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Răspunderea disciplinară a notarilor publici

Author(s): Andra Puran / Language(s): Romanian Issue: IV/2016

The specific of disciplinary liability of notaries public compared to common law is given by specific sanctions, by the competent authorities to carry out disciplinary research of facts that constitute disciplinary misconducts, but also by the specific procedural rules. This study aims to provide a succinct analysis of the issues that differentiate disciplinary liability of public notaries from that of employees performing work under an individual labour contract.

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Câteva aspecte privitoare la nedemnitatea succesorală

Author(s): Diana-Geanina Ionaş / Language(s): Romanian Issue: IV/2016

In order to be able to inherit, a person must meet two positive conditions, respectively having inheritance capacity and succession vocation, but also a negative condition, respectively, not being unworthy.Indignity is a civil law sanction whereby the successor is removed from the inheritance of its author as a result of committing one of the guilty acts provided for in the Civil Code.Therefore, this represents both the general negative condition provided by law for inheritance and a sanction that affects both the status of legal heir and the heir.The new Civil Code groups the cases of indignity into two categories: non-legal and legal non-indignity, each following a different legal regime.

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Unele consideraţii cu privire la înscrisuri şi verificarea lor prin intermediul expertizei

Author(s): Cristian Dumitrescu / Language(s): Romanian Issue: IV/2016

The documents play an important role for human society and their mission in finding justice is very important . Firstly through the rules of coexistence that they cover and which are enforceable against citizens , then their function of finding the truths . The need to verify the authenticity of documents used in court is dictated by the role they fullfil when taken as evidence. To meet this need judicial bodies frequently resorts to various evidences , including forensic expertise .

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Dreptul de preempţiune în materia terenurilor agricole situate în extravilan

Author(s): Ioan Morariu / Language(s): Romanian Issue: IV/2016

The matter of the preemption right related to the farm lands situated outside the built-up area has been and still is an element of permanent actuality, although its situation, in terms of the legal regulation, is characterized by a sinuous trajectory, marked by regulations and deregulations. The importance of farm lands situated outside the built-up area and the need to avoid their excessive fragmentation have eventually determined the reinsertion of this form of preemption right in the internal legal order and the creation of a suitable legal frame.

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De la contractul originar de muncă la contractul de telemuncă în contextul Acordului-cadru European privind Telemunca de la Bruxelles

Author(s): Emin Melis / Language(s): Romanian Issue: IV/2016

The telework, teleworking, e-work, telecommuting became terms used both in Europe and in the United States, terms with identical meanings, which try to define the activity by means of which information technology is able to substitute the physical movement of workers, so that work can be carried out remotely [11].The flexible forms of work began to acquire a unique shape and enjoy a greater attention. It is the case of the so-called teleworking by means of which we understand the regular work outside the office, performed on a shorter or longer period of time, in different environments: at home, at customer’s premises or in buildings equipped with specific information equipment, that allow the physical movement of the employer from the workplace through information technology.This form of substitution of transportation to the workplace through technology involves a “de-localization” of work, achieving a remote work using telecommunications.In other words, the teleworking, to which we refer to as follows will be analyzed in terms of the way in which the labour transfer to worker / employee takes place by the, and in the context of its assessment as being or not being a specific form of work organization.

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Consideraţii privind posibilitatea revocării de către angajator a deciziei de concediere

Author(s): Dan IORDACHE / Language(s): Romanian Issue: IV/2016

The employer`s measure, by which it revokes the dismissal decision, represents an unilateral act. In accordance with the provisions of art. 1270 align. (1) corroborated with art. 1325 of the new Civil Code, the unilateral act is irrevocable. Among the exceptions to the principle of irrevocability of unilateral acts, the legislature has not regulated the situation of the dismissal decision, so that the majority jurisprudence appreciated that exceptions cannot be presumed or inferred by way of interpretation, meaning that the employer would be able to revoke the dismissal decision in the absence of a legal text that would expressly allow this. In a contrary opinion, the doctrine sustained that in such situation could be applicable the principle of law according to which what is not prohibited is allowed (Id omne licitum est, quod non est legibus prohibitum, quamobrem, quod, lege, permittente, fit poenam non meretur), and considering that the provisions of the labour law do not prohibit to the employer to revoke the dismissal decision, results that the employer would have this possibility. A dismissal decision which is null and void cannot be covered or remedied either by issuing an subsequently act, reported to the fact that according to the same principles, the consequences of nullity are retroactive, fact which is equivalent to the extent that the act would not have been concluded ever. According to art. 78 align. (1) of Law no. 53/2003 – Labour Code, solely the court is entitled to rule on the nullity of a dismissal decision, the nullity of the subject act couldn`t be found or disposed unilaterally by the employer.

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Proiectul de concediere colectivă

Author(s): Laurenţiu-Răzvan Lungu / Language(s): Romanian Issue: IV/2016

The intention of the employer to make redundancies is firstly discussed with the union or the employees’ representatives and then communicated to the territorial labour inspectorate and the territorial employment agency. The employer tries at first to achieve a consensus by informing and consulting with the employees, but if this fails, he is free to effect collective redundancy, according to his interests.Information, data provision, consultations and negotiations are carried out in order to find solutions to avoid collective redundancies or to reduce the number of employees made redundant, and represent legal guarantees of the right to work, a right which, under the article 38 (1) of the Romanian Constitution, cannot be restricted.

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Concedierea colectivă: prerogativă exclusivă a angajatorului sau demers negociat cu reprezentanţii salariaţilor?

Author(s): Luiza Mihai (Lungu) / Language(s): Romanian Issue: IV/2016

Given that the information and consultation is an application of social dialogue in matters of collective dismissal, it must be examined what it means, how it works and what has been the trend of laws and jurisprudence in this matter, ie social dialogue, in order to see if this application only protects employees, or is simply a deliberate obstacle to a faster approach of an employer’s wish to organize its activity. We will analyze this relationship effect and the role of trade unions or employee representatives in the Member States of the European Union and in non-EU countries, respectively in US- trade unions.This study will reflect the importance of a connection - communication - between social dialogue in one unit for the proper functioning of the company, not only on the business side but also to safeguard the employees' right to work.

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Reprezentarea contractuală în dreptul roman. Evoluţia contractului de mandat

Author(s): Alina-Monica Axente / Language(s): Romanian Issue: IV/2016

The Romanians accepted with great difficulty the idea of representation in the matter of contracts, considering that this would be a violation of the principleres inter alios acta aliis neque nocere neque prodesse potest.If in the very old era it was not necessary, since the legal relations were extremely few, with the development of the exchange economy, the contractual representation becomes a concrete necessity.The acceleration of the commercial relations with the pilgrims has made the principle of non-representation in contracts to be regarded as a hindrance to the economic flowering.However, the process of developing a system of representation has not proved to be an easy one, in the context of a formalist and conservative civil law, both procedural interventions by the claimants and solutions coming from the sphere of jurisprudence being necessary.The road to the institution of representation was opened by the actions of an adjacent character. These arise from the honorary actions of the praetors, who by their creative activity sanctioned new subjective rights on a procedural basis. A first problem they faced was manifested at the level of the effects of the institution of representation, namely the acquisition of the title holder of the rights and obligations arising from the respective contract by the representative, being subsequently required other legal operations to carry out these effects on the person represented. This mechanism was evidently inefficient and inconvenient to the Romanians eager to escape from a rigid and formalistic normative system. For this reason, starting from the difficulties that the imperfect representation supposed, the Romanians create the perfect representation, through which the effects of the obligation directly affect the represented one. Although the Romanians created and adapted a system of representation to the demands imposed by the economic dynamics, in reality it has never become a general rule. In modern law, the system admitted by Romanians only for certain cases has been generalized, so that the agent appears as a representative, and the effects of the acts concluded by him occur directly on the principal, who becomes either debtor or creditor, the person of the agent disappearing.

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Este suficientă o reglementare legală expresă a unei noţiuni pentru ca aceasta să fie funcţională? – studiu comparativ privind concedierea pentru necorespundere profesională în România şi Franţa

Author(s): Ștefania Stanciu / Language(s): Romanian Issue: IV/2016

This paper is a comparative analysis on legal provisions and relevant case law on dismissal for professional unfitness in Romania and France with the objective of establishing if an express legal provision can make for a functional legal concept in absence of a constant jurisprudence, or a constant jurisprudence can make up for the absence of an express legal provision. For this study Romanian and French legislation were chosen because of their different standing on the need for an express regulation for the dismissal on professional unfitness, with Romania having an express provision on the matter since the 1950’s, that is rarely put into practice and with France using a general legal provision that is commonly used.

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Transmisiunea drepturilor în domeniul proprietăţii intelectuale

Author(s): Andreea-Lorena Codreanu / Language(s): Romanian Issue: IV/2016

The author of a work has the exclusive economic right to decide how and when his work will be used, including to consent to its use by others. The right to the patent belongs to the inventor or his successor in title. If the invention has been created jointly by several inventors, each has the status of joint inventor and the rights belong to them jointly. Patent rights, the right to grant patent and the rights deriving from the patent may be transferred in whole or in part. Trademark rights can be transferred by assignment, license, by succession or foreclosure of the debtor, owner of the mark carried out under the law. The right to issue the certificate of registration of the design rights arising from the registration of the design as well as rights deriving from the registration, are transferable in whole or in part.

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Dreptul de proprietate publică – reglementare şi regim juridic în sistemul de drept român şi în sistemul de drept francez

Author(s): Petruţa-Elena Ispas / Language(s): Romanian Issue: IV/2016

The public property right has represented and continues to represent an important issue of discussion for the Romanian Civil Law, but just as much of an issue for the legal systems of other European states. By the agency of this research we shall endeavour to bring into the spotlight the most germane facets in relation to the regulation and the judicial status of the public property right, equally focusing upon relevant aspects present in the French Law. Concurrently, we shall advance a number of test cases pronounced by Romanian Courts, so as to have a complete image upon the regulation of these dispositions as well as a view on how these dispositions are applied. Furthermore, we shall present relevant case-law from French Law, in order achieve a befitted addendum to the legal regulation adopted in the analysed matter.

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Suspendarea executării hotărârii pronunţate în procedura specială a evacuării

Author(s): Mădălina Dinu / Language(s): Romanian Issue: IV/2016

In order to be enforced as a rule, a judgment must be enforceable or final. However, there are situations in which first instance judgments may be enforced before it becomes final. They may be enforced, either because the law allows it (when running provisional law), the judgment enjoys provisional enforcement after they were given at first instance, either because there is a provision of the court in this sense (if provisional execution of court), this finding that, according to the circumstances of the case, it must be provisional execution of the judgment even though it is not final or enforceable.

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Brief Considerations on the Acquirement in Advance by the Minor of the Full Capacity of Exercise

Author(s): Ramona Duminică,Andra Puran / Language(s): English Issue: V/2017

The current paper debates an exception from the principle according to which the full capacity of exercise shall be acquired at the age of 18, namely its acquisition in advance using the legal means by the minor who has turned the age of 16. Because a legal institution can only be completely understood if the starting point are its fundaments, the study initiates an excursion in the history of the private law, showing that the exception regarding the anticipated capacity of exercise of the minor in the current law originates in the Roman law, but also in the Civil Code of 1864 which stated the “emancipation of the minor”. Thus, starting from the historical fundaments of this institution, the study aims to identify and clarify the conditions in which the exception stated by Art. 40 of the current Civil Code operates.

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The Valences on the Notion of “Contractual Risk”

Author(s): Daniel Cătălin Chifor / Language(s): English Issue: V/2017

The New Civil Code imposes a new angle regarding the subject of the contractual risk. The law-maker did not made a legal definition of risk, limiting itself to only indicating its rules of attribution and the effects from bearing a risk in certain situations. The risk represents an occurrence which produces a contractual imbalance, disrupting the initial balance determined by the parties, unanticipated by the parties, originated from an external source, independent from the will of the parties, under an aleatoric effect, predictable but uncertain, situation after which damages are produced.

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The Relation Between the Principle of Binding Force and Imprevision in Terms of the Law No. 77/2016

Author(s): Ioan Morariu / Language(s): English Issue: V/2017

There are situations when the interference between one and another legal institution or their overlapping may create effects with a greater or smaller legal impact, but in any case with some social resonance. One of these cases was created by the Law no. 77/2016 on the give in payment of certain immovable goods in order to extinguish the obligations undertaken by credits, which introduced to the internal legal landscape a new legal institution, particular and derogatory from the common law, a form of give in payment, applicable to situations, categories of beneficiaries and strictly determined objects. Or, the give in payment procedure regulated by the Law no. 77/2016 has as grounds and functional mechanism the institution of imprevision, as particular, derogatory from the common law, and the debtor’s possibility to choose to opt out of the contract relation through the give in payment is generated by this particular form of imprevision.

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About the ascertainment decision of the employer

Author(s): Magda Volonciu / Language(s): English Issue: V/2017

Labour Law offers substance to the legal researcher through the multitude of unilateral acts the employer can take in the exercise of his authority as established by the law. To ensure the employee is protected from abuse, a strict, rigid law intervenes. Most of the times, decisions producing legal effects are analyzed. Labour Law, directly or indirectly, talks about a series of decisions that ascertain the appearance of effects on the working relationships, effects that occur naturally. What is the purpose of such decisions? Are they welcomed? Are they necessary in the realm of labour law, or are they good management tools? This analyses does not propose to answer these questions, but to raise other ones.

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The Taxonomy of Real Estate Acquisitive Prescription and Civil Procedure Matters

Author(s): Petruţa-Elena Ispas / Language(s): English Issue: V/2017

Real estate acquisitive prescription or acquisitive prescription represents one of the primary means of obtaining the right of private property. In our current legislation, the real estate acquisitive prescription knows important modifications by comparing it with the past civil legislation, reason that led us to strive to present it in the current legislation, without lapsing the transient norms of the Law no. 71/2011 and the civil procedure norms that cover this topic.

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The obsolence enforcement

Author(s): Mădălina Dinu / Language(s): English Issue: V/2017

The obsolete, as is defined in the doctrine, is the procedural sanction consisting in the extinction of forced execution at the stage in which it is found due to the long-term lack of diligence of the creditor in attempting to capitalize on the right recognized by a court order or Another entry which, according to the law, is an enforceable title

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Protection of intellectual property in the context of securing the right to information

Author(s): Alina Popescu / Language(s): English Issue: V/2017

The adherence of Romania to the European Union has assumed, among other conditions, the harmonization of the national legislative framework with the European one, which would certify that our country has the ability to be part of the European project and fulfill its obligations as such. The removal of restrictions concerning the free movement of goods and services, paved the way for access to technological development, innovation and the free flow of information in any field. European Union member states are concerned to protect intellectual property while guaranteeing freedom of expression, unfettered circulation of information (in the broad sense of the acceptation, meaning works, ideas, know how, etc.) and protection of personal data. With regards to human rights, it is important that exerting a right does not affect the free exertion of the rights of others. Therefore, I believe that in matters of intellectual property and the right to information, it is important to achieve, both from a legislative and practical point of view, a harmonization of the two rights, with express and exhaustive guarantees and limitations so that the social values sheltered by the protection of the two rights are consistent and interdependent. At international and European level, there are still disparities in terms of the legislative approach of the issue of ensuring the two rights, which leads to difficulties in enforcement of the legislation, to the disparities in the functioning of internal markets, to an impact on real and honest competition as well as to an impossibility of achieving a common goal of sustainable development.

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