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Probleme ale efectivității, eficienței și dezvoltării dreptului mediului în România. Aspecte de drept substanțial și drept procedural

Author(s): Mircea Duțu / Language(s): Romanian Issue: 10/2020

Despite the extraordinary multiplication and pertinent diversification of environmental protection regulations, at national, regional (EU) and international level, the efficiency and effectiveness of environmental law norms still remain a desideratum. Their level of achievement is insufficient and different from one country to another, being particularly low and, consequently, representing a problem that should be a priority in Romania. The causes of the situation are profound and diverse (being related to the non-perception and non-expression of the specifics of the matter at all stages and at all levels of the legal phenomenon), and its solving involves a „true legal revolution and a reconsideration of the new branch of law”. The ways to overcome the impasse include, in addition to adapting the legislation and promoting appropriate legal tools and mechanisms, also the establishment of specialized jurisdictions and the specialization of persons involved in the functioning of the environmental process. The topic approached by the author is of increased interest as long as the first institutional steps in this direction are being taken in Romania as well.

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Umanitatea ca subiect de drept

Author(s): Anca Ileana Dușcă / Language(s): Romanian Issue: 10/2020

Confusing subject of study for a jurist, humanity is an evasive notion because it manifests itself in the individual but is, at the same time, external to it; it claims universality but the way each one looks at is as specific as each one. Myth or legal symbol, „humanity” is a term with variable content, both in the common and the legal language, because, at the same time, it represents the human essence, the goodness but also the race, the human species. The various meanings are indissolubly linked because they are intertwined, so that the „individual” humanity, the one that each individual carries himself, is inseparable from the „collective” humanity, the human community. This together construction results from legal instruments which reflect the ambivalence of the concept, the crime against humanity is, at the same time, a crime against the human essence and a crime against the human race, as its constituent elements demonstrate. Through time, humanity has born and fed contradictory legal discourses, so in international law it is more than a „concept slogan”, because its influence is tangible, but nonetheless, humanity has not simplified the international legal order but has made it even more complex.

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Repararea prejudiciului nepatrimonial cauzat persoanelor juridice

Author(s): Ana-Maria Nicolcescu / Language(s): Romanian Issue: 10/2020

In the context of the express consecration of the protection of non-patrimonial rights also for the legal persons, according to Article 257 of the Civil Code, it becomes useful to analyze the evolution of the practice in the matter of repairing the non-patrimonial damage caused to the legal persons. Also, the historical perspective of the notion of moral damages, the procedural means and the relevant jurisprudence of the ECHR allow us to place this issue today, concluding that the principles of the tort civil liability apply to each case, depending on the proven factual evidence, but also on the diversity of the legal persons, on the variety of their objectives.

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Câteva considerații în legătură cu expertizele tehnice judiciare administrate de instanțele judecătorești în procese civile

Author(s): Delia Narcisa Theohari / Language(s): Romanian Issue: 10/2020

The expertise, object of analysis of the present article, constitutes an evidence whose administration is frequently encountered in the judicial practice in civil matters, being imposed in order to clarify some factual circumstances through the specialized contribution of an expert. Thanks to its high degree of precision in determining the factual circumstances of the litigious situation, the expertise is one of the most edifying evidence administered in a trial, being necessary, as such, a thorough knowledge of its legal regime, but also of the issues that envisage the specialization of the expert appointed to carry out the expertise and set its objectives. The study addresses, both from a theoretical and practical perspective, the issue of proposing, approving and administering evidence with the expertise, which is sometimes subject of doctrinal and jurisprudential controversy. Thus, in the article there are presented the solutions considered legal from the author’s point of view with regard to the hypothesis in which the evidence with the expertise was not requested through the summons or the counterclaim, but verbally at the trial term, to the one regarding the non-compliance of the party when executing the obligation to pay the fee of the expert appointed to perform an expertise whose administration was ordered ex officio, to the possibility of the court to invoke, ex officio, the exception of late proposal of the evidence, to the modality in which the party should indicate the objectives of the expertise, to the obligations of the expert concerning the submission of the expertise report to the file, as well as other such legal matters. At the same time, in the study there are presented proposals related to the type of expertise that would be required to be carried out in order to resolve some civil actions, as well as the objectives that could be established, the latter can, of course, be customized according to the concrete circumstances of the action brought before the court, the enunciated ones constituting only an indicative starting point in the approach of the court.It is necessary for the judge to know the specialization that is necessary for an expert to perform the expertise that would accurately determine the factual circumstances of the case and that could also set clearly and precisely the objectives of the expertise so that the expert can respond correctly and clearly, and, thus, the administered expertise could constitute a conclusive and useful evidence.

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ADVOCATING FOR THE PROTECTION OF RIGHTS OF CHILDREN AND WOMEN IN NIGERIA: AN APPRAISAL

Author(s): Nneka Umejiaku / Language(s): English Issue: 40/2020

The protection of children and women in Nigeria is very critical because their integration in every sphere is a precedent to the growth and development of nations. However, they face diverse discrimination and violence because they are very vulnerable. The object of this study is to examine the rights of children and women by x-raying the various legal and institutional frameworks that provide for their rights, as well as dangers posed by taking their rights for granted. The work analyses factors that inhibit their protection and proffers a viable solution. In this paper, we adopt the doctrinal and empirical methods of legal research. The study discovers that despite a legion of legislation, children and women are exposed to many factors such as legal, social, economic, and obnoxious cultural practices. Further, the work reveals that inherent lapses are visible in our legal framework particularly the 1999 Constitution (as amended), Child’s Rights Act and other relevant legislation. Accordingly, the work recommends for the eradication of factors that promote child and women abuse and review of relevant laws. The work further recommends for a serious synergy between the government and non-governmental organizations for the protection of children and women.

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JUVENILE JUSTICE: GENESIS AND CURRENT STATE IN UKRAINE

Author(s): Mariia Kyrylenko / Language(s): English Issue: 40/2020

In this paper, the problem of the functioning of the juvenile justice as a system of all parts of the state mechanism, that deal with the problems of protection and socializing of children is considered. It is determined that the protection of children's rights in Ukraine is an urgent question. That is why providing proper conditions for life, development and socialization of the younger generation has become one of the priorities for the state policy of Ukraine. Hence, juvenile justice is one of the most effective ways to protect the rights and interests of children and youth. However the tendencies of formation of the juvenile legal policy of the state influence whether legal regulation of children’s protection can be implemented in the legal system of the state to that extent that it promotes the development of children's protection. Thus, there is a necessity to analyze the genesis, development and the current state of the juvenile law in Ukraine taking into account the practice of foreign states and defining the further perspectives of the juvenile law.

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THE THEORY OF FORMS WITHOUT SUBSTANCE A ROMANIAN LEGAL TRANSPLANT THEORY AHEAD OF ITS TIME

Author(s): Răzvan Cosmin Roghină / Language(s): English Issue: 40/2020

Comparative law and legal history show us that law is dynamic, always in continuous development, change, or mutation. This dynamic dimension has become a central concern for the comparative law scholars. The circulation of legal models in the world (e.g. legal transplant, legal transfer, legal borrowing, legal migration) is an evergreen issue. This phenomenon has provoked numerous doctrinal disputes, which have been encapsulated in complex theories on its possibilities and impossibilities. In the present article, we will not explore the many modern theories regarding legal transplantation (or under other metaphors). Instead, we will go back in time, in the second half of the nineteenth century, to explore an interesting Romanian theory that seems to have anticipated a series of modern ideas regarding the purpose, possibilities, and impossibilities of the circulation of legal models in the world. Following this approach, the main conclusion will be resumed to the idea that the Romanian theory of forms without substance can be integrated within the modern theories of legal transplant.

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CERTAIN CONSIDERATIONS REGARDING THE ATTRIBUTIONS OF THE ROMANIAN GUARDIANSHIP COURT IN THE PROTECTION OF THE MINORS

Author(s): Daniela Cristina Cret / Language(s): English Issue: 40/2020

The minors’ vulnerability led to the adoption of certain special means of protection. Among them, special protection measures and adoption play a special role. This paper analyses the Romanian court attributions, as guardianship court in the matter of these measures which are regulated by the dispositions of the Law no. 272/2004 republished, regarding the protection and promotion of children's rights and of the Law no. 273/2004 on the procedure of adoption, and it is intended to continue the paper on the same topic from the previous issue.

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Prawnie chronione dobra kultury a postępowanie upadłościowe

Author(s): Rafał Adamus / Language(s): English Issue: 2/2020

This paper deals with general problems of legal aims of bankruptcy proceedings in connection with the aims of heritage protection – issues built by completely different systems of values. Bankruptcy is designed for protecting pecuniary interest of a limited group of people, while cultural heritage is protected for present and future generations, despite its current commercial significance. In the global environment, bankruptcy of a cultural goods owner usually has a cross-border range but national bankruptcy legislations and laws devoted to heritage protection differ in very serious aspects. For this reason the paper is not limited to any concrete legal order. There are discussed some important universal issues: limits for a trustee in managing cultural goods which are a part of bankruptcy estate, legal status of cultural goods excluded from bankruptcy estate, consequences of bankruptcy sale in the case of lack of bankrupt’s ownership title.

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Legislacja w hipertekście

Author(s): Wojciech Cyrul,Tomasz Pełech-Pilichowski / Language(s): English Issue: 2/2020

Modern research on lawmaking in electronic format confirms the thesis that legal texts made available by means of various types of legal information systems form a hypertext structure. Furthermore, research on hypertexts confirms that the use of this technology undermines the structuralist theories of text that underlie traditional methods of legislation and interpretation of law. In this article, an attempt is made to show how a hypertext can be used to provide legal information and how it can affect traditional legal practices connected with drafting and interpreting legal texts. In particular, the considerations will focus on the analysis of the use of hypertext for the processing of legal documents (including digital representation of legal texts) and the possibilities that arise in this area in connection with the development of the so-called adaptive hypertexts. On this ground the question is analyzed whether and, if so, to what extent and in what way an adaptive hypertext can be used for the presentation and analysis of legal texts.

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„Z tą dziewczyną to okropne nieporozumienie. Poradź mi, co robić”. O bigamii Jaroslava Haška

Author(s): Joanna Czaplińska / Language(s): English Issue: 2/2020

In this article, Jaroslav Hašek’s bigamy will be discussed from two points of view – the biographical and legal ones. In almost every writer’s biography, the fact of his marrying two women is mentioned, but it is also quickly dismissed with only a few words of explanation. In the author’s opinion, after almost a hundred years following Hašek’s death, the case of his bigamy deserves proper interpretation.

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Różnice strukturalne i funkcjonalne między państwowymi i prywatnymi bankami w Iranie

Author(s): Amin Jaffari,Zahra Sohrabi Abad,Zahra Ghazinezhad / Language(s): English Issue: 2/2020

Banks, as financial institutions, play the role of financial intermediaries: savings, investments, production, employment and growth in the national economy are affected by operations of banks. State-owned and private banks have a relatively similar role and function and the rules and regulations governing them are not very different, because the non-usury banking act was adopted at a time when there was no private bank in the banking system of the country and all acts and regulations governing banking operations were approved by the government’s banking vision. At the moment, banks are moving within the same legal atmosphere. Hence, the question is whether private banks are taking the path that the government banking system has taken. Despite the similarities, these banks are sometimes subject to different rules and regulations in terms of how to establish, operate and dissolve. This structural difference has led to a functional difference and has often differentiated the ways in which resources are attracted and allocated and made the private banking system somewhat offset the deficiencies of the government banking system.

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Polityka praw własności intelektualnej na geodanych

Author(s): Marlena Jankowska / Language(s): English Issue: 2/2020

In this paper, the author presents intellectual property law policies related to geodata. The sole purpose of this paper is to open up this problem for further investigation and discussion. The concepts of geodata and legal interoperability have not received as much scholarly attention as they merit. Drafting one single model for geodata access is especially hard, given that geodata is produced and maintained in multifold environments. This makes it important to confront and discuss the factors influencing the licensing of geodata. On this basis the author proposes a taxonomy of the extremely diverse licenses for geodata.

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Prawne aspekty obowiązkowych szczepień ochronnych

Author(s): Anna Ulicka / Language(s): English Issue: 2/2020

The legal aspects of preventive vaccinations are one of the elements of broadly understood sanitary law and medical law. Protective vaccinations, as one of the fundamental measures in the protection of public health, are undoubtedly an extremely efficient method for battling numerous infectious diseases. The effective implementation of the universal vaccination obligation, imposed by the legislator, ensures a high level of the population immunization and prevents the epidemic spread of infectious diseases.

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Znaczenie dysfunkcji w sferze zdrowia psychicznego i fizycznego rodziców i dzieci w sprawach o pozbawienie władzy rodzicielskiej w świetle wyników badań własnych – aktowych

Author(s): Hubert Żukowski / Language(s): Polish Issue: 2/2019

Celem autora jest przedstawienie wpływu dysfunkcji w sferze zdrowia psychicznegoi fizycznego rodziców oraz dzieci na orzeczenie końcowe w sprawie o pozbawieniewładzy rodzicielskiej. Postępowanie o pozbawienie władzy rodzicielskiejwbrew pozorom nie jest postępowaniem, którego głównym celem jest stwierdzenie,czy dany rodzic zasługuje na wykonywanie władzy rodzicielskiej. Najważniejszązasadą tego typu postępowań jest ochrona dobra dziecka. Dlatego też pozbawieniewładzy rodzicielskiej nie następuje jedynie w sytuacji „zawinionej” przez rodzica,ale również w każdym przypadku, w którym dojdzie do trwałej niemożnościwykonywania władzy rodzicielskiej z przyczyn niezawinionych po jego stronie.Wobec tego w artykule zostały przedstawione dysfunkcje zależne (np. alkoholizmczy narkomania), jak i niezależne (np. choroba onkologiczna) obejmujące sferęzdrowia rodziców i dzieci. Dokonano także ich oceny w kontekście orzecznictwao pozbawieniu władzy rodzicielskiej. Wykorzystano materiały źródłowe (m.in. aktyprawne, piśmiennictwo prawnicze, orzecznictwo Sądu Najwyższego), wyniki badańwłasnych – aktowych, uzyskane przy pomocy narzędzia badawczego w postacikwestionariusza do badania akt sądowych.

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Nadmiar czy niedobór regulacji prawa czynności handlowych w kodeksie cywilnym?

Author(s): Piotr Bielski / Language(s): Polish Issue: 4/2019

Jedną z konsekwencji znaczącej aktywności legislacyjnej Sejmu Rzeczypospolitej Polskiej po 1989 r. jest między innymi to, że licznym nowelizacjom podlegają również akty prawne pełniące w systemie prawa szczególną funkcję (kodeksy).Czy nowelizacje te wpływają na spójność i przejrzystość zawartych w kodeksach regulacji prawnych? Czy np. zasadniczym motywem podejmowania wielu zmian legislacyjnych, którym podlegał kodeks cywilny w odniesieniu do regulacji prawnych obrotu gospodarczego - w tym zwłaszcza w odniesieniu do regulacji prawa czynności handlowych - po zmianie ustroju społeczno-gospodarczego w latach1989-1990, był zamiar realizacji zasługującego bez wątpienia na aprobatę postulatu uwzględniania potrzeb współczesnego obrotu gospodarczego, poprzez modernizację istniejących, wprowadzanie nowych i ewentualnie rezygnację z tych istniejących regulacji prawnych w omawianej materii, których praktyczne znaczenie i zastosowanie jest obecnie znikome? Czy wobec tego w odniesieniu do aktualnego kształtu regulacji prawa czynności handlowych w kodeksie cywilnym można mówić o jej optymalnym stanie, czy też może o nadmiarze albo niedoborze regulacji prawnych w tej materii? Czy istnieją projekty zmian wymienionego obszaru regulacji prawnych i w którym kierunku zmierzają? Przedmiotem niniejszego opracowania jest poszukiwanie odpowiedzi na powyższe pytania.

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Excess or Deficiency of Regulations of the Commercial Activities Law in the Civil Code?

Author(s): Piotr Bielski / Language(s): English Issue: 4/2019

The author of the paper understands the term of “excess of legal regulations” as thesituation of imposition of regulations governing a specific institution of the commercialactivities law under the Civil Code, which are fully or partially obsoletefrom the point of view of the needs of contemporary business trading. The termof “deficiency of legal regulations”, in turn, is to denote a complete lack of a regulationof a specific institution of the commercial activities law as may be desired inthe domain of contemporary business trading, or the existence of such a regulationbut in a form that is limited, incapable of addressing the needs and challenges ofthe said domain. When it comes to the legal regulations of the commercial activitieslaw, the author argues that it is hard to regard the current legal situation in Polandas successfully fulfilling the requirements of a coherent legal system and of the legislativetechnique principles that are applied therein. In the text, the author providesa detailed explanation of why commercial activities governed by the Civil Codesuffer from a substantial deficiency of legal regulations in the scope in question.

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Reflecții privind pensia de urmaș din perspectiva naturii sale juridice

Author(s): Alexandru Athanasiu / Language(s): Romanian Issue: 11/2020

This study examines the following issues: the legal nature of the survivor’s pension, the possibility of obtaining the survivor’s pension by a person, if his legal provider was also the holder of a survivor’s pension, how to calculate the survivor’s pension in case it is established, having as legal reference another survivor’s pension, the possibility of applying the correction index when establishing the amount of the survivor’s pension. The beginning of a relatively detailed legal analysis, in connection with these aspects presents a relevant degree of novelty for the Romanian legal literature, as neither the doctrine, nor the case law paid due attention to these problems, of indisputable theoretical interest and real practical utility.

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Răspunderea civilă a funcționarilor publici. Inconsecvențe și omisiuni legislative și jurisprudențiale

Author(s): Alexandru Țiclea / Language(s): Romanian Issue: 11/2020

The following study critically analyzes the civil liability of the civil servants. It is estimated that it is about a contractual liability, however different from the patrimonial liability and from the material liability, regulated in the case of employees, respectively of the military and of other categories of personnel. The cases of civil liability of the civil servants are presented, as well as the conditions of this form of liability. Special attention is paid to the procedure of reparation of damages (imputation order or disposition and the payment commitment), including with regard to the former civil servants.

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Reflecții asupra reglementării căilor de atac în unele legislații procesual civile europene

Author(s): Ioan Leş / Language(s): Romanian Issue: 11/2020

In the first part of the study, the author emphasizes the importance of the legal remedies for making justice more efficient, one of the important objectives of any reform programme in the field. The finding is natural, since a good regulation of the legal remedies can make a substantial contribution to the resolution of the trials within a reasonable time, in order to use only a unanimously accepted phrase. The general tendency of the contemporary procedural regulations is to carry out a simplification of the legal remedies and to avoid congestion of the courts, especially the courts of appeal and the supreme courts. For this purpose, the vast majority of the analyzed regulations establish some limitations – value-wise – of the exercise of the legal remedies or establish means of filtering the reviews, and in some countries even of the appeals. The author also notes that in some procedural systems the ordinary legal remedy of the appeal cannot be exercised in low value disputes. One of the author’s conclusive remarks is that the filtering systems of some legal remedies are efficient and contribute to the resolution of processes with celerity. Another final conclusion is that the Romanian legislator has abandoned such an approach, and this should be reconsidered in the future.

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