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Evoluția contractului ca mijloc de transmitere a proprietății în 100 de ani de la Marea Unire

Author(s): Radu Stancu / Language(s): Romanian Publication Year: 0

As it appears from the title, this paper proposes the chronological presentation of the contract in Romanian law during the 100th anniversary of the Great Union.The development of the subject is interwoven around the role of the middle contract of ownership and the particularities of its fulfillment in every historical period traversed from 1918 to the present day. At the same time, this paper brings to light the effects of new technology on the positive law and, above all, on the notion of contract.

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Despre obligativitatea formei autentice la încheierea promisunii de vânzare a unui bun imobil în vederea pronunțării unei hotărâri care să țină loc de act autentic

Author(s): Victor Marcusohn / Language(s): Romanian Publication Year: 0

The curent study has as main objective to analize a recent decision of the Romanian Supreme Court of Justice, ruled in order to solve a general legal issue, according with the provisions of article 520 paragraph 8 of the Civil procedure code and of article 275 paragraph 1 of the Regulation on organising and administrative functioning of the Supreme Court of Justice, republished, with further modifications. It is about Decision no.23/2017 by which the Supreme Court has stated that „in the interpretation and aplication of article 1.279 paragraph 3 first thesis and article 1.669 paragraph 1 of the Civil Code, the authentic form is not mandatory for the conclusion of a sell promise of an imobile good, in order to pronounce a decision which substitutes an authentic act.

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Considerații privind Proiectul de modificare și completare a Legii nr. 17/2014 privind unele măsuri de reglementare a vânzării terenurilor agricole situate în extravilan

Author(s): Cristian Jora / Language(s): Romanian Publication Year: 0

The judicial movement of the lands brought up the necessity to adopt a normative act providing for the alienation of land, the conditions for the acquisition of the private ownership right on lands, but also the possibility for foreign citizens, stateless persons and foreign legal persons to acquire the private ownership right of lands in Romania. Thus, Law no. 312/2005 on the acquisition of the private ownership right on lands by foreign citizens and stateless persons, as well as by foreign legal persons. Then, Law no. 17/2014 regarding certain measures for regulating the sale and purchase of agricultural lands situated in unincorporated areeas and amending Law no. 268/2001 on the privatization of commercial companies which hold the management of the State public property and private property with agricultural destination and the establishment of the Agency of State Domains. These normative acts contain many debatable provisions and require certain changes. Thus, an amending and completing draft to the Law no. 17/2014 is in debate at the Chamber of Deputies, on which we will make some clarifications.

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Câteva aspecte privitoare la clasificarea prejudiciului din perspectiva răspunderii civile delictuale

Author(s): Florin Barbu / Language(s): Romanian Publication Year: 0

The issue of tort criminal liability must be analysed in a dynamic, evolutionary context, taking into account everything that is social actuality. Originally viewed from the point of view of its sanctioning function, civil liability has claimed and claimed new trends in its purpose. For practical reasons, the replanting of civil liability was questioned, not in relation to the author of the offense, but to the person injured by the civil offense. Thus, the centre of gravity of the tortuous civil liability is the victim of the illicit deed, the main person interested in the settlement of the civil dispute being this.Also in this respect, the hierarchical restructuring of the functions of the civil tort liability is necessary. Starting from the assumed assumption, that the pillar of tort liability is the person injured by the illicit act, we appreciate that the reparatory function of liability acquires correlative ground at the expense of its sanctioning function. Injuries can be classified according to several criteria. Thus, we distinguish according to some authors, the following criteria: the instinctive nature of the prejudices; the possibility of providing damages at the time of production; the degree of generality; the patrimonial or non-patrimonial character.

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Marea Unire și impactul ei asupra legislației în materia cărților funciare

Author(s): Nora Daghie / Language(s): Romanian Publication Year: 0

The political unity achieved in 1918 was not doubled, at least in the immediately next period, by the legislative unity. Consequently, what happened in 1918 had a direct impact on the land registry legislation, as well. Legislative unification was an historical, political, but also legal imperative for contemporaries.The legislative unification process was done in time and with difficulty. The opposition took various forms, from peaceful ones, of intellectual type, to acts tolerated by excessive indulgence. Certain regulations of social relationships were considered more advanced, which resulted in taking over their essence in normative acts applicable throughout the unified Romanian territory. This is the case of the Decree-Law no. 115/1938 for the unification of the land registry provisions, by which the Transylvanian land registration system, much more rigorous than that of transcriptions and inscriptions borrowed from the Napoleonic Code and used in the Old Kingdom, was replaced.The theme of the influence of the European legislation on the Romanian legislation in the field of land registries is well known both from the recitals of the normative acts adopted, as well as from the specialized literature.

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Opinii privind exercitarea exclusivă a autorității părintești în cazul decesului unuia dintre părinți

Author(s): Marius-Ionel Nicolau / Language(s): Romanian Publication Year: 0

As a rule, the parental rights and duties ― those related to the minor as well as those related to his/her property — are exercised by both parents jointly and equally by virtue of full equality of rights of the parents, which is an additional guarantee in regard to the protection of the best interest of the minor. Thus, on the basis of this fundamental principle, the parents do not act in a dispersed manner, each on his/her own, but in concert, as they are obliged to unite their efforts for an overall action. The rule that both parents exercise parental authority in common cannot lead to the conclusion that there can be no situations ― whether in law or in fact — in which its exercise rests entirely with only one of the parents. Thus, if one of the parents is deceased, declared dead by a court order, declared mentally incompetent, is suspended from the exercise of parental rights or, if for any reason is unable to express his or her will, the other parent exercises parental authority alone. Interpreting the provisions of art. 110 par. (1) of the Civil Code, one can see that the death of one of the parents automatically leads to the exclusive exercise of parental rights and duties by the surviving parent without the need for the intervention of the Central Family Court respectively when the end of the parental rights and duties of the deceased spouse occurs. The transmission of the exercise of parental authority to the surviving parent is simple and complete in the sense that it is accomplished through the mere fact of the death of the parent exercising the parental authority in common and covers the entire ensemble of parental rights and duties. The ensemble of the prerogatives of parental authority is given to the remaining parent, under the sole reserve of the rights that could not have been withdrawn from the parent affected by a partial forfeiture. Intervening by virtue of law, the transmission is carried out in full and it is not necessary for the holder to request it in court

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Considerații cu privire la stabilirea caracterului de ordine publică sau de ordine privată a normelor de competență teritorială a instanțelor judecătorești

Author(s): Nicolae-Horia Ţiţ / Language(s): Romanian Publication Year: 0

The article analyses the criteria on the basis of which the public order or private order character of territorial jurisdiction rules is determined by reference to the characterization of the elements of the juridical relationship inferred to the judiciary and the exclusivity of the rule of competence.

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Arhitectura procesului civil din perspectiva doctrinei civile și procesual civile a Codului Civil și a Codului de procedură civilă

Author(s): Pavel Filip / Language(s): Romanian Publication Year: 0

The Civil Code and Code of Civil proceedings, in force, have configured a new architecture of civil trial by valuing some of the opinions expressed in the legal papers, related to the definition of notion of civil action, by three significations, procedural, material and as a range of proceeding means, by express ruling of litigious legal report and thus by a logic connection between two elements of civil trial.Therefore, the material signification of civil field was ruled in the form of a material right to action with own scope, by art. 2500 of Civil Code, whereas the procedural signification was ruled in the form of a procedural right to action with own scope, by art.30 of Code of civil proceedings, and consists in the notification of competent court by filing a summons.The overall signification of procedural means of civil action was ruled by art. 29 of code of civil proceedings.The ruling of material right to action in the civil code has entailed the analysis of it comparatively to what is called subjective civil right in the specialised legal literature, when noticed differences between actual civil subjective right and material right to action as well as the similarities to the right of notification of court.The code of civil proceedings rules expressly, by art.36, the basic element from the architecture of civil trial, respectively the litigious legal report, the occurrence of which give the holder of subjective civil right the possibility to exercise, concomitantly, the material right to action and the procedural right to notify the competent courts.By the new ruling of architecture of civil trial, connecting logically the constitutive elements of civil trial, we believe that it is no longer justified to express a different opinion in the legal literature about what is defined by the notions of civil action, material right to action and right to notification.

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Completarea hotărârii judecătorești civile. Încălcarea dreptului la un proces echitabil

Author(s): Dumitru Dinu,Mariana Stan / Language(s): Romanian Publication Year: 0

The article analyses the stage of the deliberation and the pronouncement of the court decision, the divergences appeared, the clarifications and completions of the pronounced decision, the contradictions occurred and the subsequent completion of the decision.

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Despre posibilitatea tribunalelor arbitrale de a adresa întrebări preliminare Curții de Justiție a Uniunii Europene - ipoteza României prin raportare la ultimele tendințe

Author(s): Maria-Magdalena Cardiş / Language(s): Romanian Publication Year: 0

At a national and international level, the arbitral tribunals are acknowledged and accepted as being judicial bodies having a similar activity with the one of a national court or tribunal. In spite of this, at the level of the European Union, these are not seen as being very similar, given their conventional nature. At first, the point of view of the CJEU was that an arbitral tribunal cannot be seen as a ‘court or tribunal of a Member State’, today the rule seems to also know some exceptions in several specific cases. In this manner, it can be observed that in a few situations an arbitral tribunal has been considered as being a ‘court’, as for in other situations this quality has been denied. In the present context, the CJUE analyses in deciding whether an arbitral tribunal can make a referral for a preliminary ruling, among other factors, the domestic law of the Member Sate of the specific arbitral tribunal. Taking into consideration the provisions of Art. 146, d) of the Romanian Constitution, it would be interesting to see if a request for a preliminary ruling coming from a Romanian arbitral tribunal would be solved by the CJEU, or it would be rejected, for the arbitral tribunals are not “courts or tribunals of a Member-State”.

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Tendințe de eficientizare în lumina noilor Reguli române de procedură arbitrală

Author(s): Cristina Florescu / Language(s): Romanian Publication Year: 0

Arbitration is the preferred method of settling disputes for the majority of professionals in the field of commerce, for whom celerity and resolving their dispute in flexible, confidential conditions and by specialists chosen by them constitute a priority. Even though the arbitration increased with the support of the courts and the state, however, over time it became more autonomous and thus developed its own procedural rules. The Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania has adopted new Arbitration Rules developed from good practices and international rules in the field. The paper presents the methods of efficiency proposed by the New Rules to be applied by arbitrators assigned with intensified powers and with an increasingly active role to control case management. The rules, and especially the efficiency tools, are designed to correct the parties' attitudes and to respond to their needs and the latest trends in order to make the procedure more efficient and to ensure the most favourable climate for optimal resolution of disputes in high professional conditions

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O privire comparativă asupra cauzelor de desființare a contractului de vânzare în Legiuirea Caragea și Codul civil român

Author(s): Andra-Ioana Alexe / Language(s): Romanian Publication Year: 0

The drafting of this study started from the finding that the regulations in the Caragea Code and the current Romanian Civil Code in the matter of the causes of the dissolution of the sale are strikingly similar.The present study aims to analyze cases from both regulations in order to better understand the tradition of our civil law, which has been largely preserved since 1818 to the present. Of course, the current Romanian Civil Code regulates the cases of abolition of the sale in an evolved way to Caragea Law, being adapted to the social reality of our day.

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Manifestări ale autonomiei de voinţa în cazul contractelor aleatorii

Author(s): Andreea Mariana Sima / Language(s): Romanian Publication Year: 0

The essence of private Romanian law itself, the autonomy of the will was elevated to the standard of a principle, transposing abstract legal relations into the plan of social reality. The theory of autonomy of will, closely related to freedom of contract, knows, aş any other right or freedom, boundaries and fencing, not being absolute. These occur, however, due to its need to adapt to the new economic and social realities and manifests through the supremacy of law or a part, who imposes certain conditions, detrimental to contractual equality.

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Noi evoluții legislative privind acţiunea directă a lucrătorilor împotriva beneficiarului, în contractul de antrepriză (art. 1.856 NCC)

Author(s): Dumitru Dobrev / Language(s): Romanian Publication Year: 0

The study presents recent developments in the direct action regulations in Romanian law under the impact of the transposition rules of the EU Directive no. 2014/24.

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Recalificarea unui contract civil ca având natura juridică a unui contract de muncă

Author(s): Raluca Dimitriu / Language(s): Romanian Publication Year: 0

Re-qualification of a civil contract as an employment contract is the work of unlocking its true legal nature, by removing the improper terms used by the parties and bringing into light the true agreement between them. The re-qualification can be done by a fiscal control body, by a labor inspection body, or it can be done by the courts themselves, most often at the request of the worker, who thus seeks to benefit from the protective labor law rules inaccessible to the person who concludes a simple civil contract.This paper aims at highlighting the situations in which the re-qualification of the civil contract, as a labor contract, by the different state authorities, the relationship between their competences and their methodology of each of them and the effects of the re-qualification. The paper is finalized with a series of conclusions and proposals meant to improve the legal provisions and to bring added consistency to the current legislative structure in the field.

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Soluționarea conflictelor de muncă. Dreptul la grevă

Author(s): Mariana Stan / Language(s): Romanian Publication Year: 0

The article analyses the right to strike and the strike as an instrument of exercising the right to strike, history and development, internal provisions, limitations on the exercise of this right, and strike conditions.

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Evoluția reglementării Contractului de ucenicie la locul de muncă

Author(s): Anca-Verginica Lăcraru / Language(s): Romanian Publication Year: 0

The apprenticeship apprenticeship at the workplace begun to be regulated at the legislative level since 1884, successively until 2005. Throughout the legislative changes the parties to the apprenticeship contract have experienced various changes during the evolution of legislation, from employer and student to apprentice and apprentice. Also, the minimum age a person had to have to be able to work as an apprentice ran from 11 to 16. However, in general, the components of apprenticeship (work combined with vocational training), the rights and obligations of the parties to the apprenticeship contract, have always been the same, even though the conditions of exercise have changed over the years, adapting to the new changes at the social level.

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Principiul consensualismului și reglementarea contractului de muncă în dreptul românesc

Author(s): Dan Ţop,Lavinia Savu / Language(s): Romanian Publication Year: 0

Although not explicitly expressive in the Civil Code from 1864, the existence of the principle of consensualism has not been questioned, being present in the first regulations of the individual labour contract in our country. The regulation of the individual labour contract did not have adequate legislative provisions at the beginning of the 20th century, it was rather regulated by the provisions of art. 1470, 1471 and 1472 of the Civil Code. The 1929 labour contract law involved consensualism as a rule with regard to the individual labour contract. The consensual character was also preserved by the Labour Code of 1950 or 1972. Even though the 2003 Labour Code provided the written form for the conclusion of the individual labour contract, the consensual character was not at all mitigated, the written form being required only ad probationem. The regulation of the written form as a condition for the validity of the individual labour contract as a result of the amendment of the Labour Code in 2011 led to the mitigation until the consensual character of the individual labour contract, the return to functioning of the principle of consensualism as a fundamental principle of labour law being again enshrined as a result of the changes in 2017.

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Administratorul societății – privire retrospectiv-istorică, evoluție legislativă, repere contemporane

Author(s): Dragoș-Mihail Daghie / Language(s): Romanian Publication Year: 0

Our regulation in the field of companies has faced and undergone numerous changes both in terms of ideology but especially in terms of circumstances. Without making an exhaustive and complete historical presentation of the evolution of company regulations in Romania, we mention only the provisions of the Commercial Code and of Law no. 31/1990 as the contemporary benchmarks with regard to the relevant provisions of the regulations on (commercial) companies with legal personality but also in the matter of the administration of companies.These two pieces of legislation have successively undergone changes as a result of the need to adjust them to the current social reality and then as a result of need to align them with the standards imposed by the Community law in the matter of companies and that of the administration of companies.The Commercial Code, in its initial form, mentioned the position of administrator at art. 90 par. (8) when specifying the content of the instruments of incorporation or the statutes of anonymous companies and those of limited partnerships. This form of the article was preserved until 23.08.1940 when it was modified by the Commercial Code of Carol II - Decree-Law no. 2773/1940 for the implementation of the Carol II Commercial Code.This form of the Commercial Code, except for the provisions regarding the company and administration abrogated by the Law no. 31/1990, remained in force until the entry into force of the new Civil Code.

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Transformările din ultimul secol în materia legislației brevetării invențiilor din România

Author(s): Paul Popovici / Language(s): Romanian Publication Year: 0

The present study briefly examines the main provisions of the 1906 Patents Act, since the period in which it was in force is included in the timeframe we are interested in.In the Romanian specialty doctrine it was stated that this law would not be the first act by which industrial creations benefit from protection. Although it seems to go beyond the article, a brief analysis of the issue is not unrelated because it clarifies whether the law of the past one hundred years was or was not the first legal measure in the matter, with all its consequences.Current legislation, with all inherent imperfections, is nevertheless a real breakthrough in lawmaking, in connection with international provisions, or in the reception of practical problems, leading to the development of consistent, unitary and up-to-date legal provisions, including terminological and registration procedures. The last hundred years in the field of patent law was a period of time in which the most qualitative-positive changes took place, reaching today an efficient regulation system linked to the imperatives of a state of law.

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