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This paper aims to launch a debate on the theme of regionalization in comparison to federalization. At the same time it brings into question the concept of guardianship state and launches the hypothesis that the regionalization hastens the end of the welfare state and consolidates the position of liberal minimal state. Also, it justifies, in a few words, the inopportunity of starting the process of regionalization in Romania and presents the risks and consequences of this political approach. The federal and regional state is presented on the terms of constitutional and international law. Analyzing the process of regionalization in Western Europe, the author suggests the reader to discern between the benefits and risks of regionalization in states with low economic potential, as it is Romania. There are signaled the dangers that may occur in the absence of political control of the central power, such as self-determination and enclavisation. The conclusion drawn is that where the decentralization is becoming increasingly intense, it approaches the unitary state from the federal, the process ending with the dissolution of the former and the regionalization, pushed to the extremes, it is a sure way to federalization.
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Jurisprudence appears as a feed-back of law enforcement, in practice, being at the same time a synthetic factor, over time, a basis for further lawmaking. There can not be a legislative proposal without adequate motivation to rely on the study of the statistics of the case management modalities in the field. On the one hand, we tend to disregard jurisprudence, as it does not have the force of law except incidental, and on the other hand we use it for legislative purposes, underlying its legislation. It is interesting to approach the encoding in a state at the intersection of the two major legal systems - Kuwait, with legal codes derived from the two legal systems, as the main source of the law and opting for the laws drawn by Western and Medieval traditions while influencing Islamic, tribal customs and colonial harmony, in which personal laws and Islamic attainment are very obvious, especially in commercial laws. Its civil code is based on the legal traditions of tribal regional customs and practices from previous years, and on the other hand, the code derives from the Egyptian code, which is based on French law and has its roots, motives, principles and philosophy of the Roman Code . It was practically developed on the Egyptian model (based on French civil law) for the new legislation.
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Les principaux objectifs de ce travail sont associés à l’investigation des caractéristiques psycho-comportamentales et de certaines variables qui peuvent faciliter le processus d’identification d’adolescentes ayant un haut potentiel aptitudinal. Les résultats obtenus montrent que les facteurs du contexte social peuvent influencer de début et le mentien de la sous-réalisations scolaire.
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The rule of law and the stability of the judicial practice depend on the regulation of the whole normative set, on the avoidance of parallelisms or of the additional conjunctural regulations that we have witnessed in the last years. Given that, in most cases, the conditions of admissibility are not met at the same time for the issuance of a preliminary ruling by the Compliance for the disclosure of questions of law, in civil matters, it is necessary to consolidate an additional complementary mechanism, the Pre-decision mechanism establishes a real judicial dialogue between the supreme court, the other courts and the SCM, aimed at preventing the occurrence of divergent interpretations. Indeed, the non-unitary judicial practice has as main source the existence of an overly dense set of normative acts that is constantly changing, but, on this background and based on the dialogue function of the mechanism established by the Completion for solving some legal issues, the role of the SCM in the process of unifying the judicial practice should be strengthened
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Law is generated, structured and directed in indissoluble relation to the constellation of values of the historical time in which it is elaborated, he himself accedes - under certain conditions - to the status of value. This osmosis forms the legal culture, an integral par t of the culture, by excellence spiritual universe, but also of the material values, on the basis of which, man asserts and realizes his human essence as a species. The rule of law is part of the development of history as a superior form of politico-social organization, validated as such by the historical experience, knowing a number of vulnerable aspects. We try in this communication to highlight the value impact of the legal culture on the rule of law through several significant issues, such as freedom, justice or rationality. In this context, some current coordinates of the rule of law are revealed in the vision of international organizations.
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In the legal systems that establish it as a formal source of law, the case law includes the practical experience of the judicial bodies that apply the right to concrete cases. In these legal systems, the judge can make decisions with general value, decisions that can become creative sources of law. Prior to the law as a source of law, jurisprudence did not have the same role in the legal systems, this role being different from one historical era to another, from one system to another. In contemporary law, the jurisprudence has its particularities, in relation to the legal system in which it is founded: in Roman-German law, the jurisprudence is the result of the interpretation and application of the law, carried out by the judicial body, according to the will of the legislator who adopted the legal norm; in Anglo-Saxon law, the precedent is the authority that a judicial decision can have in cases analogous to the one in which it was pronounced; In this system, the judge is not a mere interpreter of the law; he is the creator of law (judge made law). In Romanian law, which does not belong to the Anglo-Saxon system, but to the family of Romanian-German law, the jurisprudence has a special status. We consider two situations that underline the importance of the precedent in this legal system: the decisions of the Constitutional Court (which are general-binding and have power only for the future) and the decisions of the High Court of Cassation and Justice (in the case of the appeal in the interest of the law and in the situation where The High Court is called upon to give a preliminary ruling on the issue of legal issues). From the point of view of the present study, it is precisely these decisions of the Supreme Court, according to the two procedures regulated in civil procedural law and criminal procedural law. From this perspective, seeking to answer the question that gives the title of this study, we admit that, in Romanian law, the case law can be considered a secondary source of the law. The reserve attitude towards recognizing the source of the right of jurisprudence is based on the principle of separation of powers in the state: the adoption of laws is the responsibility of the legislator, their application, the responsibility of the judicial bodies. To recognize the courts the right of direct normative elaboration, would mean to force the door of legislative creation, disturbing the balance of powers (N. Popa).
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Starting from the fact that the dominant feature of life and implicitly of the social reality, is represented by the development within them, of some micro-realities with their own autonomy but interdependent, it results as a result: the existence of structuralism as an ordering element of the latter, as parts what are born, exist and act within the social reality as a system. In this way we realize that everything based on this social reality, at least from a conceptual point of view, reveals the nature of a supra-systemic element which thus appropriates this structuralist idea and allows the organizational action of structuralism. As a corollary to the fact that it is the most specialized superstructure of social reality and even more so to the fact that it is the most important such superstructure that reflects its action right on this reality, we become aware that law as a field of understanding, explanation, ordering and understanding of the social reality, must not be foreign to the idea of structuralism, in terms of its way of structuring like an articulated and specialized system.
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Fundamental rights and freedoms of citizens is not only a reality, they are not a new morality nor a secular religion, have multiple branches and theoretical implications, especially practical. Human rights are respected to the extent that they are known and are known only to the extent that known. Their knowledge regarding rights and fundamental freedoms is a key area of activity of state authorities.
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The Supreme Court of Romania has at its disposal a procedure whereby it can give a decision to unify the domestic case-law, namely the appeal in the interest of the law. The study examines all appeals in the interest of the law, from 2003 to the present. Typologies of the application of European Union law are taken into account, highlighting decisions in which the interpretation of the legal rules in the new codes in civil and criminal matters was taken into account. Appeals in the interest of the law followed the general social interest, the problems that were considered in unifying the case-law being in the field of criminal law, especially the European arrest warrant, then successive forms of the car registration tax and unfair terms
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The primacy of European Union law over national law was enunciated, as a principle, by the Court of Justice, which stated that the founding treaties of the European Communities had created a new legal order, integrated with the national order of the Member States, awarding precedence to community law/European Union law over national law whenever the two are in conflict. Although this principle is accepted, by national courts, when the conflict arises between EU law and ordinary, or even organic, national laws, the primacy of European Union law over the Member States’ constitutions has been repeatedly challenged by the constitutional courts in several Member States. The Romanian Constitution was modified in 2003, in preparation for Romania's accession to the European Union, which required integrating the acquis communautaire and modifying conflicting national laws. Consequently, up until the present time there have not been any conflicts between EU dispositions and constitutional ones. However, future changes in national or Union legislation might give way to such a conflict, in which case the Constitutional Court would have to decide whether it recognises the primacy of EU law over the Romanian Constitution. The article shall present the concept of primacy, the various perspectives on it as seen in the ca se of law of the Court of Justice and that of the Member States’ courts, and the relevant Romanian legislation.
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The common law experienced the greatest evolution with the Revolution of 1877 when the idea of an independent national American law appeared. The American law system is part of the Anglo-Saxon legal family, a judicial system, where the basic source of law is the norm formulated by judges and expressed in judicial precedents. The Supreme Court of the United States by some historical decisions has created precedents in shaping today's environmental policies. Thus, in the judgment Massachusetts v. Environmental Protection Agency, the Supreme Court wrote the „Climate History”. It is a decision that has sparked some of the most significant action taken by the US government to deal with climate change.
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In the field of legal protection of movable cultural heritage, there are two important sections concerning, on the one hand, the restitution by the Romanian state of movable cultural goods that have illegally left the territory of a EU Member State, on the other hand, the recovery of movable cultural goods that have illegally left the territory of Romania. The legal regime of the protection of these goods in domestic law is harmonized with the legal regulations in the European Union within the broad framework of the legislative integration at the Union level. The seat of the matter in the Romanian legislation is represented by Law no. 182 of 25 October 2000 on the protection of the mobile national cultural heritage. By Law no. 123/2017, it was amended in order to transpose into national law Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast). The EU legislation and the national legislation of the Member States create a system for the protection of cultural heritage objects, in this case, and cultural heritage, in general, at European Union level, governed by the principles of subsidiarity and proportionality, as laid down in the Treaty on European Union.
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The reviriment finds its motivation in the evolution of social relations in a state governed by the rule of law, but also in the evolution of legal thinking and practice, the jurisprudence of the ECHR being, in this sense, a real source of inspiration, a source of reviriment. In the context of judicial dialogue and constitutional jurisprudential convergence at European level, the reversal is necessary for the modernization of the legal ensemble of a Member State, being an instrument of the constitutional courts in the trend of alignment on the common path of modern constitutionalism.
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For the Romanian legal system, the jurisprudence does not have the quality of formal source of law. However, a legal reality, viewed from a historical perspective, has demonstrated the essential role of judicial practice in interpreting and applying the law, in constructing argumentative practices, in clarifying the will of the legislator and in discovering the less obvious meanings of legal norms and, not lastly, in the unification of legal thought and practice. Therefore, the case law, together with the doctrine, are an important component of the Romanian legal system. Based on these considerations, in this study we intend to highlight some aspects of constitutional jurisprudence. We emphasize its contribution to the emergence and development of the control of the constitutionality of laws, as well as to the interpretation of constitutional provisions and some normative acts regarding the character of the rule of law. Constitutionality control of laws is an important guarantee of compliance with the constitutional requirements of the rule of law. Jurisprudential interpretation of the constitutional names regarding the legislative function of the Parliament represents an important contribution of the Constitutional Court to the construction of the rule of law We uphold the role of jurisprudence not only in the correct interpretation and application of constitutional norms, but also in their construction, in discovering the normative meanings that are often involved only in the formal expression of the rule of law. Thus, constitutional jurisprudence is not limited to the interpretation of the rules of the Fundamental Law in conformity with the classical methods, but it also has an important contribution to the clarification and construction of some principles of law, to the constitutionalization of the whole legal system and of the judicial practice from all the courts.
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This paper tries to briefly address some of the legal effects deriving from communication of law generated by the jurisprudence of the High Court of Cassation and Justice of Romania and the Constitutional Court of Romania. During the recent years, certain legal interpretation divergencies were notices between the jurisprudence of the Courts. In both civil and penal matters brought before these Courts, their jurisprudence comprised sometimes contradicting solutions in similar cases. In addition to the introductory aspects that will be presented in this paper, regarding the communication of law and the role of jurisprudence as a possible source of law, we will also describe some concrete situations dealing with the divergence of opinion from judicial practice of the above mentioned Courts
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The Romanian Constitution, republished, contains rules which concern principle of separation of powers in the state government and principle of checks and balances, as we ll as rules that allow the Government, under certain conditions, to use the exceptional legislative delegation to adopt emergency ordinances, in extraordinary situations, whose regulation cannot be deferred, in areas reserved to the law, including in areas subject to organic laws.We analyze the issues regarding the way of legislating, by the Government, outlined as a rule in Romania in recent years, which has produced a shift of the constitutional role of the Parliament as unique legislative authority to the Government, which has in fact become a real legislator in almost all areas, as well as aspects concerning the subsequent role of the Parliament, which most often approves, with or without modifications or completions, and sometimes rejects, after considerable time intervals, the normative acts issued by the Government, in the absence of deadlines stipulated in the Romanian Constitution for the end of the parliamentary procedure. The analysis carried out briefly refers to the national constitutional framework regarding the legislative delegation in Romania, but especially the technical issues relevant to the new role assumed by the Government and the lack of any undoubted attitude of the Parliament for limiting the atypical situation in a democratic state, characterized by predictability and clarity of legislation. Also, the competences in this matter are analyzed, as well as the practice of the national institutions that can offer remedies when there are indications that the Government violates or exceeds the constitutional limits: the Constitutional Court, the Ombudsman, and the courts. In this context, the opinions of the European Commission for Democracy through Law (the Venice Commission) are also considered, and the conclusions show the importance of respecting the principle of sincere cooperation in full mutual respect between the state authorities/institutions, in order to ensure the balance between the powers in the state government.
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The author has aimed and succeeded to present the notion of civil servant, the role of the Constitutional Court and of the Supreme Court in defining this concept. In this meaning, we have used the method of the historical interpretation by searching the meaning of the notion of civil servant in the old legislation, the Criminal Code of 1864, 1936, 1969, 2004 and the actual Criminal Code of 2009. Also, have been presented significant decisions of the Constitutional Court and of the High Court of Cassation and Justice referring to the notion of civil servant or in connection to it, emphasizing the role of these institutions in performing the attributions stated by the Constitution and the organic laws governing the civil activity.
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Through the effects produced at international level, the European law is highlighted both by its autonomy and uniformity, but especially by the obligation applied non-discretionarily to all the Member States of the European Union, as a result of the establishment of an efficient system of judicial protection. The instruments created by the European institutions for the unitary implementation of the norms at national level have, over time, been widely applied, managing to cope effectively with the situations in which the principles of European law have encountered difficulties of application by the state jurisdictions. However, within the process of implementing European norms, a series of dysfunctions in relation to the national regulations have arisen, situations for whose resolutions have effectively competed both the pre-eminence of the European values, established in the treaties, and the exercise of the sovereign prerogatives of national law. At the same time, the states have created a set of constitutional mechanisms designed to facilitate the connection of European norms with the democratic and internal societal needs. In this respect, by linking national constitutional requirements to European jurisprudence, a fair and unitary relationship at European level of complementarity between objectives and means pursued and protection of human rights is created.
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The unifying role of the High Court of Cassation and Justice in Romania is realized - among other things - by solving the appeal in the interest of the law. Conceived as a procedural me ans meant to contribute to the unified interpretation and application of the law throughout the country, it strengthens the position of leader of the judicial order of the supreme court. The new procedural codes - civil and, respectively, criminal - substantially improve the regulations in this area, but in a limited and non-uniform way, as will result from the issues under debate. The lack of unity of the judicial practice is not an exclusive issue of justice in Romania, but the current dimension of this phenomenon constitutes a serious concern, a fact which is also noted in the documents of the European Commission and in judgments of the European Court of Human Rights. Non-unitary and contradictory practice generates legal insecurity and deepens distrust of justice.
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Constitutional Court Decision no. 26/2019 expressly stating that the courts had the possibility of removing the probationary procedures performed by the intelligence services as the Court ruled on the involvement of Romanian Intelligence Service in the act of justice and in the sanctions incident in these cases, it does nothing more than point out that where the absolute nullity intervened during the resolution of the cases, the subsequent regulation is necessary in order to remove the consequences of this nullity. According to the decision of the Constitutional Court of Romania, to which we referred, it turns out that the effects of the decisions of the Court occur, in pending cases and regarding acts drawn up based on the texts of law declared as unconstitutional, before the publication in the Official Monitor of the decisions of the Constitutional Court. Therefore, it is not justified to limit the application of such decisions only in the ordinary appeals or during the resolution of the cases, thus creating a discrimination between the previous cases and the cases after the appearance in the Official Monitor, the relevant ministry being able to take measures in this meaning through a legislative proposal.
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The article analyzes the theoretical and practical legal problems of defining public property, public domain and private domain, intra-domain transfer in Romanian legislation through the Romanian Civil Code of 1864, the Romanian Constitution of 1923, the Romanian Constitution of 1938, the Constitution of the Romanian People's Republic of 1948, the Constitution of the Romanian People's Republic from 1952, the Constitution of the Socialist Republic of Romania from 1965, the Constitution of Romania from 1991, as well as the developments that occurred in the mentioned fields with the adoption of Law no. 287/2009, The New Romanian Civil Code. The article also deals with the correlations of public property, public domain and private domain, intra-domain transfer through the prism of the New Romanian Civil Code, the Romanian Administrative Code of 2019 and the role of the Constitutional Court in configuring the national, county and local public domain
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The overthrow and overthrow of totalitarian, communist regimes that lasted for several generations and introduced radical changes in all structures of society - economic, political, ideological, cultural - and in life, the reorganization of these societies on a democratic basis has particularly updated the concept of the state. That should guide the evolution of the former socialist countries in accordance with the authentic social values of the developed democratic states. In this context and in the Romanian legal doctrine, various definitions have been proposed which, in one form or another, attempt to highlight the conceptual core of the rule of law. Thus, in Romania, immediately after the 1989 revolution the opinion was formulated that the rule of law is „a politico-legal concept that defines a fo rm of the democratic regime of govern ment from the perspective of the relations between state and law, between power and law by ensuring the rule of law and of the fundamental rights and freedoms of man in the exercise of power”. Another author notes the organization of the rule of law on the basis of the principle of the separation of powers of the state, in the application of which the justice acquires a real independence and strengthening by its legislation the promotion of the rights and freedoms inherent in the human nature, ensures the strict observance of its regulations by the whole of the state organs throughout their activity.
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The present study aims to analyze the legal regime of a newly established public office through the Administrative Code of Romania and, implicitly, the legal status of its holder. The genesis of this new function is in the legislative changes in the field of public procurement, based on the new Public Procurement Strategy adopted by the Government in 2015 and the laws adopted on the basis of it in 2016, respectively Laws no. 98, 99, 100 and 101 of 2016. The adoption of both the new normative acts and the relevant Strategy was determined by the need to harmonize the national legislation of Romania, as well as other Member States, with the new directives adopted in the subject of public procurement, national and European normative acts that we will specify in the content of the study. The concern of the bodies of the European Union to change the regulations regarding public procurement is legitimized by their significance, unanimously recognized, as the most important way to spend public money, regardless of whether we refer to public funds internal or from the European Union. What we believe was aimed at creating this function was to professionalize, in the body of civil servants, a civil servant who has the competence and experience to carry out activities in the field of public procurement. We share this option and consider it beneficial for the implementation of the new relevant legislation and for reducing and eliminating, over time, the problems faced by public authorities and institutions over time.
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The immediate enforcement of procedural norms in expressly included in national legislation and is also a general principle of law in the European Union, which provides that these norms apply to all pending criminal procedures upon the norms’ entry into force. As regards the immediate enforcement of Constitutional Court decisions, we note that this principle was consecrated by this Court’s case law in several decisions that established, in accordance with the provisions of art. 15 para. (2) of the Romanian Constitution, that courts of law shall directly enforce art. 21 para. (3), art. 124 and art. 126 para. (1) of the Romanian Constitution, which refer to the immediate enforcement of the provisions included in decisions of the Constitutional Court. In fact, the provisions of the law on the organization and functioning of the Constitutional Court expressly provide that the decisions finding the unconstitutionality of a law or ordinance or of a provision included in a law or ordinance in force, are mandatory.
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The Article analyzes the problems occured from the entry into force of the new codes, different interpretations of courts on similar matters of law, conditions to be fulfilled, the importance of the decisions made by prior rulings on matters of law.
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Being at the top of the hierarchy of normative acts in any of the legal systems of the states, the constitution lays the legal bases of the state, establishes the way of organizing the society in the state and the legal modalities /instruments for protecting citizens, ensuring their rights and freedoms. The assertion of the supremacy of the constitution implies the existence of mechanisms to control the conformity of laws with the constitution; therefore, it is strictly necessary to ensure the control of the constitutionality of the laws, of the subordinate legal rules. Without the existence of a sanction of violation of constitutional rules by one of the constituted powers, the principle distinction between constitution and laws gives way to a confusion of fact. As such, it is necessary to regulate a control, which aims to overturn unconstitutional legal rules. The legal doctrine includes a multitude of arguments in favor of the existence of this constitutionality control, as well as against it. On the one hand, it is admitted that the lack of control of the constitutionality of the laws leaves room for legal instability and confusions in fact. On the other hand, in an opinion unfavorable to this type of control, it is considered that the hierarchy of norms cannot be admitted because it implies the idea of hierarchy of organs,which contravenes the principle of separation of powers in the state, the control of laws is not admitted, the law being the expression of the will generals who are sovereign. In summary, we can say that the necessity of exercising constitutional control is due to the existence of the principle of separation of powers in the state, the principle of legality and the principle of supremacy of the constitution.
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Despite the evident need for rationalization and systematization of the existing legislation, of the propositions and assumptions of jurisprudence, and even the pertinent official concerns, the codification of environmental law leaves, in Romania, much to be desired. After the failure of such a project, started and proposed by the first framework-law in this field after 1989 (law no. 137/1995 regarding environmental protection) which had to be completed by 18 special laws in a cohesive corpus and some official declarations invoking the necessity of such an effort, the issue has remained a concern exclusively for the specialists in the field. In this context, starting from the state of the Romanian environmental legislation, the particularities, the situation and the development perspectives of environmental law, under a European and global impulse, this paper argues in favor of the need to rationalize and systematize, by codification, the legal regulations on this field, also revealing possible forms of doing it (by showing the pros and cons of each of them). A special place is occupied by the analysis and identification of the necessary innovations and developments, in this perspective, of the existing legal framework and the foreshadowing of a consistent theme plan for a future code of the environment. Moreover, from the point of view of judicial technique, come into view the necessary and possible steps of the process to elaborate the preliminary draft of such a complex regulation.
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Judicial practice, particularly in higher courts, is an increasingly important argument for the sentencing of legal disputes, which is also part of a phenomenon that is al so manifested in other systems of law, which is the strengthening of its status of an effective source of law in general, and administrative law, in particular. If, at the Supreme Court level, for reasons primarily concerning its role in the unification of practice, access to jurisprudence is to a decisive extent, the lower courts offer such public service only in a limited and selective manner. The absence of explicit regulation of judgments as information in the public interest and of a regime of access to them, or of the general obligation of courts to make them public, at their own motion or at request, in full, together with the conflicting positions expressed over time by the Superior Council of Magistracy, led to an ununified application of Law no. 544/2004 on free access to public interest information. The projects of online publication of judgments in public-private partnerships are not such as to rigorously satisfy the requirements of the principle of without charge and free access to judgments, and the practice of selecting and publishing „relevant” court rulings creates distrust, in terms of without charge and free access objectives, given the lack of criteria to establish such character. A future law solution is either the explicit regulation of the judgement as part of the category of public interest information, with the establishment of the related regime, or the establishment, by the law of the organization and functioning of the national judicial system, of the obligation to publish the given rulings, in full.
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The article briefly examines the problem of repairing the damages caused to the persons injured by administrative acts, by the unjustified refusal to solve a request or by the failure to solve it in time. In applying the dispositions of art. 52 paragraph (1) of the Romanian Constitution, the public authorities and institutions are responsible for patrimonial damages, for material or moral damages caused by administrative acts, in typical or assimilated form. This administrative-patrimonial liability is doubled by the joint and several patrimonial liability of the dignitary, civil servant or contract staff for the material or moral damages caused by administrative acts. The legal provisions confer a passive procedural quality to the person who contributed to the elaboration, issuance, adoption or conclusion of an administrative act only if it is called in court together with the public authority and only in the case where the request for a court has the object, besides the cancel of the act administrative or obliging the public authority to solve a request, and the payment of damages for the repair of the damages by the typical administrative act or assimilated. The right of the person injured by an administrative act to repair damages, material or moral, constitutes an essential guarantee for the observance of the fundamental rights and freedoms guaranteed by the Romanian Constitution.
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The rapid evolution of science and technology has conditioned the rethinking of traditional human rights. Scientific and technological progress creates opportunities and challenges for normative systems in building and strengthening fundamental human rights. The analysis of the relationship between human rights, science and technology seems to be extremely complex, due to the novelty of this subject. Research in this domain differs in terms of multitude, while a well-defined doctrinal vision is not yet outlined. It is necessary to substantiate the binary legal relation between law, science and technology, identify core elements and right balance between them, also identify new forms of violations caused by the use of new technologies, as well as to correlate human rights development at a level corresponding to a contemporary knowledge society. This paper addresses some aspects of the interaction between human rights and the progress of science and technology, as well as argues the need to adjust the development of fundamental rights, by clarifying doctrinal issues and incorporating solutions provided by jurisprudence.
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The paper addresses the controversial issue of interference between labor and human rights, bringing into question the possibility of protecting the worker not only as a contracting party, but as a person. From a structural point of view, the analysis is carried out on two levels: theoretically, by presenting doctrinal differences in the matter, and jurisprudentially, by referring to solutions of the ECHR, the Constitutional Court and labor courts in the matter. Somehow, we could say that the two approaches - the labor law and the human rights protection - meet in the jurisprudence in the middle of the road, no longer being differentiated by the purely collectivist character of the first and the purely individualizing of the second. The worker-citizen, as holder of the fundamental human rights, can claim, on this foundation, even specific rights, otherwise, to the labor relations. The problem remains open, but the reality is that human rights have enriched the figure of the employee-individual, by feeding the legal order by the rights and freedoms of the human person
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The previous judgments given by the High Court of Cassation and Justice for the unraveling of some questions of law, without creating by themselves new legal norms , obligingly impose a certain interpretation of the legal provision for the courts. The interest in ensuring a unitary practice of the courts through this institution is not without criticism. Even if, in relation to our system of law (of the continental type) it was refused to recognize the Romanian jurisprudence the role of source of law, it should be noted that in particular cases the identification of the need for normation of certain social relations was notified by the courts, and subsequently the law took over as such the legal institutions as they were configured during the court practice. In this context, some texts of the Labor Code - Law no. 53/2003, they were given a jurisprudential interpretation, meant to ensure a unitary practice.
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In principle, the law is defined by the normative acts that regulate it. In the configuration of the law, the role of the High Court of Cassation and Justice, but also of the Constitutional Court are specified through the legal texts. They are called upon to rule where either the provisions of the supreme law of the country are violated, or the texts of the law are liable to different interpretations, thus giving rise to different solutions of the courts applying the law. That is why the role of the two courts, one judicial and the other constitutional, is particularly important in terms of the consequences it determines. What is established by a decision of the High Court or of the Constitutional Court can be contradicted only by another decision issued by the same court, or without effect by modifying the law. Starting with 2009 - the entry into force of the New Penal Code and continuing with the entry into force of the other codes: penal procedure, civil and civil procedure, on the one hand, the legal language used in the old codes was wanted, and on the one hand putting the law in line with the innovations and changes undergone over time. But the new codes were far from perfect, some of them even needed to be republished, and the High Court and the Constitutional Court were insistently called upon to cover all the shortcomings and illegality found, so me decisions having even interdisciplinary impact, such as the Procedural Code. in conjunction with the Labor Code.
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The respect for the best interests of the child in any matter concerning children, regardless of the identity of the decision maker, is a pillar designed and recognized in the Romanian law. In this context, the meaning of the collocation depends on the plaint upon which the court is summoned to decide. In any case though, the child must always be prioritized in what concerns the measures taken in order to protect him or her from a personal and material point of view. One of the guarantees regarding carrying out the best interests of the child is establishing the competence of the courts of justice which are apprised to solve such plaint s. To this effect, the High Court of Cassation and Justice decided upon the general competence and the territorial jurisdiction of the court – through decisions pronounced both by the Civil Chamber and during appeals on points of law – in the cases when the courts are solving plaints regarding the establishment of a set of measures concerning the situation of the children and their parents. The content of the 114th Article from the Code of Civil Procedure in relation to the general rule regarding the competence is defined through the jurisprudence of the High Court of Cassation and Justice in order to fulfill the purpose of protection, for which it has been regulated. Also, interpreting the legal dispositions concerning the family law cases that can be solved through mediation carried out by the supreme court is useful for the unification of the judicial practice of all the courts of justice in the country.
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The father and mother are obliged, to provide support for their minor child, as provided by article 499 para. (1) of the Civil Code, contributing to the payment of support, in proportion to the means at their disposal, but also according to the needs of the minor. The support obligation of the parents towards their minor children is solidary, in the way that each parent can be kept separate for the entire obligation, and its execution by one of the parents can release the other parent from the payment of the debt towards the children.The minor has the possibility to request support from either of his parents, and the parent who has fulfilled the obligation over his legal part of the contribution, has the right to go against the other parent to request the restitution of the part he paid over the owed part. However, the minor's right to support has a complex character, which includes, besides to the parents' obligation to ensure the necessary material means of subsistence, their duty to take care of the child's harmonious development, health, physical, mental and intellectual development, of his education, learning and professional training, according to their own beliefs, but also to the characteristics and needs of the child.
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The article presents the development of the institution of forced co-ownership in terms of disposal acts that co-owners may exert, since the adoption of the new Civil Code untill present, including the Constitutional Court jurisprudence perspective. Mismatches in the correlation of certain legal texts of legislation governing this area are highlighted, before changes of the New Civil Code by Law nr. 60/2012 and after this change. Finally, regarding the practical importance of forced co-ownership administration, an analysis of comparative law is made and it is showed why it would be preferable regulations of other legislation who treats the forced co-ownership in a more rigorous and also classicist manner.
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The New Romanian Civil Code (Law No. 287/2009) regulates in articles 1730-1739 the general procedure regarding the exercise of the pre-emption right in the case of the sale contract, following the a priori or a posteriori method. Law no. 17/2014 (in force from April 11, 2014) regulates, through a special procedure, the obligation to respect the right of pre-emption for the sale and purchase of the agricultural lands loca ted outside the city limits, which belongs to the co-owners, lessees, neighbours owners and the Romanian State, through the State Domains Agency. Considering that understanding the right of preemption in its present form is not an easy task, This article aims to present in a logical manner the decisions of the Constitutional Court and of the High Court of Cassation and Justice, relevant for the pre-emption procedure and for the process of implementing the Law no. 17/2014
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A judicial authority found the crime against the background of initiation of actions for the establishment and functioning in accordance with the law of T.R.C. II R.F. High School from T.M. On 2017 the Law was passed establishing the T.R.C II R.F. High School from T.M. for legalisation. By decision no. 118/19.03.2018, Constitutional Court sustained the objection of unconstitutionality, noting that the above-mentioned Law was unconstituional. Neither the measures initiated at public institutions within the executive authorities nor cases pending before the courts failed to legitimize the set up of above-mentioned High School, the fundamental right to learn of interested people being not respected.
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The article aims to provide an analysis for the infraction of „dampening the disease control”, regulated by Article 352 Criminal Code, from the perspective of complying with the exigencies of the incrimination legality principle related to lex scripta and lex certa. In this respect, the provisions of the above-mentioned framework incrimination are examined mentioning the decisions of the Constitutional Court and the provisions of the completing guideline. Therewith, de lege ferenda proposals are issued with reference to the definition of some concepts such as „quarantine”, „home self-isolation” or obligations incumbent to the recipients of the criminal law for preventing or controlling the infectious diseases
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The principle of proportionality is an exception from the rigidity of the principles of law and fundamental rights as a result of the effects obtained, respectively a coherent legislative system, focused on the decisions of the constitutional court related to the prerogatives established by the Constitution in the matter of timely and effective regulation of the fundamental principles and rights within the rule of law. Viewed as a constitutional standard, the principle constitutes an instrument of the constitutional judge, through which he can reconceptualize the existing constitutional texts by adding new valences in line with the dynamics of the democratic state. Proportionality is therefore not only an interpretative method of the legislative norm, but also a general principle of law, through which the existing conflicts between competing constitutional values are optimized, which require a certain limitation so that each one can reach its optimal purpose in conditions of normative balance. Therefore, the reception of the principle within the rule of law must aim at creating and sustaining a balance be tween fundamental rights and freedoms, on the one hand, and competing constitutional principles, on the other. Otherwise, an alteration of the purpose of proportionality can be generated within the constitutional analysis at the legislative level, with negative effects on the democratic balance of the state powers.
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Respecting the standards regarding the lawmaking process is essential in ensuring the effectiveness of the principle „Nemo censetur ignorem legem”. When the legislator does not respect the basic principles in lawmaking, this can lead to a non-unitary practice and even a lack of conformity of the legislation with the Fundamental Law. The negligence of the drafting of the criminal codes has caused many confusions, the solution of which has been found in the vast jurisprudence of the Constitutional Court of Romania and the jurisprudence of the High Court of Cassation and Justice.
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The present study aims, starting from the presentation of the constituent elements of the single crime of money laundering, as identified by national jurisprudence, to identify an objective criterion for delimiting the crime of money laundering in relation to the predicate offense, from the perspective of content autonomy. constitutive of the two facts provided by the criminal law, drawing a limit of the subsidiarity report, as fixed in the judicial practice and in the specialized literature, without having the claim of completeness. Although there is no unanimously accepted point of view in the literature or in the specialized doctrine, we consider that the crime of money laundering acquires autonomous corpus, insofar as the active conduct that is confined to its material element (respectively the change or transfer, the concealment or the concealment), acquisition, possession or use) is preceded or accompanied by the use of fraudulent maneuvers.
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The article is based on the idea that the rulings of the Constitutional Court are governed by the principle of the supremacy of the Constitution, a principle which is an indisputable result of art. 1 para. (5) and art. 16, para (2) of the Constitution. As a result of said principle and the fact that the Constitution is at the very top of the piramid of sources of law, fundamental law exhibits an indisputable hegemony over all the formal sources of law, setting both principles and basic directions.
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The author considers necessary to emphasise the correct legal classification of family abandonment, incriminated by the provisions: art. 378 of criminal law. And at the same time, the problems of care are raised by the criminal practice to be discussed. The controversy upon this issue requires analysis, equal interest, legal regulation in civil and criminal matters, which intertwine and necessarily shall be conditioned, in assessing if the the felony of family abandonment occurred in one of the three hypothesis incriminated by the quoted article.
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The introduction in the Romanian Criminal Procedure Code of February 2014 of the mechanism of preliminary judgments aimed at unifying the judicial practice and creating predictable jurisprudence by solving in a mandatory manner a legal problem on which the solution of the case depends. The high number of requests from the national courts which were addressed to the Supreme Court have de monstrated its undeniable utility, the procedure being meant to contribute to the safeguard of the principle of legal certainty. Therefore, the procedure’s importance in itself determines the need for issues such as the exclusion of possible claim holders, the composition of the trial court, the delimitation of the scope of recognized specialists who can be consulted, the judgment without summoning the parties and the existence of contradictory preliminary decisions and unconstitutional decisions to be examined from a critical perspective in order to analyse if they have deficiencies and if so, if they can be removed.
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In fulfilling the constitutional role of ensuring the unitary interpretation and application of the law, the High Court of Cassation and Justice has a new mechanism, namely that of issuing a preliminary ruling for the disclosure of some questions of law, together with the other mechanism available to the supreme court and namely the appeal in the interest of the law. Unlike an appeal on points of law, pursuing the same goal, namely the unification of jurisprudence, preliminary rulings do not intervene after the final resolution of cases but before resolving them, so they can not affect the criminal judgments already delivered. That we face a mechanism that does not value an appeal but is a procedural incident which solves a question of law has arisen in an ongoing process and depends on the merits unraveling.
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In the criminal trial, the judgment is one of the most important procedural activities because during the trial the conflict of criminal law deduced from the judgment is resolved. It establishes the existence of a criminal offense, the guilt of the perpetrator and the application of sanctions. By exercising the remedies, a new criminal procedural report is not born, but the initial one is extended, in a new phase of the criminal trial. Likewise, by exercising the remedies, it is not determined the promotion of a new criminal action, this constituting a way of exercising the initial criminal action, by moving to another procedural phase. The extraordinary remedy of the review may be exercised against the definitive judgement, having the character of a retraction appeal which allows the criminal court to revert to its own judgment and, at the same time, the character of a factual remedy, by which are established and eliminated the judicial errors in solving the criminal cases. The review is formulated against a judgment that has acquired res judicata, based on facts or circumstances that were not known by the court in resolving the case, discovered after the trial and which prove that the judgement is based on a judicial error.
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In this paper, the author carries out a brief analysis of the case-law of the High Court of Cassation and Justice and of the Constitutional Court of Romania on the offence of false testimony. In the first part of the paper, some terminological clarifications are made, in the second part the relevant judgments given by the Supreme Court are identified, and in the third part the decisions of the Constitutional court are analysed, with regard to the offence of false testimony. In the latter part, acting as a conclusion, the author's considerations regarding the way in which the case-law previously under consideration influenced the interpretation and application of the incriminating texts are met.
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In this paper, the author carries out a brief case-law analysis of the Constitutional Court of Romania, which is relevant for the configuration of the complaint against non-prosecution and non-indictment solutions. The article is structured in four parts. The first concerns a brief history and a list of legislative changes to the reference provisions. The second and third parts examine the case-law of the Constitutional Court of Romania with regard to Articles 340 and 341 of the Criminal Procedure Code, and the last part, acts as a conclusion, which brings together the author's considerations relating to the analysis undertaken.
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The judge, when determining the factual framework of a criminal trial, is often required to adress to some technical issues to find out whether a particular fact meets the constituent elements of a crime. The technical support offered to the prosecutor or the judge in the criminal process should be provided by persons who have the status of expert and who prepare expert reports, which are means of evidence in the criminal process. The legislation that norms the conditions for disposition of an expert report has changed in recent years, being challenged on several occasions for constitutional flaws. The Constitutional Court of Romania through its decisions had a major role on the current configuration of the criminal procedural rules that regulate the expertise in the criminal process. In this context, it can be argued that the case law of the Constitutional Court has influenced the criminal procedural legislation in the field of scientific evidence, having particularly important consequences in the criminal cases on the role of the Romanian courts.
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The Criminal Procedure Code in force no longer provides as the final moment of the civil part constituting the moment before reading the referral document, specifying that such a constitution can be made until the beginning of the judicial investigation - art. 20 paragraph (1) C. pr. pen.and art. 353 para. (3) C. pr. pen. The civilly responsible party can be introduced, according to art 21, alin. (1), C.p.p. as modified through CCR Decision up until the end of the criminal persecution by the person in right according to the civil law, in order to be able to formulate requests and to raise exceptions in the preliminary chamber. So, the civil party, as the person in right by the civil law, can ask to be introduced the civilly responsible party by the end of the criminal prosecution. On the other hand, the injured person can constitue as a civil party, as art. 20, alin. (1) C.p.p. statues, up until the beginning of the judicial research. Therefore, in the situation that the civil party is not constituted up until the beginning of the preliminary chamber and she does not ask to be introduced the civilly responsible party is there an infringement of the right of the prosecuted? Nor the ones of the civilly responsible party? Are there any remedies?
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As a rule, as we will show, the person injured by an unlawful act that may represent a criminal offense criminally has the following options, as an expression of the principle of availability that governs the civil matter: he has the freedom to choose to stay in passivity or to act in order to recover the damage, according to the principle of Latin origin nemo invitus agere cogitur; when it intends to recover the damage suffered, it has the possibility to try to recover it, either amicably before any judicial procedure or during it, or to try to repair the damage by calling on the coercive force of the state; when it chooses to take legal action, it has the option to join the civil action to the criminal one or to make claims before the civil jurisdiction. In this way, both the civil party and the responsible civil party have their rights covered... what happens to the defendant? In the event that the action in the claims is used in the criminal case, the civil action becomes an institution of criminal procedure.
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The Constitutional Court and the High Court of Cassation and Justice have a very important role in crystallizing the jurisprudence of national courts. Following the decisions of the Constitutional Court admitting exceptions of unconstitutionality, the legal practice of the courts had to change in certain procedural aspects, even if the legislator did not intervene to amend legal texts declared unconstitutional, such as the legal impossibility of before the beginning of the criminal investigation, the criminal investigation bodies may also order the performance of fiscal controls, in order to comply with the constitutional provisions of art. 16, 21 and 24, at the hearing of the minor aged between 14 and 18 it is mandatory to summon his parents or, as the case may be, the guardian, curator or person in whose care or supervision the minor is temporarily, as well as the general social assistance directorate and protection of the child from the locality where the hearing takes place, the absolute nullity of the evidence obtained as a result of the technical support offered by the Romanian Intelligence Service for the execution of the technical supervision mandates. The High Court of Cassation and Justice influenced the jurisprudence of national courts on the legality of evidence even if it was by non-binding decisions, for example regarding the legality of technical-scientific findings, defining urgency in relation to the need for fair prosecution guidance in carrying out the activity of criminal prosecution, as regards the sanction applicable if the criminal prosecution bodies did not proceed to record the hearing of the suspect, the possibility of hearing the judge, as a witness in a trial whose object is to commit an offense in connection with the deliberation process, regarding the way in which together with the other members of the panel they decided on the solution etc.
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The article briefly examines the main aspects related to the referral of the court in the procedure of a plea bargaining, uncluttering the unregulated issues with which the courts may face. With the conclusion of a plea bargaining agreement, the defendant forgoes the right to be tried in a joint judicial process and deprives himself of a series of rights. Regarding these issues, the defendant will have to weigh vigorously if necessary to initiate such a procedure, and will proceed as described only if it has certain benefits and will fully understand the consequences of a such procedure.
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In the present communication, we intend to analyze in part the clarification of some issues related to the assessment of evidence in criminal proceedings, without cl aiming to deepen them, a situation that would have required examination in a broader context and in a space that should have exceeded the content of a scientific communication.
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The objective of forensic science is that of discovering crimes and identifying perpetrators, in such a manner to reach solving penal cases under principles of legality, fairness and constitutionality. At the same time, achieving the scope of forensic science is based on investigating crimes, as well as solving them legally and substantially, also based on conclusive, useful and genuine evidence. Administering them will conclude in finding truth in penal cases, which will be reflected upon judicial decisions and finally upon achieving the scope of penal proceedings. Forensic investigation of crimes means the basis of penal investigation, carried out during the investigation phase. The current paper focuses on the means, methods and tactics provided by the forensic science, as a science of technological progress, of discovering and investigating offenses in order to gather scientific evidence, as well as to identifying perpetrators. The main principles of forensic science are provided to judicial bodies in purpose to re-establish the legal order in a fair manner, legally, under the constitutional principles which will be taken into account. The methodology used in researching the current paper is featured by a qualitative approach which will provide the most relevant conclusions, achieved in the end of the doctrinal study.
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The solutions given by the Constitutional Court and the High Court of Cassation and Justice have shaped the application and the interpretation of the law, including the jurisprudence, in the matter of the execution of the prison sentence. In order to identify these effects, several decisions of these two court sand legal doctrine were analyzed. The results show that, in the execution phase of the sentence, in case of solving the appeals provided by Law no. 254/2013, for the convicted person, the presence before the court and the legal assistance are not obligatory, the activities in the execution phase are not subject to the procedural rules specific to the trial phase, it is not compulsory for the justice act to be free of charge and conditional release is not a right, but only a vocation. The court in whose district the place of detention is located, at the date of the request of the convicted person, must resolve that request, the executing court or the court in whose district the place of detention is located, solve the request of the convicted person for granting the compensatory days, and the incomes resulting from the work of the detainees, during detention, can be with held for the execution of fiscal debts established by the court decisions.
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The application of the compensatory mechanism in good conduct times, conceived as a general measure of relieving the detention institutions, as expected, has create d certain problems regarding the legal interpretation of some situations. One of these situations was the one regarding the competence of solving the application by which a person deprived of liberty requested the granting of the compensatory days for the rest of the sentence resulting from a previous conviction and which was found in the sentence in which the execution was. The legal problem was solved by the High Court of Cassation and Justice by Decision no.8 of March 11 th , 2019, a decision that we discuss in the article
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This article is a continuation of the one published last year on the effects of ECHR decisions on criminal enforcement legislation. This time the premises from which we started were the jurisprudence of the Constitutional Court and the Activity Report of the National Administration of Penitentiaries for 2019.
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Current paper underlines the difficulty to establish a unitary approach, necessary for interpretation or for enforcement of legal concepts recently introduced in Romanian legislation by national or European jurisdictions. Between all new concepts specific for criminal trial, the concept of pretrial chamber represents a legal novelty challenged both from the perspective of its opportunity and its availability
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As is well known, in the practice of our supreme court, as in the case of other courts, some issues have arisen regarding the transitional situations in the succession of criminal laws. Thus, in this paper, the authors analyze in detail the transitional situations; transitional provisions; interpretive laws; the principle of extra activity of the criminal law; mitior lex; lex tertia; difficulties in determining the more favorable law in relation not only to the main punishments, but also to the complementary punishments that accompany the main punishments; the optional application of the more favorable law after the decision remains final; the application of the more favorable criminal law after the final judgment of the case; temporary laws (actual temporary laws and exceptional laws); safety measures; prescription.
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Law 286/2009 on the New Penal Code and Law 135/2010 on the New Penal Procedure Code were adopted by assuming the Government's responsibility for the draft law. The appearance of the normative acts has produced numerous changes in the legislative plan, which have not been avoided by some inadvertents, omissions or terminological errors in the field of the pursuit and sanctioning of the different types of crimes. The remedy for the deficiencies found in the active legislative fund is made through an appeal in the interest of the law by the High Court of Cassation and Justice, which gives a general „interpretation” to a matter solved differently by the courts, or by solving an exception of unconstitutionality. to the Constitutional Court, legally notified, when considering the enactment of a normative act in accordance with the fundamental law. In the latter case, the Constitutional Court had an important role in shaping the law after the entry into force of the two mentioned codes.
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The objective of the present paper is to identify the main components that have led to the emergence of cybercrime, as well as to conduct a brief analysis on how elements of a technical and technological nature interact with the human factor and thus create the premises for committing crimes.
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The context of the health crisis generated by the Covid-19 pandemic represented a good opportunity for the digitalization of the judiciary to evolve, feeling more and more the need to change the paradigm in summoning and communication of procedural acts. In this study, the authors aim to make a critical analysis of the current legislative framework, viewed from a historical perspective, of the means of communication of procedural documents, highlighting the difficulties encountered in judicial practice. In the final part of the study, the authors formulate several de lege ferenda proposals, likely to streamline the activity for the courts
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In order to fight against the effects of the COVID-19 pandemic, the authorities took a series of measures which had as object the restriction of some of the rights and liberties granted or, as the case mey be, defended by the Romanian Constitution, such as: the right to free movement, the freedom of assembly, the economic freedom. The measures taken by the authorities had a major impact upon the entire social and economic life and generated in many cases the total or partial interruption of the activity of some economic operators, with the consequence of the appereance of financial difficulties hard to overcome and even with the risk of the disappearance from the market of some economic operators. The current study refers to the amendments adopted by the legislator to the legal provisions regarding one of the fields of interest and continuos topicality of the economic and legal life, respectively the insolvency proceedings, with an emphasing on the amendments of the legal provisions related to the proposal and the implementing of the reorganisation plan, as well as case-law regarding the application of such amendments.
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Resilience is achieved through synergy, the two sine-qua-non conditions in order we may not be subdued by the times and overcome such difficult pandemic times… In the notarial activity, the modern digitization measures which became necessary years before this sad pandemic period we are facing have proved to be appropriate and also mandatory as a solution within the framework of the adequate and cautious medical decisions, which need to regulate such circumstances which belong to the events of force majeure. Under such disturbing circumstances, which naturally generate solutions as well, and overreactions and errors, the notarial activity as a service of public interest has not been interrupted, moreover, the notary public being obliged to ensure the continuity of the entire category of legal facts and deeds based on which the civil legal relationships – civil circuit emerge.
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The year of grace 2020 brought a unique situation for our society, in the context of pandemic situations never seen before by contemporaries. The danger of losing one's life but also the fear of the unknown has determined and continues to determine a state of insecurity that is fundamentally reflected in all areas of society. Of course, the sphere of trade could not be avoided, this very important area of the economy being severely affected by all the measures that have been taken to combat, limit and prevent the spread of the virus. Thus, the commercial contracts suffered, the non-executions of the contract being very common, just as the delays or non-conformities increased. Also effects on trade were the decreases in the number of transactions and the clientele that used the goods/services of traders, given the travel limitations and restrictions imposed during emergencies and/or alerts.
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As a result of the coronavirus crisis, it seems inevitable that the number of commercial disputes will increase and, in this environment, arbitration has proved an agile, resilient and also flexible, adaptable mechanism to the challenging times to which it is subjected. However, arbitrations have continued during the crisis not just because of the scope for controversial situations arisen due to pandemic, but also because some court litigations have been postponed or stopped for a while and especially due to the extended court closure arising from the pandemic restrictions. Therefore, the viable solution remained arbitration. Arbitration growth its strength with parties selecting it over litigation for more different practical reasons, even from the negotiation stage, when parties expressed more inclination and interest towards arbitration. The impact of coronavirus has forced arbitral institutions, parties, their counsels and other participants to act and quickly adopt new modern means of electronic case management tools to convene virtual hearings. In this respect, protocols and relevant guidelines to remote procedure have been promulgated in order to offer the necessary flexibility, the tools and a steady mechanism required to resort to arbitration. The arbitral institutions contributed to the arbitration stability and foreseeability by cooperating and issuing guides for the use of the technology in the most effective and efficient possible way, to achieve a world prepared to face this new coronavirus era. That is why we consider that these virtual tools should be adopted also for the future, to benefit of them in the post pandemic era.
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During the Covid 19 pandemic, labour law provided some of the most effective levers for limiting the effects of the economic crisis that accompanied the sanitary crisis. It is further evidence that labour law, which is flexible and adaptable, can be used in crisis situations as a tool for restoring social and economic relations. Each Member State has implemented its own strategies, but some common elements can be easily identified. The study aims to highlight the Romanian options and their effects in terms of labour relations, in the context of a comparative law analysis of policies to reduce the economic consequences of the pandemic crisis. The main measures envisaged are the suspension of employment contracts and the reduction of working time, both of which aiming to avoid redundancies and to maintain a minimum level of workers' income.
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The state of emergency established in Romania on March 16, 2020 by Decree no. 195/2020 and extended until May 14, 2020 by Decree no. 240/2020, was followed starting with May 15, 2020 by the state of alert at national level, for a period of 30 days, declared by Government Decision no. 24/2020, subsequently being extended successively. In this context, it has been necessary to adopt by law restrictive measures, essentially temporary and, where appropriate, gradual, proportionate to its predicted or manifested level of severity, necessary to prevent and eliminate imminent threats to conventional, Union and European rights. constitutionality to the life, physical integrity and health of persons, in a nondiscriminatory manner, and without prejudice to the existence of other fundamental rights or freedoms. Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic, in section 3 (art. 16-31) established a series of measures to adequately protect labor relations. The following were considered: employment without examination or competition in the public sector; modification, suspension and termination of individual employment contracts; working time and rest time; granting days off to salaried parents for the supervision of children; prolongation of the validity of collective labor agreements and collective labor agreements, etc. Other normative acts developed during this period also regulated various situations, such as technical unemployment; reduced working week or temporary reduction of working hours (Kurtzarbeit) etc., aspects that we will analyze in this study
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The article analyzes the teleworking during the Covid-19 pandemic, a short history, conditions, benefits of teleworking, development, the need to ensure economic support in the pandemic period, and the unexpected growth of teleworking.
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:The exercise of parental authority over the child and its assets belongs jointly to both parents and it aims to ensure the conditions necessary for the child's upbringing and development of the child’s personality, as well as the protection of the best interests of the child. In the event that one of the parents is dead, missing, unable to express his or her will or if by court decision one of the parents has been granted the exclusive exercise of parental authority over the child, parental authority is exercised exclusively by one of the parents. As for the child’s assets, there is a special situation in which one of the parents is a minor, having limited ability to exercise parental authority. According to the current case law, the exercise of parental rights and the fulfillment of parental obligations regarding the child's assets encounters certain difficulties, especially in situations in which only one of the parents has the right to exercising parental authority. The problem mainly lies in the necessity and opportunity for the guardianship authority to authorize certain documents that the parent must conclude, regarding his or her child’s assets.
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In the present study, we try to answer the question of whether or not the social investigation, in proceedings with minors, is a means of proof, given that Article 374 of the Civil Code on divorce by consent of the spouses does not mention the investigation. social, the only obligation mentioned in the court being to verify the existence of free and untainted consent of each spouse. we also show that the only clear mention of the obligatory social investigation in the civil code is found in article 375 par. (2), which explicitly mentions the manner in which the divorce is established by the agreement of the parties by the notary public. In conclusion, we show that the social investigation is a means of proof and the only institution expressly provided by the legislator to request a social investigation report for divorce by agreement is the court.
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The processing of personal data is legal if the conditions of Regulation (EU) 2016/679 - GDPR are met. Regarding the legality of the processing, the article focuses on the processing of personal data under the conditions of art. 6 GDPR: processing is necessary for the performance of a contract to which the data subject is party or in order to enter into a contract. The article draws boundaries between this legal basis for processing and consent-based processing. The crisis caused by the Covid-19 pandemic brought many challenges, the article analyzing some aspects related to the processing of personal details in the context of the Covid-19 crisis.
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To state that the exception of a non-performed contract has as single end performance of corresponding obligation means to limit its effects and to create an idealistic vision of the discharge of obligations. While it was initially aimed at ensuring observance of the predefined order of reciprocal/bilateral contract or relationship performance, the exception of a non-performed contract could play an important role against the risk of non-performance, or even against a nonperformance given notice of before the due date. The interpretation of Article 1556 in conjunction with Article 1270, both of the Civil Code, added to other practical arguments, substantiates the need to expressly recognize this exception an active role, and not just a passive constraining role in the conduct of the underlying relationship. When the non-availability of performance affects the debtor only temporarily, the creditor has been recognized by the lawmaker, under the provisions of Article 1557(2) of the Civil Code, the possibility to opt for either having its own obligations suspended, or termination of the contract. Moreover, considering the provisions of Article 1534(2) of the Civil Code, the party injured by a contract's nonperformance is required to take reasonable steps to limit its adverse consequences.
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All societies involve a minimum general agreement on values but certainly on the existence of conflicts. The disasters and injustices that people face in various parts of the globe are not just misfortunes that must be endured, but legitimate grounds for action compliance with culturally desirable normative models of the behaviors of most individuals and social groups. This complex and contradictory process is shaped by the interference of various processes of socialization, adaptation, integration and social control. The contemporary social crisis, with one of its acute expressions created by the pandemic situation created by Corona Virus, requires in the highest degree the mobilization and rethinking of knowledge resources related to society, its contemporary physiognomy, the strategy of orienting the functions of law in times of instability , conflict and social slippage. In this sense, we try some reflections that can be capitalized in the process of elaboration and application of the law in the current situation.
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This article tackles some aspects related to the features of the natural law school of thought, with regard to its traditional approach, as well as possible changes in the perception of concepts drawn by this current in the field of law as a result of social changes generated by the Sars-Cov-2 pandemic. Natural law is one of the most studied school of thought in law, being based on the concept of immutable and aprioristic law. Thus, the features of natural law seem at first sight unaffected by health crises in general and therefore by the health crisis caused by the Covid pandemic 19. The vast majority of natural law theorists accept a dissociation between the features of natural law, in their pure, immutable form and the perception of these features and their applicability in the mundane universe. The perception of natural law paradigms, once almost as immutable and inflexible as the essence of natural law itself, which they reflect in a still imperfect mirror, has been influenced by the obvious perceptual changes of a social nature that the pandemic has caused in the last year and a half. Consequently, this article contains some analyzes and correlations between the social effects of the pandemic and the changes that these effects have brought to the perception of natural law. The finality of the conclusions will try to illustrate a new configuration of the perception of law. naturally in a post-pandemic and even inter-pandemic universe.
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The Covid-19 pandemic provided the most concrete example of vulnerability of states, systems and the rule of law: from the need to reconfigure the state functionality to the non-compliance with national laws (found both in simple individuals and, worse, to certain policy makers), to undoubted speculations and the misinterpretation of law and the presence of abuse in the individual-state legal relationships. The suggestive title of this conference is meant to highlight both the social, ethical and legal controversies, internally, and those characteristic to the foreign policy. After the Second World War, the current pandemic and the reality in the public space generated the most complex legal controversies and debates in all areas of socio-political life, including doubts about the ability of states to ensure the rule of law. Along with the undoubted emergence of a new perspective on the evolution of the law system, we are not mistaken if we join the WHO President who said that the pandemic has created more problems than the damage caused by the Second World War, in some of the documents issued by various entities within the European Union, revealing a worrying reality. For this reason, and in this specific context, the state solidity will be directly proportional to the degree of appropriation and awareness that the rule of law emerges from the constitutional order, meaning that the rule of law is established by all legal rules issued on the basis and in accordance with the fundamental law, the Constitution
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Humanists seek to use science creatively, not destructively. Humanists believe that the solutions to mankind's problems lie in human thought and action, not in divine intervention. Humanism supports the application of scientific methods and free thinking on human welfare issues. But at the same time, humanists believe that the application of science and technology must be tempered by human values. Science does not provide the means, but human values must propose the ultimate goal. It affirms the value, dignity and autonomy of the individual and the right of every human being to the highest possible level of freedom, compatible at the same time with the rights of others. Humanists have a duty to care for all of humanity, including future generations. Humanists believe that morality is an intrinsic part of human nature, based on understanding and care for others, which does not need external confirmation. Many people blame globalization when it comes to the epidemic caused by Coronavirus and argue that the only way to prevent other similar epidemics is to deglobalize the world. Building walls, restricting travel, reducing trade. However, although short-term quarantine is essential to stop epidemics, long-term isolation will lead to economic collapse without providing real protection against infectious diseases. The exact opposite will be created. The real antidote to an epidemic is not segregation, but cooperation.
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Principles represent general rules, basic ideas, having the role to ground and prepare the legal framework for the development of a complex process or the synthesis of a social and juridical experience, assuring a balance and a relation between the rights and obligations of a person, of a society in its entirety. The principles of canon law represent statements applicable to all the canon systems or canon prescriptions. These are applicable to all the autocephalous Orthodox churches, so have a universal character, according to the canon tradition and conscience. The basis of canon law and implicitly of its principles is theology but also the juridical sciences. The fundamental canon principles are principles of organization and administration of the Church, being ordained from the beginning in the light of the Savior Christ, as ontological basis and ground, along with the moral dogmas and values. The fundamental canon principles of the Church are found especially in her universal Constitution, consisting in the collection of the Holy Canons, in the long-lived and constant practice of the church life, become custom of canon law.
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The public administration through coercion and through the administrative police intervenes to avoid disturbances to public order, to maintain social discipline. But it is not simply a matter of the order necessary for the functioning of any community, whatever it may be. It is a finalized, bound order, as shown in French doctrine1 of the construction of the liberal state. Not of a totalitarian order, of an order for order, but of an indispensable order to guarantee the rights, to defend the freedoms proclaimed in the Declaration of Human Rights and especially in the constitutions of the democratic states. Therefore, public order is a valuable constitutional objective. Public order can be general or special. The general public order corresponds to a minimum of conditions that appear as indispensable to guarantee the exercise of fundamental freedoms and rights. Therefore, related to the primary function of the public authority, the general public order can and must be ensured by it, even outside any express authorization. But its content retains a contingent and relative character, which varies according to social situations and conceptions; released, in the absence of texts that are never necessary in this field, of jurisprudence. Currently, in positive law, four purposes of public order can be identified: security, sanitation, peace and a certain form of public morality. The first three, which deal with good material order, are moreover expressly enshrined in the legislation on the activities of public administration authorities.
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The exceptional state declared on the territory of a country can be a possible restriction of democratic values, including for the requirements of the rule of law. In this study we analyze the legitimacy and especially the constitutionality of such a situation. In this study we analyze the most important elements and features of the rule of law with reference to contemporary realities in Romania in the context of the requirements expressed in the political and legal instruments of the European Union An important aspect of the analysis refers to the observance and guarantee of the rule of law. The state of emergency and the state of alert declared on the Romanian territory. Excessive power of public authorities, excessive politics and disrespect for the independence of the judiciary are aspects of contemporary social and state reality that contradict the requirements of the rule of law. The most significant aspects of the jurisprudence of the Constitutional Court regarding the guarantee of the attribute of rule of law are analyzed, including during the state of emergency and the state of alert.
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The state of emergency and the state of alert determine fundamental changes of the constitutional rule of law, on the persons and institution of the rule of law.
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The premise of this study is given by the pandemic of COVID-19, which determined the adopting of measures, at state level, which restricted fundamental rights and freedoms in order to protect public order and health. This article will show that the state has a constitutional nature duty to intervene actively through legal means commensurate with the existing danger in order to remove the imminent threats. Practically, it will be underlined that any restriction must pursue the protection of the general interest or the rights of other persons and must be necessary and proportionate to the need to do so. In this regard, references will be made to the exceptional situations, which are limitingly provided in the Romanian Constitution. One of these situations is the state of emergency, which was declared in our country in March 2020. A constitutionality issue proposed for approach concerns the competent institutions in this matter, in accordance with the principle of state powers separation and balance. It will also be shown that the idea of constitutionality is not limited to the regulation in the Fundamental Law of exceptional situations and measures intended to return to normality, but it also involves verifying the compatibility with the Constitution of normative acts enacted in specific circumstances. In this respect, will be highlighted the control exercised by the Constitutional Court over the laws and ordinances of the Government during the health crisis, which either confirms constitutional validity or reveals defects of unconstitutionality and provides the guidelines for remedy
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The pandemic generated by the new Coronavirus caused a rapid change in the way of approaching the legal issues and the adaptation to a legislative framework that tried to regulate the new factual situation. A number of notions and legal institutions have acquired a special importance, being necessary their reinterpretation in the context of COVID-19, in order to identify solutions that correspond to these situations that humanity has been facing and, at the same time, have brought to the light systemic deficiencies which until then had not been considered sufficiently relevant or which had been amplified to an incredible extent. Force majeure, state of emergency, military commands, public interest, public health are just some of the notions that got a major role overnight. Emergency medical assistance and dental care, the rights of patients with chronic diseases, the fair balance between restricting the exercise of individual rights and public safety have led to a relaunch of medical law - a branch of law which, until recently, has been in a shadow cone, poorly represented from a doctrinaire point of view. Also, the sudden emergence of an unprecedented new global situation has been a challenge for public administration authorities, both at central and local level, and, in the same time, a necessity to manage it effectively and make appropriate decisions. The objective of this study is to present a retrospective analysis of the most important situations of this kind, from a juridical perspective and the underlining of the found deficiencies.
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Reflections on the Legality of Some Normative Administrative Acts Issued by the Minister of Health During the State of Alert Determined by the COVID-19 Pandemic in the Execution of Law No. 136/2020 on the Establishment of Measures in the Field of Public Health in Situations of Epidemiological and Biological Risk. In the situations of epidemiological and biological risk provided in Law no. 136/2020, if there is an imminent risk, the Minister of Health establishes by order - administrative act of a normative nature - the manner of application of the measures provided in the mentioned law. Thus, the measure of isolation in a health unit established by decision of the public health directorate will be based on the order of the Minister of Health issued for the concrete execution of the law. However, the judicial control of the normative administrative acts is exercised by the administrative contentious court only within the action for annulment, under the conditions provided by Law no. 554/2004, so that ministerial orders cannot be the subject of the objection of illegality. Therefore, persons in respect of whom the measure of isolation in a health facility has been instituted, although they can ask the court to annul the decision issued by the public health directorate, they will not be able to invoke a possible illegality of the order issued by the minister of health, the latter not being able to be the object of the exception of illegality. This is why it is essential that ministerial orders be issued in the letter and spirit of the laws adopted by Parliament. In order to illustrate the (un)lawfulness of normative administrative acts issued by the Minister of Health during the alert period, in this short study we will analyse the orders that imposed the social medical detention of persons infected with the SARS-CoV-2 virus after the entry into force of the Law on the establishment of measures in the field of public health in situations of epidemiological and biological risk.
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The study presents the legislation on requisitioning of goods in Romania, the way it passed the pandemic test and the different case-law solutions that were generated by the application of this law as well as de lege ferenda proposals as a result of the COVID 19 pandemic.
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Compliance with the law is mandatory, but a subject of law cannot be required to comply with a law that is not clear (regarding the unequivocal nature of the object of regulation), accurate (with reference to the accuracy of the chosen legislative solution and the language used) and predictable (on the purpose and consequences it entails), as he cannot adapt his conduct to the normative hypothesis of the law. One of the requirements of the principle of compliance with the laws concerns the quality of normative acts, therefore, any normative act must meet certain qualitative conditions, respectively to be clear, precise and predictable
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The study examines, briefly, the issue of the procedure applicable in resolving appeals declared against disciplinary sanctions against civil servants, after the entry into force of the Administrative Code in 2019. Because the acts regarding the birth, modification, suspension and termination of service relations, as well as the acts regarding the disciplinary sanctioning of civil servants, have the legal nature of administrative acts, the legislation specific to the civil service is completed, first of all, with the Law on administrative litigation no. 554/2004, so that, in the absence of derogating provisions, the action by which the civil servant invests the administrative contentious court is subject to the terms and conditions provided by this normative act, including the preliminary procedure. In turn, the provisions of this law are supplemented by the provisions of the Code of Civil Procedure, insofar as they are not incompatible with the specifics of service relations between public authorities, on the one hand, and civil servants harmed in their legitimate rights or interests, on the other hand. The establishment of the state of emergency and, subsequently, of the state of alert had implications on the trial procedure in the litigations of administrative contentious, but also on the legal regime of the forfeiture and prescription terms. In all cases, the courts have the obligation to ensure compliance with the fundamental principles of civil proceedings, but also the principles governing administrative liability, particularly the principle of legality of liability, the principle of justice or proportionality of liability and the principle of celerity.
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The legal protection of cultural heritage is a topical issue for the Romanian political and legal world. The importance of the cultural heritage in the individual’s and nation’s life, on the one hand, the risks and threats addressed to it, on the other hand, have brought to the fore the need to strengthen and modernize the legal framework for its protection. A solution in this direction, within the framework of European developments, is the implementation of the Cultural Heritage Code. The idea has been objectified so far in the Preliminary Theses of the Cultural Heritage Code (2016). Codification of cultural heritage legislation is a necessary measure, which ensures the integration of the existing legislation in a unitary vision and in a modern, flexible and efficient legal framework. Such a legal instrument contributes to eliminating regulatory dysfunctions, overcoming the legislative vacuum or over-regulation, to conceptual unification, coherence of approach and harmonization of rules. At social level, it creates a favourable framework for raising awareness about the importance of protecting, preserving and developing cultural heritage, for increasing responsibility and involving citizens in the process of protection and conservation, for the implementation of programmes and projects in the field. Synergistically, a necessary and priority measure is the development of education for heritage, with an emphasis on the importance of cultural heritage, its protection, conservation and transmission to future generations.
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The Covid - 19 pandemic has generated a global health crisis, with profound implications for all areas of life, and the measures taken against it have been unprecedented challenges for all state authorities and the population. Justice has not been spared by the effects of the pandemic, restrictive measures taken all over the world, including at European Union level, have in many cases disrupted activity in this area, they infringed fundamental rights, caused procedural delays, affected procedural deadlines and led to the suspension or reduction of legal aid and public and community services. The measures have significantly affected international cooperation and also reconfigured the use of digital tools in the judiciary system. In this context, this article aims to provide an overview of the consequences of the Covid-19 pandemic on the judiciary system in the European Union in the light of the measures taken to combat its effects, using official information on the portals of national and European institutions.
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This study aims to present the changes to the rights and obligations of employees as a result of the spread of SARS-CoV-2 coronavirus. The study follows the new regulations and legislative changes brought to the employees' rights at national level, such as: work from the employee's home, or from any other location agreed with the employer; telework, granting days off for parents to supervise their children, reducing working time, extending the validity of documents including collective labor agreements and related data processing. Since the state of emergency, economic operators have had to provide employees with an adequate level of protection through measures such as: providing logistical means for working from home or teleworking, where possible, measuring body temperature with appropriate means to check whether it exceeds or does not exceed a certain predefined level at the entrance to the operator's buildings. In the context of the spread of the SARS-CoV-2 coronavirus and the massive digitalization, new personal data were processed such as: place of work of the employee in the situation of work at home or telework, data on health, electronic signature, image, voice, calendar dates and times for online connection to virtual meetings and events, trainings conducted on various platforms. At the level of the European Union, the European Parliament adopted the Resolution of 21 January 2021 by which it addressed a series of recommendations to the European Commission on the need to regulate at the level of the member states the employee's right to disconnect. The pandemic accelerated the transformations and reconfigured the labor relations that had to be adapted to the new realities, bringing new particularities and associated risks.
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In just a few weeks, the world order has shifted to another logic, that of the threat from an invisible enemy, which is not a state factor. From a geopolitical point of view, states accept the existence of systemic consensus levels, but in the face of this threat the only solution was to declare a state of emergency, followed by a state of alert, bringing increasingly drastic measures in response to the biggest sanitary crisis in the last 100 years. The COVID-19 pandemic is one of the worst challenges the world has ever faced. In addition to the cost of living and the deep health crisis, the world is experiencing an economic downturn that will have a serious impact on the well-being of a large part of the population in the coming years. States had to reform their economic governance in the wake of the pandemic crisis. With regard to the impact on environmental law, we must draw attention to the facts resulting from the government rules imposed. The impact of the coronavirus pandemic on the administration of environmental law can be exemplified by the temporary relaxation of the application of environmental regulations and fines.
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The state of emergency (exceptional condition) and the alert of the rule of law show, through their legal management, repercussions on all areas and, in particular, on the economy. The result is the economic crisis received almost immediately, with an exponential spread over the entire surface of the economic map. What further affects the states in these situations is the amount of financial losses suffered. In the case of international investment law - a sub-branch of public international law, a hasty and visionless management of the effects of the state of emergency and the alert of the rule of law can devastate the state involved in this process by the considerable damages it would suffer if the courts competent international authorities would oblige it as a result of non-compliance with the standards of legal treatment of international investments. International investment is protected by international law by setting standards of legal treatment that the governments of the host states have undertaken to comply with through investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. Nothing can stop an investor from changing the geography of his business, in order to protect the investment made. The issue of violation of one or more standards by states is one of the most debated at the moment, because the international arbitration practice has decisions to oblige states to significant damages. In the present study, analysis and synthesis were used as the research method interdependent analysis and synthesis through analogies developed in a comparative method.
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The views expressed below are intended to contribute to the clarification of theoretical and practical issues that give rise to conceptual difficulties, such as: principles of defence concerning social order, legal order, public order , in the well-known context, at present (pademia - COVID 19). In this respect, our criminal law doctrine shows that any branch of law, including criminal law, must have its own system of fundamental principles, distinct from those common to the whole system of law for the defence of public order.
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World Health Organization (WHO) has declared the COVID-19 infection pandemic, classifying it an international emergency in the public health sector. The pandemic is a crisis of the health and socio-economic systems, its effects being lasting, demanding attention on several levels in all sectors of our society. The measures taken in order to stop and limit the spread of the virus and the repercussions on the economy and society have hampered the legislation and its initiators. Thus, a new regime was established known as the state of emergency followed by successive periods of sanitary alert with significant aspects of constitutional opposition. Additionally, the disciplines of the legal system such as labor law, social law, criminal law, competition law and contract law and sometimes even the civil law also had notable instigations. Thereby, the Government has decided to amend the Criminal Code giving criminal purpose to acts previously classified as misdemeanor offenses by the Emergency Ordinance no. 28 from 18 March 2020 for the amendment and completion of Law 286/2009 on the Criminal Code published on 20.03.2020 in the Official Gazette no. 228/2020.
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In principle, in exceptional circumstances, social or natural, which threaten the normal existence of society, the state may resort to derogatory measures concerning most of human rights, that is their exceptional limitations, much more severe than those acceptable in a period of normalcy. However, the derogating measures must have a single purpose, namely to resolve the crisis situation and return to normalcy, so they must respond to an overriding social need, must be strictly proportionate, the limitation must be duly substantiated and the application must be non-discriminatory.
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The outbreak and spread of the COVID-19 virus confronted prison services daily with new challenges especially because these services are dealing with closed environments and this makes it especially difficult to provide for the right care for both prisoners and staff working in prisons. In this context it was highly important to tackle the newly arisen issues in the best possible way, choose the optimum approach and measures to keep the situation as much as possible under control and adjust to the changes in a fast, decisive and balanced rhythm.
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