well as abundant national legislation, enshrine the principle of equal rights and the prohibition of discrimination. This principle is especially important in the workplace. Indeed, labour relations being power relations, asymmetric relations of subordination, they constitute a special space for the manifestation of discriminatory acts. This paper concerns a specific form of discrimination, namely harassment. This has the particularity that it does not require a comparator. The Romanian legislation includes a detailed regulation of this subject, the usefulness of which can be jeopardized by non-compliance with the rules of legislative technique. The new methodology for preventing and combating harassment based on sex, as well as moral harassment at work, far from shedding light on the controversial issue of workplace harassment, ends up introducing confusion and ambiguities.
Prolegomene privind dreptul la internet
Prolegomene privind dreptul la internet
(Preliminary Considerations on the Right to the Internet)
- Author(s):Daniel - Mihail Şandru
- Language:Romanian
- Subject(s):Human Rights and Humanitarian Law
- Page Range:23-27
- No. of Pages:5
- Keywords:Internet; Fundamental Rights; European Union; European Citizenship;
- Summary/Abstract:The right to the internet is analysed from the perspective of the fundamental rights of European citizens, as enshrined in treaties and in the Charter of Fundamental Rights of the European Union. The internet is a part, even a condition, of access to institutions and rights. The perspective is that of the digital transformation of Europe, through reforms initiated in recent years in several reference areas – data protection, digital markets, electronic identification and trust services for electronic transactions, equitable access to data and fair use thereof (Data Act), digital security, access to documents, or the regulation of the single market for digital services. All these focus on the citizen, but the relationship is established through an instrument, a technology to which citizens must have non-discriminatory access: the internet. Access to the internet has a complex content that refers not only to the use of the internet, email addresses, as a means of identification and correspondence, but also to the respect and guarantee of citizen rights to information, expression, private life, and data protection. We will analyse the extent to which states might be obliged to ensure access to the internet and how they guarantee the fundamental rights of citizens. The research methodology considers the analysis of the European Union legislation which has the internet, platforms, and rights exercised by European citizens on the internet as the central element of regulation, as well as relevant national legislation. Jurisprudence of the Court of Justice of the European Union and the European Court of Human Rights, as well as relevant national jurisprudence or administrative practices, will be added to the research to examine the existence of the right to the internet.
Manifestarea de voință la încheierea contractului inteligent
Manifestarea de voință la încheierea contractului inteligent
(Expression of Will at the Conclusion of the Smart Contract)
- Author(s):Radu Stancu
- Language:Romanian
- Subject(s):Civil Law
- Page Range:31-39
- No. of Pages:9
- Keywords:Contract; AI; Expression of Will; Consent; Civil Liability;
- Summary/Abstract:The expression of will when entering into a smart contract is the adaptation of traditional legal principles to blockchain technology. Smart contracts are software programs that automatically execute the terms of an agreement when specified conditions are met, without human intervention. These contracts are stored on the blockchain, ensuring transparency and security. Entering into these contracts requires the expression of the parties' will, similar to traditional contracts, but by digital means - acceptance of the contract code through digital interfaces such as clicks or digital signatures. A critical issue is understanding the codified contract terms, emphasizing the importance of informed consent and accessibility. Jurisdictions face the challenge of regulating and legally recognizing these contracts, adapting legislation to new technological realities. The manifestation of will in smart contracts requires a deep understanding of technology and law to ensure that they are valid and legally enforceable, representing a significant evolution in how contractual interactions are conceptualized and executed in the digital age.
Principiul constituțional al egalității și egalitatea în fața justiției
Principiul constituțional al egalității și egalitatea în fața justiției
(The Constitutional Principle of Equality and Equality Before Justice)
- Author(s):Nora Andreea Daghie
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:40-46
- No. of Pages:7
- Keywords:Equality; Procedural Rights; Equality of Arms; Balance; Nullity;
- Summary/Abstract:Equality before justice derives from the constitutional principle "equality in rights" (art. 16 of the Constitution) and, in essence, ensures the real guarantees for the fair administration of justice. Specifically, art. 8 of the Civil Procedure Code applies the fundamental principle of equality, referring to the exercise of procedural rights in the civil process, which is done equally and without discrimination. They are forms of manifestation of the principle of equality of the parties in justice: judging the processes, for all parties, by the same bodies and according to the same procedural rules; the recognition of the same rights to each party, in relation to the concrete case brought to trial (the right to the same evidence, the right to the same defenses, the right to the same appeals, etc.); the court's obligation to ensure a balance in the procedural situation of the parties (none of the parties benefits from a privileged situation in relation to its opponent). Disregarding the principle of equality has the effect of violating the right to a fair trial, the guarantee of compliance being the sanction of the procedural acts committed, respectively the annulment of the court decision.
Dreptul la apărare - principiu de drept fundamental
Dreptul la apărare - principiu de drept fundamental
(The Right to Defense - Fundamental Right Principle)
- Author(s):Adela-Maria Cerchez
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:47-52
- No. of Pages:6
- Keywords:Law; Defence; Guarantee; Principle; Process;
- Summary/Abstract:The right to defence regarded as a fundamental human right in terms of universal realities, respectively as a citizen's right in terms of the internal realities of each state, represents an important area in the concerns of each state, but also of the international human community. The right to defence is a subjective, essential, necessary and fundamental right of man and citizen, proclaimed, promoted, protected and guaranteed by the Constitution and laws. In order not to represent only a philosophical problem, the right to defense must be protected and guaranteed through appropriate institutions, but also through socio-economic actions both at national and international level. National and international guarantees regarding respect for the rights of defence cannot ensure absolute legal protection, so the fight for Law must also be a constant from this perspective.
Aspecte ale garantării dreptului la viață și la integritate fizică și psihică a persoanei prin legislația privind ordinul de protecție
Aspecte ale garantării dreptului la viață și la integritate fizică și psihică a persoanei prin legislația privind ordinul de protecție
(Aspects of Guaranteeing the Right to Life and to Physical and Mental Integrity of the Person Through Protection Order Legislation)
- Author(s):Cristiana Mihaela Crăciunescu
- Language:Romanian
- Subject(s):Civil Law
- Page Range:55-62
- No. of Pages:8
- Keywords:Violence; Protection Order; Protection Measures; Family Member; Victim;
- Summary/Abstract:Violence within families and society has reached significant proportions in contemporary society, with victims often being the most vulnerable individuals, including women and children, who hold the first places. Law No. 217/2003 was enacted to regulate the prevention and combating of domestic violence. Following Romania’s ratification of the Istanbul Convention, provisional protection orders were introduced to expedite the process of implementing protection measures. With the adoption of Law No. 26/2024, the scope of prevention and protection against violence has been expanded beyond immediate family members to include a wider circle of individuals. However, the implementation of these regulations may encounter challenges due to the lack of clarity in certain provisions and discrepancies between applicable laws.
Locuinţa familiei în perioada de „conviețuire armonioasă” şi cea de „criză conjugală” a soților în ambitusul regimului primar
Locuinţa familiei în perioada de „conviețuire armonioasă” şi cea de „criză conjugală” a soților în ambitusul regimului primar
(The Family Residence During the Period of "Harmonious Coexistence" and The Period of "Marital Crisis" of The Spouses in The Scope of The Primary Regime)
- Author(s):Nadia-Cerasela Aniţei, Raluca Laura Dornean Păunescu
- Language:Romanian
- Subject(s):Civil Law
- Page Range:63-81
- No. of Pages:19
- Keywords:Spouses, Children; Family Home; Romanian Civil Code; Housing Law no. 114/1996; Republished and Modified;
- Summary/Abstract:The Civil Code regulates a series of general mandatory rules in Chapter VI - The patrimonial rights and obligations of spouses, Section 1 - Common provisions, Title II Marriage, Book II Family, art. 312- art. 338 Civil Code. We define the primary regime as the totality of the legal rules, which regulate the relationships established between spouses, or between one or both spouses, on the one hand, and third parties, on the other hand, relationships that have as their object assets existing at the time of marriage, acquired during it as well as the obligations contracted in relation to these assets or in order to fulfill the tasks of marriage and which apply to all marriages, regardless of the matrimonial regime to which the spouses are subject. We can say that during marriage we have two categories of applicable norms: Legal norms applicable during the period of "harmonious cohabitation" of the spouses; Legal norms applicable in periods of "marital crisis". The study is dedicated to the legal norms applicable during the period of "harmonious cohabitation" of the spouses, presenting and analyzing the family home.
Considerații privind acordarea indemnizației pentru deținerea titlului științific de doctor începând cu 1 ianuarie 2024
Considerații privind acordarea indemnizației pentru deținerea titlului științific de doctor începând cu 1 ianuarie 2024
(Considerations Regarding The Granting of The Allowance for Holding The Scientific Title of Doctor as of January 1, 2024)
- Author(s):Dan Ţop
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:82-85
- No. of Pages:4
- Keywords:The Scientific Title of Doctor; Indemnity; Salary Increase, Job Description; Monthly Activity Check;
- Summary/Abstract:Starting with the date of entry into force of the provisions of Law 153/2017, for the scientific title of doctor, an allowance is established in a fixed amount, respectively in the amount of 50% of the level of the minimum gross basic salary per country guaranteed in payment. In addition to the condition that the person holding the scientific title of doctor should carry out his activity in the field for which he holds the title, through O.U.G. no. 115/2023, a new one was introduced for the granting of the related allowance, the introduction of a set of objective and quantifiable duties in the job description, which would allow the monthly verification of the way in which his activity is additionally capitalized. In order to reflect the recent changes, the heads of public authorities and institutions, regardless of the way of financing and subordination, have the obligation to order the modification of the job descriptions. The amount of the increase, however, remained unchanged for years in a row, being in 2024 also reported at half of the gross minimum salary from 2018, because it was capped, along with other increases, by successive ordinances.
- Price: 4.00 €
Libera dezvoltare a personalității umane vs. dreptul angajatorului de a controla activitatea salariatului, în era monitorizării generalizate
Libera dezvoltare a personalității umane vs. dreptul angajatorului de a controla activitatea salariatului, în era monitorizării generalizate
(Balancing the Free Development of Human Personality and Employer's Control Rights in the Context of Ubiquitous Surveillance)
- Author(s):Dana Volosevici
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:86-93
- No. of Pages:8
- Keywords:Employment; Surveillance; GDPR; Development of Human Personality;
- Summary/Abstract:The Romanian Constitution upholds the free development of human personality as a paramount state value. This principle asserts every individual's right to cultivate and express their personal characteristics, beliefs, talents, and goals without undue interference from others, including employers or the state. Within the employment context, this principle underscores the necessity of balancing employees' rights to personal development with employers' legitimate needs to manage their activities for organizational objectives. However, we find ourselves in an era where technology enables unprecedented levels of human surveillance, potentially influencing behavior and altering cultural norms. This surveillance extends beyond employment, often justified by public interest. Thus, the human being of today must evolve under the conditions of a technology capable of monitoring and analyzing them like never before. This raises the question of how much of the surveillance conducted by employers can be justified by the new technological reality and social norms, and where it begins to infringe upon the free development of human personality.
Obligația de fidelitate și clauza de neconcurență – limite ale dreptului constituțional la muncă
Obligația de fidelitate și clauza de neconcurență – limite ale dreptului constituțional la muncă
(The Obligation of Fidelity and Non-competition Clause - Limitations of The Right to Work)
- Author(s):Corina Mihaela Şiman
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:94-101
- No. of Pages:8
- Keywords:Right to Work; Fidelity Obligation; Non-competition Clause; Art. 38 Labor Code; Nullity;
- Summary/Abstract:The right to work, as a constitutional fundamental right, is not absolute and may be subjected to legal and conventional limitations such as the fidelity obligation and the non-competition clause. The present study aims to analyse the extent to wich the right to work can be affected by clauses as such, as well as to underline the characteristic features of the two clauses mentioned above.
Efectele Deciziei nr. 79 din 11 decembrie 2023 pronunțate de Înalta Curte de Casație și Justiție - Completul pentru dezlegarea unei chestiuni de drept
Efectele Deciziei nr. 79 din 11 decembrie 2023 pronunțate de Înalta Curte de Casație și Justiție - Completul pentru dezlegarea unei chestiuni de drept
(The Effects of Decision no. 79 of December 11, 2023 Pronounced by the High Court of Cassation and Justice-Complete for Resolving a Question of Law)
- Author(s):Gabriela Petruţa Ştirbu
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:102-116
- No. of Pages:15
- Keywords:Specialist; Working Conditions; Employee Protection; Health Protection; Equality; Non-discrimination;
- Summary/Abstract:By Decision no.79 of December 11, 2023, the High Court of Cassation and Justice decided, among other things, that the phrase "harmful conditions" in GD no.250/1992 and from Law no.31/1991 does not have an identical content to the same phrase from the framework laws on unitary remuneration of personnel paid from public funds, with the consequence that the issuance of the expert report for the assessment of occupational risks at the workplace carried out in application of GD no.118/2018 is not sufficient to establish the existence of harmful conditions within the meaning of art.3 of Law no.31/1991. But, art.34 of the Romanian Constitution, in conjunction with art.41 of the Romanian Constitution, enshrines the employee's right to social protection measures, respectively, to health and safety at work. From the economics of the aforementioned decision, it follows that, in order to benefit from additional days of leave, it is necessary that the assessment be made according to Law no.31/1991. But, this assessment is strictly the prerogative of the employer. In this sense, several questions are raised: how are the two articles of the country's fundamental law respected, as a result of the ICCJ decision, respectively, how are the principles of equality and non-discrimination respected within the same professional category, given that some people have their right to additional days of leave/related allowance recognized by final court rulings, before the pronouncement of the decision by the ICCJ?
Reflectarea drepturilor constituționale fundamentale în dreptul muncii
Reflectarea drepturilor constituționale fundamentale în dreptul muncii
(Reflecting The Fundamental Constitutional Principles in Labor Law)
- Author(s):Valentin-Lucian Flueraru
- Language:Romanian
- Subject(s):Labour and Social Security Law
- Page Range:117-127
- No. of Pages:11
- Keywords:Constitutional Principle; The Romanian Constitution; Labor Law; Employees; Labor Code;
- Summary/Abstract:This work presents the concrete way in which the fundamental constitutional principles applicable in the matter of labor relations are reflected in the legislation specific to labor law. Both those constitutional principles common to the entire Romanian legal system and which, as a consequence, also have an influence on legal labor relations, are analyzed, such as, for example, the principle of universality, the principle of free access to justice or the principle of equality, as well as the constitutional principles specific to the law work: the right to work, the right to association, the right to social protection or the right to strike.
Instituția jurământului - considerații teologice și juridice
Instituția jurământului - considerații teologice și juridice
(The Institution of the Oath - Theological and Legal Considerations)
- Author(s):Cosmin Santi
- Language:Romanian
- Subject(s):Canon Law / Church Law
- Page Range:131-171
- No. of Pages:41
- Keywords:Oath; Declaration; Religion; State; Church; Perjury; Ethics; Freedom; Morality;
- Summary/Abstract:In general, a religious oath reflects a person’s devotion and obligations to their faith and may involve promises to abide by religious precepts and principles. The oath is eminently religious and sacred in character, has a profound dimension and means taking God as one’s witness, for it is the form by which one asks for and receives divine power in the performance of a work that is difficult to accomplish with one’s own strength. The oath is an liturgical act, because it includes a reverence for God, so that he may assure, guarantee and clarify a situation where we lack the means to give full assurance and clarify the matter definitively. A civil or secular oath is a solemn declaration by which a person makes a commitment or responsibility to the state, the community or an organisation, without necessarily involving religious or spiritual matters. Both types of oath have an impact on society, contributing to moral stability and respect for fundamental values. Religious and secular oath are expressions of human commitment to Christian and social values, whether based on belief in divinity or on secular principles, which influence the way people live their lives and contribute to building a just and responsible society. In many jurisdictions, there are alternative options, such as taking a secular oath or solemn affirmation, to take account of the diversity of beliefs and respect the principle of separation the religious and state domain. Debates in this area continue to explore ways to maintain the balance between religious freedom and ensuring an accessible and inclusive legal system for all people.
Doctrina ca izvor de drept - privire specială asupra recursului în interesul legii și deciziilor de neconstituționalitate
Doctrina ca izvor de drept - privire specială asupra recursului în interesul legii și deciziilor de neconstituționalitate
(The Doctrine as a Source of Law - Special Consideration on The Appeal in The Interest of The Law and Decisions of Unconstitutionality)
- Author(s):Cornelia Beatrice Gabriela Ene-Dinu
- Language:Romanian
- Subject(s):Philosophy of Law, Sociology of Law
- Page Range:172-180
- No. of Pages:9
- Keywords:Source of Law; Appeal; Interest of The Law; Unconstitutionality; Direct Source; Indirect Source;
- Summary/Abstract:Broadly speaking, doctrine represents law as conceived in theory; it explains and comments on legal rules, exposes legal theories, as well as the practical application of principles, showing the authors' opinions on legal issues. In a narrow sense, the term "doctrine" refers to an opinion expressed on a particular issue. Both meanings refer to a written or oral presentation of the science of law, which has a systematic or critical nature with regard to a certain legal matter, made by persons whose function is to study law. The manifestation of the doctrine is carried out in multiple forms, from treatises and courses which are systematic expositions in which each branch of law is presented as a whole; commentaries that explain the text of laws or judicial decisions, considered to be the oldest type of doctrinal works, in the form of the works of Romanian jurisconsults, compilations of practical materials, especially of judicial decisions or normative acts; legal monographs; studies, articles, etc. It is important to specify the role that the doctrine has on the legislative activity, application and interpretation of the law, especially with regard to appeals in the interest of the law and unconstitutionality decisions.
Principiile fundamentale, un ”dat” al dreptului
Principiile fundamentale, un ”dat” al dreptului
(The Fundamental Principles, a ”Given” in The Field of The Law)
- Author(s):Elena Anghel
- Language:Romanian
- Subject(s):Philosophy of Law, Sociology of Law
- Page Range:181-186
- No. of Pages:6
- Keywords:Principles; Given; Constructed; Spirit of Law;
- Summary/Abstract:In its grand historical-spatial diversity, the law presents a permanent nature represented by a bunch of constants. The principles, in terms of ontology, give meaning to the law from the beginning of the society, namely before being discovered and worded by the law science. They substantiate law as a ”given” and guide the lawmaker in the construction of positive law. As the principles are the bases of the positive law, the values are crystallized, enshrined and protect by rules of law. Law must carry within equilibrium between the letter and spirit of laws. The entire official legislation, instituted by the state, in other words “the letter of the law”, must be went through by the “spirit” of law’s principles. The fundamental principles constitute reference points for the legislator, as well as for the practitioner, in the process of elaborating and applying the norms of positive law. Provided in the Constitution, they assume the function of harmonizing the positive law system and orientate the ordinary legislator’s will, being situated above its spirit. The legislator has the purpose only of discovering the spirit of the law and of formulating the principles, transforming the given of the law into the constructed. We all agree that the principles ensure the unity, cohesion, balance and development of the legal system. But are the principles formal sources of law? If we agree that they are exterior to the positive juridical order, what is hiding behind the principles of law? We are aware that behind law and jurisprudence exist institutions and people; behind doctrine, savants and law schools; behind common law lays the entire society; How about behind law’s principles? This is what I will try to find out in the present study.
Contribuția lui Dumitru Drăghicescu la dezvoltarea filosofiei dreptului în România
Contribuția lui Dumitru Drăghicescu la dezvoltarea filosofiei dreptului în România
(Dumitru Draghicescu's Contribution to The Development of The Philosophy of Law in Romania)
- Author(s):Viorel Miulescu
- Language:Romanian
- Subject(s):Philosophy of Law
- Page Range:187-196
- No. of Pages:10
- Keywords:Law; Ethics; Justice; Quality; Common Good;General Interest;
- Summary/Abstract:According to Dumitru Drăghicescu, there is a close interdependence between law and ethics. The juridical life, either as an object of study or as a psychological field, cannot exist outside the moral notions which constitute the criterion for the analysis of acts. The purpose served by law is the attainment of good - the common good, the general interest. Such a result can be accomplished thanks to the idea of justice which entails the existence of the same level of freedom for everyone, not justice as a form of mechanical freedom, but as the equality realised among equals, standing in direct ratio to the amount of service and the level of necessity. Law and ethics are interconnected and complementary: law cannot exist without ethics just as ethics is crystallized in juridical formulas. Law and ethics tend towards a shared goal: ideally, all juridical principles should become as general as some moral principles, while all moral principles should attain the same level of certainty and necessity as the juridical laws.
Adevărul - principiu sau metodă în sistemul de drept românesc?
Adevărul - principiu sau metodă în sistemul de drept românesc?
(The Truth - Principle or Method in The Romanian Legal System?)
- Author(s):Cristian Neacsiu
- Language:Romanian
- Subject(s):Philosophy of Law
- Page Range:197-203
- No. of Pages:7
- Keywords:Ttruth; The Value of Truth; Law As A System; Branches of Law; Constitutional Law – Fundamental Branch of The Legal System;
- Summary/Abstract:The promotion of values, respectively the qualities that belong to the human being, respectively the contribution made to ensure the natural continuity of the latter, as well as the collaboration to at least ensure the framework necessary for social progress, by a system that at least desirably tends to achieve the ideal of justice by the actualization of justice in the heterogeneity of the social, it is a systemic ensemble of a system that claims as homogeneity in its own composition, the truth through its value and values.
Conceptul de securitate națională - garanție a activității și reflectării principiilor constituționale fundamentale ale sistemului juridic românesc
Conceptul de securitate națională - garanție a activității și reflectării principiilor constituționale fundamentale ale sistemului juridic românesc
(The Concept of National Security - Guarantee of The Activity and Reflection of the Fundamental Constitutional Principles of The Romanian Legal System)
- Author(s):Viorel Gheorghe
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:204-214
- No. of Pages:11
- Keywords:National Security; Law; Identity; Statehood; Justice; Equality Before The Law;
- Summary/Abstract:Apparently, under a resurrection of scepticism in affirming the condition of an authentic democracy, in the complex exercise of fundamental rights and freedoms, we continue to consider that the reflection of the fundamental constitutional principles represents one of the cardinal elements of democracy, without considering too much, the meaning of a space ideal of human coexistence. In a constitutionalist vision, proposed at the beginning of this century, in 2001, the authors Ioan Muraru and Simina Tănăsescu illustrated the fact that society was a determining factor of the meanings and goals of the other categories, called, often generously, but also misleadingly, „common good" or „happiness", constituting „the starting point, but also the point of return of all social, political and moral constructions". From here, the human being could fully look at the ideal societal image, in which humanity could exist, develop, only in organized structures, this work that was imposed and resisted based on some principles of existence, perfected by a normative order - the state - being, practically, not to be abandoned, as a superior form of the coagulation of some communities, in a determined area, through its quality as the legal personification of the nation. However, it should be noted that the current challenges of a particularly evolutionary contemporaneity place, under a worrying question mark, the ideal of statehood, becoming more and more pragmatic the need for the form and the necessary explanations of the concept of „national security" to enshrine the exigency of the response model of human thought to the need to guarantee the right and to carry out justice, especially in the area of normative architecture, as tools of a society in an increasingly real need for identity. In such a context, one of the conditions for the existence of any state form is and must be reflected by the degree of assurance of guaranteeing the full manifestation of democracy, under the balance of the legal norm, of the law itself. This image manifests itself, from a conceptual perspective, under the effect of what is generically recognized and disputed, at the same time, by the term "security", under its multiple valences (social, legal, financial, labour, at the conceptual level, in a strategically gathered vision, „national security" or „international"), without which, any form of social justice diminishes, to the point of cancellation, likewise, guarantor of the activity of the universal principle of equality before the law towards not to remain simply and ideologically desired.
Interpretarea normei juridice și principiile constituționale
Interpretarea normei juridice și principiile constituționale
(Interpretation of The Legal Norm and Constitutional Principles)
- Author(s):Iosif Friedmann-Nicolescu
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:215-217
- No. of Pages:3
- Keywords:Interpretation of the Legal Norm; Law Enforcement; Constitutional Principles; The law; The Constitution;
- Summary/Abstract:Interpretation of the legal norm in the law enforcement process in relation to the constitutional principles.
Contribuții doctrinare și ale jurisprudenței constituționale la construcția principiilor proporționalității și egalității
Contribuții doctrinare și ale jurisprudenței constituționale la construcția principiilor proporționalității și egalității
(Contributions of The Doctrine and Constitutional Jurisprudence to The Construction of The Principles of Proportionality and Equality)
- Author(s):Marius Andreescu
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:221-229
- No. of Pages:9
- Keywords:National Sovereignty; State Power; State Characters and Attributes; The Relationship Between The Internal Constitutional Order and European Union Law;
- Summary/Abstract:In this study, we propose to analyze some aspects of constitutional doctrine and jurisprudence in shaping and developing the constitutional principles of proportionality and equality of law. We especially emphasize its contribution to the emergence and development of the constitutional control of laws as well as to the edification of some principles of law. We mainly analyze the role of judicial practice in the construction of the principle of proportionality in constitutional law, the principle of equality and the interference between the principle of proportionality and the principle of equality. In this sense, we support the role of jurisprudence not only in the correct interpretation and application of the constitutional norms but also in the irconstruction, in the discovery of the existing normative meanings, most of the time only implicitly in the formal expression of the legal norm of the constitutional principles mentioned above. By this, the jurisprudence in constitutional matters is not limited only to the interpretation according to classical methods of the norms of the Fundamental Law, but has an important contribution to the clarification and construction of some principles of law, to the constitutionalization of the entire legislative system and the judicial practice of all courts.
Noul design al conceptelor de drept public în economia digitală: influența fiscalității asupra conceptelor fundamentale
Noul design al conceptelor de drept public în economia digitală: influența fiscalității asupra conceptelor fundamentale
(The New Design of Public Law Concepts in The Digital Economy: Taxation Influence on Fundamental Concepts)
- Author(s):Mihaela Tofan
- Language:Romanian
- Subject(s):Administrative Law
- Page Range:230-239
- No. of Pages:10
- Keywords:Digital Economy; Global Regulations; European Taxation;
- Summary/Abstract:The paper addresses the challenges generated by the new configuration of the global economy, in general, and in the European Union, in particular. The recent pandemic, energy crises and military conflicts underline the influence of digitization on public law, from the design of the institutional mechanism to the new regulatory perspective of the tax treatment of income generated by individuals and legal entities. The particularities of the digital dimension of the global economy have justified the need to use similar/compatible regulations worldwide for almost all areas of public law. This tendency is even more present for the field of fiscal law, a distinctive field of public law and the main tool used by states to determine the size of public budgets. All governments are expected to seek to maximize their revenue, using the constitutional protection of the sovereign right to set taxes. The result is often inefficient, as states engage in close competition with each other for the largest share of taxable income. The short-term benefit of such conduct is unbalanced by the medium- and long-term distortion of economic activities, calling for innovative solutions. Recent developments in the negotiation of international organizations and the domestic perspective on the tax regime of digital income have led to changes in the design of public law concepts, favoring mutual tax agreements and undermining the role of national legislations in the matter. The assessment of these recent developments in local, European and international taxation shows important changes in the design of public law concepts in the digital economy: the imperative to draw up multilateral tax agreements and the challenges of constitutional law.
Supremația - proprietate esențială a Constituției. Abordări teoretice și argumente jurisprudențiale
Supremația - proprietate esențială a Constituției.
Abordări teoretice și argumente jurisprudențiale
(Supremacy - An Essential Feature of a Constitution.
Theoretical Approaches and Jurisprudence Reasoning)
- Author(s):Claudia Gilia
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:240-246
- No. of Pages:7
- Keywords:Constitution; Supremacy; Constitutional Review; Power; Nation;
- Summary/Abstract:A Constitution is the vision on a society, formalised in a specific way of structuring the political power. It is the Constitution that makes legal the power structuring manner. Constitutional developments have shown that it is not enough for a Constitution to be proclaimed, it also needs to be guaranteed against injuries that might be caused by the rulers, or the ruled. The rule of law does exist and it is expressed most clearly through the supremacy of the Constitution, which is not only a feature or a principle of the legal system of a state, but also the essence of constitutionalism, as a system that ensures viability and effectiveness to a Constitution. The supremacy of the Constitution is a fundamental principle of constitutional law. Our study sets out the theoretical reasoning behind the supremacy of the Constitution, and the ensurance of its supremacy through established instruments, in this case – through constitutional review.
Principiul egalității suverane a statelor
Principiul egalității suverane a statelor
(The Principle of the Sovereign Equality of States)
- Author(s):Daniela Țăranu
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:247-253
- No. of Pages:7
- Keywords:Romanian Constitution; The Principle of Sovereign Equality of States; World Order; The Principle of Non-interference in The Internal Affairs of Other States; Peace; Right to Respect;
- Summary/Abstract:One of the fundamental principles underlying international relations and international law today is the principle of the sovereign equality of states. In other words, we show that states have equal power to acquire rights and assume obligations in international law relations, regardless of the size of their territory and population, their degree of technical and cultural development, their economic and military strength, and their public or moral authority. We then distinguish between de facto (or substantive) equality, legal equality (or equality before international law), and absolute (or functional) equality. Without mutual respect for the sovereign equality of states, free international cooperation and international law would be replaced by arbitrariness and goodwill, by the law of force, as is currently the case with Russia's 'invasion' of Ukraine.
Principiul loialității constituționale – privire comparativă în dreptul național și în cel german
Principiul loialității constituționale – privire comparativă
în dreptul național și în cel german
(The principle of Constitutional Loyalty –
Comparative View in National and German Law)
- Author(s):Cosmin Țugui
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:254-264
- No. of Pages:11
- Keywords:Loyal Cooperation; Public Authorities; Constitutional Contentious; Rule of Law;
- Summary/Abstract:The principle of constitutional loyalty appears as an extension of the separation of powers in the state and regulates the relations between the branches of thestate's government, establishing the general obligation of collaboration and loyal cooperation. In order to fulfil the integrative function of the state, the principle of constitutional loyalty has been imposed in particular in relations between the legislature and the executive. The requirement of cooperation, respect and mutual consideration imposes a series of obligations on the executive towards the legislature and vice versa. The executive must act with respect and consideration both towards the parliamentary majority that gave it the vote of confidence and towards the parliamentary opposition. The instruments through which loyal cooperation materialises are, first and foremost, legal institutional dialogue and the establishment of mutually accepted constitutional practices, instruments to which the state authorities/institutions have recourse, within the framework of those rational and increased diligences, in order to avoid as far as possible the generation of constitutional conflicts. In this paper, we intend to make a brief historical incursion through the stages of the evolution of this fundamental principle and to analyse the main forms in which it takes shape in intra-executive relations and in the relations between the executive and the legislative power, in Romanian and German constitutional law.
Organizarea statutară a cultelor religioase - principiu constituțional fundamental în exercitarea libertății religioase
Organizarea statutară a cultelor religioase - principiu constituțional fundamental în exercitarea libertății religioase
(Statutory Organization of Religious Denominations - Fundamental Constitutional Principle in The Exercise of Religious Freedom)
- Author(s):Radu Zidaru
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:265-270
- No. of Pages:6
- Keywords:Religious Freedom; Statutory Organization; Religious Denomination; Statute;
- Summary/Abstract:Analyzed more and more in recent years, especially due to the correlative challenges that have arisen, religious freedom has come to acquire a special importance. And, although its exercise is done in the priority consideration of spiritual aspects, the principle of the statutory organization of religious denominations cannot be ignored, because its observation and compliance gives stability and predictability to legal relations of such a nature. The exercise of religious freedom in its various forms therefore requires reference to this fundamental constitutional principle, meaning that, within the limits of the proposed approach, the aspects that prove its major importance will be highlighted, especially since the specialized literature has not " delivered" a detail approach. With the hope that this approach will contribute to a deeper understanding of religious freedom, we welcome the organization of the event entitled "The fundamental constitutional principles and their reflection in the branches of the Romanian legal system" and we extend our best wishes and thanks to those involved. This article appears with the financial support of the University of Bucharest.
Obligaţia constituţională a cetăţenilor de a contribui, prin impozite şi taxe, la cheltuielile publice
Obligaţia constituţională a cetăţenilor de a contribui, prin impozite şi taxe, la cheltuielile publice
(The Constitutional Obligation of Citizens to Contribute, Through Taxes and Fees, to Public Expenses)
- Author(s):Adrian-Milutin Truichici, Luiza Neagu
- Language:Romanian
- Subject(s):Constitutional Law
- Page Range:271-278
- No. of Pages:8
- Keywords:Public Spending; The Principle of The Necessity of Tax or Contribution; Tax; Toll;
- Summary/Abstract:The collection of taxes and fees constitutes the main source of income for the state, being one of the most obvious expressions of the defense of national interests on a financial level. Only if it has these budgetary resources, the state will be able to fulfill its obligations towards citizens and economic agents. However, the state can only impose fiscal obligations in order to participate in public expenses, as it results from the disp. Art. 56 para. (1) of the Romanian Constitution, legal provision that will be the subject of this study. During our study we will show the destination of the fiscal revenues collected by the state, as a result of the fulfillment of these obligations by the debtors, respectively the payment of taxes or fees. At the same time, the consequence of not feeding a public budget (being thus in the presence of the violation of the principle of contribution, enshrined in art. 56 paragraph (1) of the Romanian Constitution) is analyzed, by reference to numerous decisions of the constitutional court.
Saga judiciară Roșia Montană. O radiografie a soluției de la ICSID Washington
Saga judiciară Roșia Montană. O radiografie a soluției de la ICSID Washington
(The Rosia Montana Judicial Saga. An x-ray of the ICSID Washington Solution)
- Author(s):Dumitru Dobrev
- Language:Romanian
- Subject(s):Court case
- Page Range:279-282
- No. of Pages:4
- Keywords:Roșia Montană, Report on The Environmental Impact Study; Urban Planning Certificate; Approvals; Agreements; Area Urban Plan "Roșia Montană Industrial Zone";
- Summary/Abstract:The study presents from a diachronic perspective the evolution of the gold mining project with sodium cyanide from Roșia Montană, the main litigations and challenges faced by the judicial practice of environmental law, urban planning and administrative law related to this case and how it influenced the decision of the Arbitral Tribunal at the International Center for Settlement of Investment Disputes (ICSID) Washington
Deducerea arestării sau perioadei executate în străinătate de către un cetățean român în ipoteza pluralității de infracțiuni din perspectivă constituțională și europeană
Deducerea arestării sau perioadei executate în străinătate de către un cetățean român în ipoteza pluralității de infracțiuni din perspectivă constituțională și europeană
(Deduction of The Arrest or Period Served Abroad by a Romanian Citizen in The Hypothesis of Plurality of Offences From a Constitutional and European Perspective)
- Author(s):Simona Franguloiu, Nicoleta-Elena Heghes
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:285-295
- No. of Pages:11
- Keywords:European Union Law; Constitutional Rules; Plurality of Offences; Concurrent Offences; Recidivism; Penalty Resulting; Deduction of Time Served;
- Summary/Abstract:The present scientific approach aims to elucidate the issue of deducting the period of preventive detention or the period served from the sentence imposed by a foreign judgment in the hypothesis of concurrent offences or recidivism for an offence committed in Romania by a Romanian citizen. In the case of multiple offences, the problem arises of deducting from the resulting penalty the period of detention (whether under preventive or house arrest or the period served of a penalty imposed by a foreign judgment, especially since the latter judgment was rendered in a Member State. We intend to clarify whether, from this point of view, the solution pronounced by the Constitutional Court in its decision No 433 of 2021 or the texts of Law No 302 of 2004 on international judicial cooperation in criminal matters is questionable. In this study, we will consider that some texts of the special law should be amended, as they are no longer up to date in view of the fact that in the case of multiple offences and after recognition of the foreign judgment, the period of detention must be deducted, regardless of whether the sentence has been served or deemed to have been served, and the need to formulate a proposal for a lege ferenda.
Principiul legalității în dreptul penal. Scurte considerații
Principiul legalității în dreptul penal. Scurte considerații
(The Principle of Legality in Criminal Law. Short Considerations)
- Author(s):Versavia Brutaru
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:296-303
- No. of Pages:8
- Keywords:Criminal Law; Principle of Legality; Substantial Justice; Interpretation;
- Summary/Abstract:Having its origin in Roman law and being formulated in its established version, nullum crimen, nulla poena sine praevia lege poenali (by Feuerbach), the principle of legality has always aimed to prevent arbitrariness in the field of criminal law. From this point of view, in light of the fact that criminal law is substantially defined by the content given to it through interpretation, it is natural that the principle of legality plays an essential role in preventing arbitrariness in the context of judicial interpretation. At the same time, the restrictions arising from the requirements of the principle of legality have constantly collided, over time, with the need for the effectiveness of criminal rules or the issue of achieving substantial justice.
Reflectarea principiilor constituționale în legislația execuțional penală
Reflectarea principiilor constituționale în legislația execuțional penală
(The Reflection of Constitutional Principles in Criminal Executional Legislation)
- Author(s):Aura Preda
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:304-314
- No. of Pages:11
- Keywords:Constitutional Principles; Theory and Practice; Criminal Executive Law; Rights and Freedoms;
- Summary/Abstract:The constitutional principles are applicable to the fundamental rights, freedoms and duties of Romanian citizens. These principles will be analyzed, theoretically and practically, from the point of view of applicability to a branch of law belonging to criminal sciences: criminal executional law. We will consider the specifics of the application of the rights and freedoms of Romanian citizens in different units of the Romanian penitentiary system. Among others, the following will be listed and treated: the right to work, to education, to defense, to correspondence, to private life, the right to vote, as well as the freedom of conscience and expression, both with regard to the regulation modalities and the practical, aspects.
Unele principii constituționale fundamentale și reflectarea lor în dreptul penal român
Unele principii constituționale fundamentale și reflectarea lor în dreptul penal român
(Some Fundamental Constitutional Principles and Their Reflection in Romanian Criminal Law)
- Author(s):Ion Ifrim
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:315-319
- No. of Pages:5
- Keywords:Democratism; Humanism; Legality; Constants of Law;
- Summary/Abstract:First, the author analyzes some fundamental constitutional principles and their reflection on Romanian criminal law for a fair understanding of criminal policy in this regard. Such research is not only of theoretical interest, because of the possibility it creates to formulate some unified conclusions on the manifestation of fundamental constitutional principles on criminal law, i.e. both in the activity of creating criminal law and in its application, but it is also of practical interest, because of the contribution it can bring to prevent some negative aspects that could arise in the activity of those called to apply criminal law.
Prezumția de nevinovăție și dreptul la apărare
Prezumția de nevinovăție și dreptul la apărare
(The Presumption of Innocence and The Right to Defence)
- Author(s):Ion Flămînzeanu
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:320-322
- No. of Pages:3
- Keywords:Statement of Principle; Presumption; Guarantee; Rule; Documents;
- Summary/Abstract:Regarding the presumption of innocence, it is a principle with a universal vocation. Everyone understands that every person is presumed innocent until we have a final court decision. When the decision remains final, we have res judicata authority.
Problematica drogurilor - prevenire prin educație formală
Problematica drogurilor - prevenire prin educație formală
(The Drug Problem - Prevention Through Formal Education)
- Author(s):Tiberiu Viorel POPESCU
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:323-336
- No. of Pages:14
- Keywords:Law; Criminology; Drugs; Formal Education;
- Summary/Abstract:The problem of drugs, under both its main aspects, ie the supply and demand of drugs, has often been addressed in the medical or legal literature. The common ground of the two approaches seems to be the prevention of the phenomenon mainly through education. We would say mainly through formal education, which follows and complements the one in the family. However, we do not find in the specialized literature a satisfactory approach to the problem of drugs from a didactic and pedagogical perspective in order to identify the methods, techniques and means of preventing the phenomenon. This aspect is due, on the one hand, to the difficulty with which drug specialists can integrate into the world of students from various school units in order to understand it and to be able to communicate constructively with them. On the other hand, the situation arises as a result of insufficient knowledge and experience of teaching staff regarding the drug issue. We propose a study on the prevention of the phenomenon through formal education, carried out from the perspective of a minimum amount of knowledge in the field of drugs and through the prism of a sufficient period of direct observation of students from the position of teaching staff, respectively from within school units.
Principii constituționale românești: fundamente și impactul lor în sistemul național de drept penal – analiză jurisprudențială
Principii constituționale românești: fundamente și impactul lor în sistemul național de drept penal – analiză jurisprudențială
(Romanian Constitutional Principles: Foundations and Their Impact in The National Criminal Law System - Jurisprudential Analysis)
- Author(s):Ştefan Bălan
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:337-342
- No. of Pages:6
- Keywords:Principles; Legal; Criminal; Constitution; Law;
- Summary/Abstract:The Romanian constitutional principles represent the foundation on which the country's entire legal system is based and exert a significant impact within the criminal law system. These principles enshrined in the Constitution have been developed and consolidated over time, reflecting the fundamental values of Romanian society and international standards in the field of human rights and justice. Among the Romanian constitutional principles with a major impact in criminal law are the legality and proportionality of punishment, the presumption of innocence, the right to defense and to a fair trial, the separation of powers in the state and equality before the law. The specification contained in Article 1 highlights that compliance with the Constitution and laws is a fundamental duty. The Constitution represents the primary and formal source of law, being the fundamental legal and political act of the Romanian state, placed at the top of the hierarchy of the legal system. Being the fundamental source of constitutional law and a defining element of the rule of law, compliance with the Constitution implies strict and full compliance of all other laws with its provisions, known as the principle of constitutional loyalty. The verification of compliance with this principle rests with the Constitutional Court, an institution that is the guarantor of constitutional supremacy and that pronounces generally binding decisions with an erga omnes character. Regarding the national criminal law system, the Constitution creates rules, concepts and principles essential to the proper functioning of the judicial system and guarantees the rights, freedoms and fundamental duties of citizens in order to respect the right to defense and a fair trial, thus adapting the entire national legislation to the normative framework established by the fundamental law.
Libertatea persoanei şi garanţiile ei procesual-penale
Libertatea persoanei şi garanţiile ei procesual-penale
(Freedom of The Person and His Procedural-criminal Guarantees)
- Author(s):Ion-Ovidiu Tatu
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:343-348
- No. of Pages:6
- Keywords:Freedom of The Person; Presumption of Innocence; Constitutional Guarantees; Criminal Procedural Guarantees; Collateral;
- Summary/Abstract:The author points out that the Basic Law is the general framework for regulating fundamental rights and freedoms, Chapter III, which establishes, in para. 1 of Art. 23 - Individual freedom, as follows: "individual freedom and security of person are inviolable", and para. 11 of the mentioned article, states that one of the general means to achieve this aim is the presumption of innocence, as follows: "until the final judgment of conviction has become final, the person shall be presumed innocent". We therefore affirm that the express reference in the text clearly shows that the State guarantees the full exercise of all fundamental rights and freedoms. We also point out that para. 11 of Article 23 of the Basic Law is a rule of principle for exercising citizens' rights and freedoms, constituting the legal framework of the entire system of guarantees known as formal criminal law.
De la inviolabilitatea domiciliului la violarea de domiciliu. Noi reflecții asupra garanțiilor constituționale în materia percheziției domiciliare
De la inviolabilitatea domiciliului la violarea de domiciliu. Noi reflecții asupra garanțiilor constituționale în materia percheziției domiciliare
(From The Inviolability of The Domicile to The Violation of The Domicile. New Reflections on Constitutional Guarantees in The Matter of Home Searches)
- Author(s):Giulia Şologon
- Language:Romanian
- Subject(s):Criminal Law
- Page Range:349-359
- No. of Pages:11
- Keywords:Criminalization; Privacy; Home; Professional Premises; Search Warrant;
- Summary/Abstract:Although privacy as a social value inherent to human beings seems to be a critical point in all societies, the right to private life has a volatile existence, with unclear boundaries and limits, unable to be defined or clearly classified. It is a right that finds its content on a case-by-case basis and, from a conceptual perspective, operates through the mechanism of connecting jurisprudence with various manifestations of everyday life. The social perspective on the right to privacy is translated legally into the right to private life. In the realm of constitutional guarantees, one of the reflections of the right to private life is the principle of the inviolability of the home. This study aims to conduct a careful analysis of the constitutional principle of the inviolability of the home as a form of manifestation of the right to private life, practical issues of substantive law in the field of criminalizations of offenses that ensure the protection of social values inherent to this right, the constitutional and criminal procedural law limits of the guarantee, the hypotheses in which the dispensation of consent operates in the case of entering an individual's home, as well as issues in the field of specific evidential procedure – the house search. Searches conducted in an individual's home or workplace are procedural mechanisms that, by their nature and natural course of conduct, contain the potential to impact physical and psychological integrity, relative to the security feeling that an individual experiences in an environment deemed personal. The criminalization of acts that infringe on private life is one of the levers through which the state fulfills its positive obligations to take measures to protect an individual's privacy. However, these criminalizations must be understood nuanced and subject to the expressly instituted legal exceptions that allow, under certain conditions, entry into a person's home, even in the absence of expressed consent. In this context, the constituting legislator has attributed superior values for the priority implementation of enforcement measures correlated with an arrest warrant or a judicial decision, for removing dangers related to the life, physical integrity, or property of a person, for ensuring the defense of national security or public order, as well as in preventing the spread of an epidemic.
