O perspectivă juridică asupra homarului (şi a animalului, în general)

Author(s): Flaminia Stârc-Meclejan / Language(s): Romanian Issue: 1/2020

Few of us could deny law’s centredness as an instrument of progress and improvement of social life or morality in our culture. Let us refer only to its evolutions in the field of animal welfare, which have lately proliferated. But, the world is variously constituted, by different cultures and civilizations, and we cannot know who, what or why will be privileged at some point in time. And the lobster is no exception to the rule what is prohibited by one society is black letter law in another and, in general, regulations on this species of res nullius are rare. Is it all right to boil a sentient creature alive just for our gustatory pleasure? Is this thing just a matter of personal choice? What role should law play in the protection and welfare of the lobster? is the short list of questions that this paper will attempt to answer. In one way or another, its arguments are, however, valid for all the animals, and ultimately tend to support that small part of literature that advocates the development of the critical dimension of law, in the face of the complex disruptions of our contemporary world.

Câteva considerente despre Legea nr. 19/2020 privind acordarea unor zile libere părinților pentru supravegherea copiilor, în situația închiderii temporare a unităților de învățământ

Author(s): Mirela Păunescu,Adriana Florina Popa / Language(s): Romanian Issue: 3/2020

Even if not very appealing during the emergency period and until the end of May, the Law no. 19/2020 on granting free paid days to parents for the purpose of childcare in the case of temporary closure of educational establishments started to gain the interest of the employers in the month of June. This is when most of the employers who suspended individual employment agreements of their employees and placed them in technical unemployment reimbursed by the Government realized that the market demand was close to zero. Basically, the employers had to face the cruel reality: either to fire their employees or to continue to suspend individual employment agreements of their employees but, in this case, to also incur the cost of technical unemployment as the Government stopped starting with June, for the majority of businesses, to reimburse the indemnity for the technical unemployment. In the following article, we intend to present some of the difficulties faced by those required to apply the law with the hope that our endeavor is not useless especially when considering that in the future parents will be required to make use still of Law no. 19/2020 when schools will be suspended and they will wish stay home.

Dreptul de proprietate: între individualism și colectivism

Author(s): Iulian Dobrinescu / Language(s): Romanian Issue: 08/2020

According to the relevant legal literature, public property and private property are the two typical – indeed, the only – manifestations of the same subjective right. For this reason, public property rights are stereotypically defined, in a manner analogous to how we define the right to private property, as the interfusion of the three classical elements (powers) of property – usus, fructus, and abusus – which are understood to be exclusive, absolute and perpetual. Moreover, it is claimed that the private appropriation of goods does not boil down to individual property, and that the collective appropriation of goods is mediated by the State, which is the legal expression of the community’s collective will. These ideas are not free from criticism. The three powers of property coalesce to define an act of exclusion, and one which necessarily presupposes an individualistic slant to the legal construction of property. By giving account of itself in such a way, this species of subjective right cannot, while also remaining true to itself, be private in certain cases, and public in others. The exclusive right to property, precisely because it is conceived to be exclusive, presupposes and individual owner. In doing so, it precludes any form of collective ownership. Therefore the legal framework within which public property is currently defined reveals a powerful internal contradiction, which is not without practical consequence. For these reasons, the right of public ownership, being what it now is, cannot truly be a means to the collective appropriation of goods by the community. And this is because any form of collective ownership cannot be compatible with „all” the exclusionary and discretionary powers afforded to the individual proprietor by the private right of ownership.

Rolul și importanța opiniilor separate în dreptul intern și internațional

Author(s): Radu Ciobanu / Language(s): Romanian Issue: 08/2020

Are separate opinions necessary? Writing them involves both time and resources, and the result does not influence the causes in which they were formulated. In this context, the logical question is why some national and international judges choose to formulate such opinions. We appreciate that the main reason is the potential of these opinions to contribute to the development of the future judicial practice. The aim of this study is to emphasize the importance and benefits of regulating the separate opinions in national legislation and to encourage their use. In this study we aim to analyze the purpose of the separate opinions along with the arguments for and against their regulation in national legislations. We will also analyze the difference between separate and concurring opinions, but also the different result that these opinions may have. We will also address the issue of the style in which these opinions are written and the impact it may have on future case law. A distinct part of this paper will be devoted to the analysis of separate opinions in national courts. At the same time, we will follow if there are differences between the constitutional court and the common law courts, regarding the use of these opinions. At the end of the study, we will make some proposals de lege ferenda on the need for legislative development of the field of separate and concurring opinions, development which would encourage their use and, at the same time, would limit the purpose of using these opinions to the development of the case law.

ZASIEDZENIE FIZYCZNEJ CZĘŚCI NIERUCHOMOŚCI ODDANEJ W UŻYTKOWANIE WIECZYSTE

Author(s): Adrian Malicki / Language(s): Polish Issue: 2/2018

Perpetual usufruct is an ius in re aliena of a complex legal nature. Its subject may only be a property owned by the State Treasury or a local government unit. Under Article 177 of the Polish Civil Code, prescription by occupation of property classified as public was excluded. When this Article was repealed, the normative barriers to acquisitive prescription of the ownership of real estate given in perpetual usufruct disappeared. This paper is a discussion concerning the possibility of acquiring ownership of a part of such property. First, the capability of a given part of real estate for prescription by occupation is established and next differing opinions and arguments against the possibility of acquiring ownership, or prescription by occupation of certain parts of real estate are presented. The arguments raised by the opponents of prescription by occupation have been critically assessed. Further, the consequences of such acquisitive prescription have been identified. The consequences of perpetual usufruct on the property in question have been examined and the fate of the part of the property acquired by the owner as well as that of the remaining part, analysed and compared. The civil liability of the perpetual usufruct holder has also been addressed.

Câteva reflecții asupra reformelor judiciare din Franța, Italia și Spania

Author(s): Ioan Leş / Language(s): Romanian Issue: 09/2020

European democratic societies have shown, in recent years, an increased interest in reforming justice, the aim being to make more efficient the process of administration thereof. Likewise the efficiency of justice is a complex and continuous process which involves, among other things, guaranteeing the quality of the judicial decision and resolving the cases within a reasonable time. Within the present approach the author made a radiography of the most important reforms initiated and partially carried out in France, Italy and Spain. The investigation carried out has led to the conclusion of the existence of some common regulatory trends, but also to the existence of some different solutions. Common trends have been identified in terms of judicial organization, distinguishing itself a process of concentration of jurisdictions and of specialization thereof. The most significant example from this point of view is that of France, a country where a recent reform has led to the merger of the courts with the high courts. The courts resulting from this concentration are called judicial courts. In Spain, the justice reforms were initiated in 2001 following the conclusion of a „State Agreement” between the Government, the People’s Party and the Socialist Party. In Italy in recent years it was undertaken a reform which led to the increase in the competence of justices of the peace. In all the mentioned states there was also a marked tendency towards making more efficient the alternative ways of resolving the conflicts. Different procedural and judicial options were found regarding the composition of the superior councils of the magistracy, the organization of judicial inspections and the organization of the Public Ministry. Such options take into account the particularities of each judicial system, which excludes a total uniformity and are part of the democratic processes aimed at consolidating the state of law.

Aspecte teoretice și practice cu privire la natura juridică și felurile fideiusiunii

Author(s): Nora Andreea Daghie / Language(s): Romanian Issue: 09/2020

By reference to the real guarantees, which, theoretically, ensure a greater security of the execution, the fidejussion prevails by a lower degree of formalism and by a much higher degree of flexibility. Through the fidejussion mechanism, the creditor will have as common guarantee at least two patrimonies: first of all, of course, the patrimony of the main debtor, but in addition to this patrimony it can also be satisfied from the patrimony of the fidejussor or fidejussors. No one can become a fidejussor-guarantor against his will. Regardless of its nature, the fidejussion has a contractual nature, being able to arise only through the agreement between the creditor and the fidejussor. The law or the judgment only requires to bring a personal guarantee. When a person is obliged, by law or by convention, to provide bail, and he does not voluntarily fulfil his obligation, the judgment of conviction does not convert the bail into a judicial one, it still remains legal or conventional, as the case may be. The judge only orders the execution of the legal provision or of the convention. Exceptionally, in certain situations, the law absolutely presumes the quality of a certain person as fidejussor. For example, there is a fidejussion, called an assimilated fidejussion, also in case a party undertakes to another party to grant a loan to a third party, in which case the creditor (the person to whom the commitment has been made) is guarantor (fidejussor) of the obligation to repay the loan received by the third party.

Discuții referitoare la necesitatea unei definiții legale a actelor adiționale la contractele de muncă

Author(s): Dan Țop / Language(s): Romanian Issue: 09/2020

The additional acts do not enjoy a legal definition in the labour legislation, although some legal texts make reference thereto or the necessity of their conclusion results from the interpretation of the legal provisions. At the same time, the conclusion of the additional act to the individual labour contract is frequently used in practice. Among the measures to make the labour relations more flexible is the temporary change of the workplace at the domicile of the employee, in which situation there must be concluded an additional act to the individual labour contract. It is necessary de lege ferenda to enshrine a legal definition of the additional act in the Labour Code.

Căsătoria în dreptul internațional privat argentinian

Author(s): Anca Iacob,Cosmin Dariescu / Language(s): Romanian Issue: 09/2020

Since the beginning of the 19th century, the phenomenon of immigration has increased in Argentine. In the 20th century, the majority of immigrants came from the European continent. Despite some tempering measures, the immigration to Argentina continues to manifest itself, producing legal consequences. The family relations of foreigners are ruled, like other types of social relations with a foreign element, by private international law. This paper aims to analyse the current state of marriage regulations in Argentine private international law (with brief historical forays to understand the evolution). The scientific impact of this paper is increased by the novelty of the studied legislation and by the low interest that the Romanian doctrine has shown for the legal realities in Latin America. Its conclusions are relevant both to researchers and legal practitioners and to the general public, interested in resolving the many legal issues involved in a marriage with an Argentine citizen or immigration to Argentina.

Generațiile viitoare ca subiect de drept

Author(s): Anca Ileana Dușcă / Language(s): Romanian Issue: 09/2020

Intimately linked to the concept of sustainable development, the theory that future generations are the subject of law has aroused lively discussions at doctrinal level, at home and abroad. There are also international conferences: e.g. the Stockholm Conference of 1972, which for the first time warned of the future of humanity itself, as a result of environmental deterioration, following human activities; The Brundtland report of the World Commission for Environment and Development appeared in 1987, entitled „our common future”. The EU’s interest, in which Romania is a member state, in sustainable development has grown in parallel with the United Nations initiative for this concept and has resulted in a number of environmental action programs and strategies that have led to the development of numerous acts to translate them into practice, because everything has become or must became „sustainable” – economy, transport, industry, energy, consumption, agriculture.

Despre utilitatea reglementării unei proceduri simplificate de judecată în dreptul procesual civil

Author(s): Ștefan-Alexandru Toma,Răzvan-Ionuț Pricop / Language(s): Romanian Issue: 09/2020

7 years after the entry into force of the new Civil Procedure Code, without claiming to make an exhaustive inventory of what could partially be called a failure of regulation and/or of application, the legal institutions and the judicial procedure with a new face, perhaps even revolutionary, or those only reformed and/or refurbished regulated by the new Civil Procedure Code have demonstrated successively or simultaneously their insufficiency or inefficiency, some being dysfunctional due to their own internal causes, others due to external causes referring, as a rule, to the absence of the adequate human, material and financial resources or simply as a result of the deformation by acclimatization by the courts, parties and participants in the civil trial, the examples being numerous. Under these circumstances, the necessity to regulate within the new Civil Procedure Code of a simplified court procedure results from the very materiality of the facts. The specificity of this simplified court procedure would be that it would imply to exclusively go through the written stage of the civil trial, possibly of a written stage more extensive than the current one regulated by Article 201 of the Civil Procedure Code, at the end of which the date of pronouncing the judgment will be established by administrative resolution. In this way, the duration for solving some cases with a medium or low complexity would be significantly shortened, by eliminating the time period between the date of completion of the written stage and the first trial term.

Subrogace v oblasti pojišťovnictví se zaměřením na mezinárodní prvek

Author(s): Milan Bakeš,Roman Vybíral / Language(s): Czech Issue: 3/2020

The issue of subrogation is to a large extent specific, especially in the field of insurance. The article looks at this institute from a theoretical and practical point of view. The authors try to introduce a theoretical classification of subrogation, to analyze national legislation in the field of insurance and to describe selected problematic issues of national legislation. At the same time the authors focus on the practical consequences of the presence of an international element in the subrogation relationship.

Kompenzační bonus – příjem, nebo výdaj veřejných rozpočtů?

Author(s): Radim Boháč / Language(s): Czech Issue: 3/2020

The aim of this article is to answer the question whether the compensatory bonus is revenue or expenditure of public budgets. To answer this question, the article analyzes the legal regulation of the compensation bonus and assesses whether this bonus is a tax in a broader sense. In this context, legislative proposals concerning the budgetary determination of the compensatory bonus are evaluated as rapid and unsystematic proposals. The article concludes that the compensatory bonus is not a tax in a broader sense and neither revenue nor expenditure of public budgets, but a reduction of public budget revenue.

Cauzele Tokes (nr. 1 și nr. 2) c. României. Răspuns la Întâmpinare

Author(s): Előd Kincses / Language(s): Romanian Issue: 2/2020

DOWODY Z DOKUMENTÓW W POSTĘPOWANIU NAKAZOWYM W KONTEKŚCIE FORMY DOKUMENTOWEJ CZYNNOŚCI PRAWNYCH

Author(s): Marcin Kostwiński / Language(s): Polish Issue: 24/2019

The article concerns the issue of the impact of introducing a legal definition of a document in the art. 773 of the Civil Code and amendments in the form of legal actions on the evidentiary situation in the order for payment proceedings. The author analysing the amendments in the Civil Code and the Code of Civil Procedure, which entered into force on 8 September 2016, examines whether the procedural situation of plaintiffs requesting for hearing their cases in order for payment proceedings and the possibility to obtain an order for payment in this special proceedings have changed.

VKLAD DO KATASTRA NEHNUTEĽNOSTÍ SLOVENSKEJ REPUBLIKY (ROZHODOVANIE O NÁVRHU NA VKLAD)

Author(s): Milan Sudzina / Language(s): Slovak Issue: 25/2019

Author in the article entitled “Insert to the Cadastre of real estates of the Slovak republic (decision on proposal for insert)” analyses the issue of entering the rights to the Cadastre of real estates through the institution of insert if rights to real estates originated, changed or expired on the bases of a contract. The article pays attention to the desion in insert proceedings. The aim of this paper is through the analytical method to deal with the registration of the real estate relationship by insert, analysis of the legislation in the field of cadastre of real estates and decision-making activities of general courts and cadastral authorities.

VKLAD DO KATASTRA NEHNUTEĽNOSTÍ SLOVENSKEJ REPUBLIKY (ZAČATIE VKLADOVÉHO KONANIA)

Author(s): Milan Sudzina / Language(s): Slovak Issue: 23/2018

Author in the article entitled Insert to the Cadastre of real estates of the Slovak republic (beginning of insert proceedings) analyses the issue of entering the rights to the Cadastre of real estates through the institution of insert if rights to real estates originated, changed or expired on the bases of a contract. The article pays attention to the beginning of the insert proceedings and related questions. The aim of this paper is through the analytical method to deal with the registration of the real estate relationship by insert, analysis of the legislation in the field of cadastre of real estates and decision-making activities of general courts and cadastral authorities. The article also includes related proposals de lege ferenda.

VKLAD DO KATASTRA NEHNUTEĽNOSTÍ SLOVENSKEJ REPUBLIKY (NÁVRH NA VKLAD)

Author(s): Milan Sudzina / Language(s): Slovak Issue: 23/2018

Author in the article entitled Insert to the Cadastre of real estates of the Slovak republic (proposal for insert) analyses the issue of entering the rights to the Cadastre of real estates through the institution of insert if rights to real estates originated, changed or expired on the bases of a contract. The article pays attention to the substantive and procedural data and annexes of the proposal for insert. The aim of this paper is through the analytical method to deal with the registration of the real estate relationship by insert, analysis of the legislation in the field of cadastre of real estates and decision-making activities of general courts and cadastral authorities. The article also includes related proposals de lege ferenda.

Cum aplicarea mecanică a normei juridice aprinde rugul pe care este sacrificat dreptul. Comentariu al Deciziei Curții Constituționale nr. 702/2019

Author(s): Alexandru Athanasiu / Language(s): Romanian Issue: 10/2020

This study aimed to develop a theoretical analysis configured in the matrix of a critical examination on the rulings of the Constitutional Court of Romania contained in the Decision No 702/2019. To this end, there were examined the conclusions promoted by the constitutional contentious court, which applied, in support of its point of view, the principle of equal treatment, constitutional rule, as well as of proportionality, praetorian construction, promoted by the case law, from which it resulted that, from a legal perspective, the disabled pensioners who acquired this legal condition based on the Law No 19/2000 will benefit from the application of the correction index regulated by the Law No 263/2010, if at the time of the ex officio transformation of the invalidity pension into an old-age pension the latter law was in force. In order to reach this solution, the Constitutional Court of Romania invoked the circumstance that for these pensioners it is finally established the pension according to Law No 263/2010, that the old-age pension is the only „stable” legal formula of the right to a pension and that excluding these persons from the benefit of increasing the amount of the pension, by capitalizing the correction index, represents an unacceptable discrimination in constitutional order, illustrating an unreasonable excess not based on an objective and rational purpose.Similarly, the Constitutional Court of Romania supported its solution promoted by the Decision No 702/2019 resorting to an interpretation, close to the legal „heresy”, of the legal phrase „initial registration for pension” and decided, bluntly, that the legislator wanted us to understand by this expression, exclusively, the concept of old-age pension, as a normative reference in connection with the capitalization of the correction index. Vis à vis to this solution, we have emphasized in detail, concretely and argued, the reasons why we consider that the solutions proposed by the Decision No 702/2019 are completely erroneous both from the perspective of the constitutional principles concerning the matter, and in relation to the legal rules, which fix the functional competence of the Constitutional Court of Romania. Thus, we have emphasized the fact that Law No 19/2000 did not regulate the correction index and that, regardless of the type of pension granted to a person during the period of application of this law, the beneficiary of the pension could, neither illo tempore, nor after the entry into force of the Law No 263/2010, access this legal benefit (correction index), considering the application of the rule tempus regit actum. We also pointed out that the Decision of the Constitutional Court No 207/2019 illustrates the forbidden interference of the constitutional contentious court in the functional competence of the courts in that it interprets the law, in its application, passing „nonchalantly” the limits of its own competence, circumscribed only to verifying the compliance of the law with the constitutional provisions. In conclusion, we have pointed out, moreover, in accordance with some preliminary rulings of the High Court of Cassation and Justice, which we have developed in their argumentative substance, that the rule of non-retroactivity of the law always has priority in application, so that the „addition” with legal bonuses of some rights, including the right to pension, pursuant to some laws subsequent to the acquisition of rights is, as a rule, contrary to the letter and spirit of the Constitution.

Consecințe ale forței majore asupra raporturilor de muncă

Author(s): Alexandru Țiclea / Language(s): Romanian Issue: 10/2020

The following study has as research and reflection theme the influence of force majeure on labour relations, determined, in particular, by the legal norms specially adopted in the context of the existence of the pandemic caused by the spread of the SARS-COV-2 coronavirus. There are defined the force majeure, and its specificity is presented, taking into account the regulation of the Civil Code [Article 1351 (2)], as well as relevant doctrinal theories. Next, what is the essence of this stage, there are presented and analyzed the consequences of force majeure, especially consisting of the afore-mentioned pandemic, namely with regard to: forced labour, employment in public institutions and authorities, duration of labour relation, individualized work schedules and overtime work, change of place and type of work, suspension of labour relations, notice periods, patrimonial liability, collective labour agreements and labour disputes. The study ends with the conclusions on the analyzed problems.