Lex et Scientia International Journal
- Universitatea Nicolae Titulescu
- Publication date:
- Nbr. XXV-2, July 2018
- Nbr. XXV-1, January 2018
- Nbr. XXIV-2, July 2017
- Nbr. XXIV-1, January 2017
- Nbr. XXIII-2, July 2016
- Nbr. XXIII-1, January 2016
- Nbr. XXII-2, July 2015
- Nbr. XXII-1, January 2015
- Nbr. XXI-2, July 2014
- Nbr. XXI-1, January 2014
- Nbr. XX-2, July 2013
- Nbr. XX-1, January 2013
- Nbr. XIX-2, July 2012
- Nbr. XIX-1, January 2012
- Nbr. XVIII-2, December 2011
- Nbr. XVIII-1, January 2011
- Nbr. XVII-2, July 2010
- Nbr. XVII-1, January 2010
- Nbr. XVI-2, July 2009
- Nbr. XVI-1, January 2009
- Effect Of Labour Law Regulation On The Employment Relations Based On The Connection Between Social Rights And Labour Market
In the world of employment, we can find several aspects that have effect on the labour market. Labour market cannot be independent from the legal regulation of employment; moreover - according to the tendencies - labour market processes basically define the role of labour law. A fundamental difference can be observed between the approach of Anglo-Saxon countries and researchers and the viewpoint of the continental law systems. In this paper the emphasized question is analysed through these two different approaches according to the following premise: the Anglo-Saxon legal thinking defining the current development of labour law bears significant differences related to the labour law regulation - which means the direct regulation of labour market - and to the legal guarantees behind employment as well. From the viewpoint of the labour market two main questions are examined in this paper: on the one hand, the expected and necessary level and method of public intervention in connection with social rights, and on the other hand the deepness of the intervention of labour law into the social relations driven by the market. Keywords: reflexive labour law, human capital, flexicurity, ability-theory, soft law tools
- The European Investigation Order In Criminal Matters - Grounds For Non-Recognition Or Non-Execution
The European Investigation Order (EIO) is the newest mechanism for judicial cooperation in criminal matters. This instrument was laid out in the Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 and was transposed into the Romanian legislation through the most recent changes of the Law nr. 302/2004 concerning international judicial cooperation in criminal matters. The main goal was the introduction of a single instrument for the gathering of evidence between EU Member States in cases with a cross-border dimension. Also, the European Investigation Order is the most recent application of the principle of mutual recognition of judgments and judicial decisions, which is, since the Tampere European Council the cornerstone of judicial cooperation in criminal matters within the Union. Starting with an analysis of the principle of mutual recognition, this paper presents the grounds for non-recognition or non-execution provided both by the Directive regarding the European Investigation Order and Romanian national legislation. Non-recognition and non-execution grounds of a European Investigation Order are either the classic reasons for the cooperation instruments (ne bis in idem principle), but are also noticed through elements of novelty as the ones based on respecting the fundamental rights, aspect that represents an important step in the cooperation matter and shows the ECJ jurisprudence tendency. Keywords: European investigation order, principle of mutual recognition, judicial cooperation in criminal matters, mutual legal assistance
- The Posibility Of The Debtor To Request Public Judicial Assistance In The Form Of Bail Exemption Or Reduction During A Provisional Suspension Of The Forced Execution Case
The situation is becoming more and more common nowadays. A debtor, lacking in sufficient fonds, is forced to request public judicial assistance from the Court so that he may be exempted from the obligation of paying bail during a provisional suspension of the forced execution case. The article shall focus on the applicability of Article 6 of the E.C.H.R., on the national provisions and on whether or not they may allow such a request to be analysed by the Court and not be rendered inadmissible. Some practitioners have viewed this possibility as inadmissible in accordance to our national legislation. In their view, no legal text allows the debtor to request this type of aid and no legal means are offered to regulate this type of legal problem. Others have granted public judicial assistance after careful consideration of the economic situation of the debtor, in regard to the fact that his right to a fair trial extends even to this particular situation. By not granting him the opportunity to present his arguments at this stage of the trial due to a lack of funds, a sort of discrimination may be generated in favour of the debtors who can financially afford to present their case as opposed to those who cannot. The article shall thus carefully ponder the interests and obligations of the parties involved in the trial so as to establish some useful conclusions or good practices regarding the issue at hand. Keywords: public judicial assistance, bail exemption, provisional suspension, forced execution, Court's role
- Specific Aspects Of The Offense Of Leaving The Place Of The Accident
The legislator has adopted the respective texts of law to the new social realities once with the repeal of the criminal segment of GEO no. 195/2002 relating to the circulation on public roads, republished and the introduction of this one in the content of the New Criminal Code. The offence of leaving the place of the accident, actually found in the content of the provisions of art. 338 of Criminal Code is one of the eight offences against the safety on public roads. Knowing important modifications, the legal text may appear relatively ambiguous if we refer to the old indictment, meaning that certain factual situations remained outside the criminal law. We will analyse in this regard the obligations that arise to the driver in case of a traffic accident, bringing into question even the decriminalization of the prohibition of the consumption of alcohol after the road event. Furthermore, we will treat even aspects related to the causes of special no imputation that, on a closer analysis, can create problems of interpretation. Through the phrase "it does not constitute the offence of leaving the place of the accident when only material damages occurred after the accident", the legislator has chosen to indict this offence even if the victim has evaluable lesions within 1-2 days of medical care, on condition that for the same fact, in the old regulation, 10 days were required or it was an oversight of the legislator that it is to be resolved at some point? Keywords: accident, driving, circulation, Criminal Code, offence, road
- Usucaption As A Means Of Acquiring The Ownership Title
According to the Civil Code in force, the ownership title may be acquired, according to law, by convention, legal or testamentary inheritance, accession, usucaption, as effect of the good-faith possession in case of movable assets and fruits, by occupation, tradition, as well as by court decision, when it is not conveyancing by itself. Moreover, according to the law, the ownership title may also be acquired by to the effect of an administrative act, and the law may further regulate other means of acquiring the ownership title. Therefore, the usucaption is that modality of acquiring the ownership title and other main real rights by exercising an uninterrupted possession over an asset, within the term and under the conditions provided for by the legislation in force. In Romanian modern law, referred to as acquisitive prescription, usucaption was first regulated in the Civil Code adopted on 1864, which stipulated two types, i.e.: short-term usucaption, of 10 to 20 years and long-term usucaption, of 30 years. The institution of usucaption is justified, in relation to the situation of the owner, as the need for stability of the situations and of the legal relations imposes, at a certain time and subject to compliance with certain conditions provided for by the law, the acknowledgment of certain legal effects to the long appearance of property, until transforming a situation de facto in a situation de jure. Concurrently, as the courts also considered, in justifying the institution of usucaption one cannot put aside the situation of the former owner, meaning that, indirectly, the usucaption is also a sanction against the former owner's passivity, who waived his own good and has not been interested in it for a long time, leaving it in the possession of another person who behaved as owner or as holder of another main real right. Depending on the nature of the asset susceptible of usucaption, the usucaption may be of two main types: immovable usucaption and movable usucaption. In its turn, immovable usucaption may be extra-tabular immovable usucaption and immovable tabular usucaption. As one will establish during the study, the extra-tabular usucaption operates in favor of the holder of the asset representing the subject of an ownership title over an immovable asset that was not registered with the land register, tabular immovable usucaption operates in the favor of a person who is registered in the land register as the rightful onwer of a key immovable property right, only if the registration was maded without "legitimate grounds". Keywords: usucapio, right of ownership, possession, real estate usucapio, movable assets usucapio
- Water Infestation As A Crime Under Romanian Law
The purpose of this paper is to highlight the main theoretical issues concerning the enforcement of art.356 of the Romanian Criminal Code, in regard to the protection granted by several special regulations that protect water resources. In order to establish a frame for the content of this article, its structure shall be divided into four parts. The first part will consist of an introduction, in order to establish the importance of this subject and its actual status in Criminal Law literature. The second part will represent the first half of the paper content and will consist of a special criminal law approach to the provisions of art.356 of the Romanian Criminal Code, most importantly pointing out its constitutive content. The third part, namely the second half of the paper content, will refer to specific provisions found in art.92 of Law no.107/25.09.1996, namely The Water Law or in art.98, paragraph 4, let.b of Government Emergency Ordinance no.195/22.12.2005, regarding the protection of the environment and finally in art.49 of Law no.17/07.08.1990, regarding the Regime of interior maritime waters, of the territorial sea, of the contiguous zone and of the exclusive economic zone of Romania, and their relations with the provisions of art.356 of the Romanian Criminal Code. The fourth and final part will consist of brief conclusions as resulting from the content of this article, respectively the actual configuration of water protection, by Romanian Criminal Law provisions today, with a de lege ferenda proposal. Keywords: water infestation, environmental protection, criminal liability, crimes against the environment, water protection
- Rulings Of The National Courts Following The Curia Decision In Case C-186/16, Andriciuc And Others Vs Banca Romaneasca
The CJEU's judgment in Andriciuc and Others vs Banca Româneasca Case C-186/16 that came in September 2017 is an addition to a growing body of case law on procedural obstacles to consumer protection under Directive 93/13/EEC. According to the Court, a contractual term must be drafted in plain intelligible language, the information obligations should be performed by the bank in a manner to make the well-informed and reasonably observant and circumspect consumer aware of both possibility of a rise or fall in the value of the foreign currency and also enabling estimation of the significant economic consequences of repayment of the loan in the same currency as the currency in which the loan was taken out. Following a succession of consumer-friendly preliminary rulings from European Court of Justice (Case C-26/13, Árpád Kásler, Hajnalka Káslerné Rábai v OTP Jelzálogbank Zrt and Case C-186/16 Andriciuc and Others v Banca Româneasca, bank customers across the European Union are increasingly taking their banks to court. However, there are still a lot of provisions in the national legislations which made the judicial review of unfair contract terms difficult and reveals the limits of consumer protection under Directive 93/13. Also, we focus on the powers of the national court when dealing with a term considered to be unfair (civil) courts and the availability of legal remedies in ensuring the effectiveness of the Directive. Although the CJEU provides interpretation of EU law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The ruling issued by the Court of Justice of the European Union (CJUE) in the Andriciuc versus Banca Româneasca case represents a great advantage for some of the European debtors. In this paper, we intend to examine, starting from the theory of abusive clauses and referring to the jurisprudence of the European Court of Justice in the matter, to what extent it is possible that under Council Directive 93/13 / EEC of 5 April 1993 on unfair terms in consumer contracts and the national laws of the various Member States to order "freeze of the exchange rate" or conversion of the currency of the credit into domestic currency Keywords: unfair terms in consumer contracts; plain intelligible language in consumer contracts; significant imbalance in the parties rights and obligations arising under the contract; case C-186/16 Andriciuc and Others v Banca Româneasca; case C-26/13, Árpád Kásler, Hajnalka Káslerné Rábai v OTP Jelzálogbank
- Brief Overview On The Penitentiary System - Less Common Aspects
After last year's study regarding the occupational therapy as a possible solution for preventing the breach of criminal law1, in which we have analysed the penitentiaries in Europe, we have considered to further explore the penitentiary system in order to show the lesser-common aspects. Around the world there are prisons which offer those who have been convicted a decent life, as these facilities have been especially designed to re-educate them. Therefore, we have considered that it might be useful to approach the types of penitentiaries that exist around the world because the persons interested in this subject will have the possibility to get a comprehensive view on the evolution of one specific part of the punitive justice system, namely prisons, considering the development of the human society, as well as peoples' mentalities. Keywords: penitentiary, prison, punitive measures, security
- At A Crossroads: The Case Of 'Pathological Arbitration Clauses' Which Determine A Jurisdictional Fight
The so-called ‘pathological arbitration clauses' are ambiguously drafted arbitration agreements which disrupt the setting in motion of an arbitration proceeding. A particular situation is the case where parties refer both to the jurisdiction of the arbitration tribunals and to that of the domestic courts in their contracts, without giving further detail. Such agreements may be interpreted in different ways and they currently cause controversy among several theorists and practitioners. However, in recent years the arbitration tribunals strive to maintain the validity of the defective arbitration clauses by preferring an interpretation which gives effect to the clauses over one which does not. Our paper briefly examines this kind of defective arbitration clauses and the solutions provided by doctrinaires and courts. In the end, we assess the issue and attempt to establish the parties' true intention in order ‘to remedy' the pathology. Keywords: pathological arbitration clauses, defective arbitration agreements, defective clauses, arbitration problems, jurisdictional fight
- Systematic Thinking About Employee Status
Over the past decades, the international and European policy debate has focused on who is considered to be an employee and what kind of workers are covered by the protection of employees, i.e. the extension of the scope of labour law There is a deep-set problem lying behind this global thinking. The application of the principle of equal treatment in private law encompasses a lot of tension. Private law including labour law is confronted with human and constitutional rights when vulnerable groups, like women, the elderly, parents, persons with disabilities are integrated into the labour market. In labour law human and constitutional rights make freedom of contract, being more limited than civil law, seek further compromises. In labour law, there is a clear conflict between the prohibition of discrimination, the freedom of contract and the freedom of provision provided by property law. In the event that labour law regulation is left alone and is not considered systematically, conflict can result in controversial legislative solutions. Keywords: labour law regulation, flexicurity, social and labour market program, equality rights, integration policy, personal scope of labour law and labour protection, employee status, labour-market status
- Legal Basis And 'Trasversal' Interpretation Of The Ultimate Reforms Of The European Union Jurisdictional System
The present work focuses on the analysis of the latest reform of the EU jurisprudential system which started in 2011 and has been completed on March 2018. The purpose of the analysis is to interpret the need for these reforms, the time needed, the reasons and the effectiveness they will have for...
- Admission of guilt in the Romanian Criminal Procedure Code. A comparative law perspective
Entry into force of the Law no. 202/2010 regarding some measures to accelerate the settlement of the process, already raises a number of problems of interpretation. According to the Explanatory Memorandum of Law 202/2010 states that: "Unlike the other laws, the Law no. 202/2010 comes into...
- Whitehead´s Ideas Within Some Romanian Juridical Thinkers
Alfred North Whitehead (1861 - 1947) was a mathematician, logician and English philosopher, being the most important representative of the philosophical school of thought known as “process philosophy,” which today has found application to a wide variety of disciplines such as: ecology, theology,...
- Protection of inventions in the pharmaceutical sector through supplementary protection certificate
The topic of health is nowadays, more than ever in the history of mankind, one that enjoys an entirely special attention. It concerns, albeit at a different level, the sick and the healthy, doctors and patients, the young and the elderly, women and men. It concerns governments and individuals,...
- The legal protection of refugee: Western Balkanas
States have been granting protection to individuals and groups fleeing persecution for centuries; however, the modern refugee regime is largely the product of the second half of the twentieth century. Like international human rights law, modern refugee law has its origins in the aftermath of World...
- EU directives in the field of copyright and related rights
The aim of this article is to underline the evolution and the importance of the European Directives in the field of copyright and related rights, their contribution to the development of the law and the national implementation, namely their transposition into Romanian Law no. 8/1996 on copyright...
- Harmonization of national procedural provisions concerning the enforcement of intellectual property rights
This short paper looks at provisions concerning very specific aspects provided for at international, regional and national level and analyzes the level of harmonization between such. Given the importance of provisional measures (and especially of preliminary injunctions) for the protection of...
- Effect Of Labour Law Regulation On The Employment Relations Based On The Connection Between Social Rights And Labour Market
In the world of employment, we can find several aspects that have effect on the labour market. Labour market cannot be independent from the legal regulation of employment; moreover - according to the tendencies - labour market processes basically define the role of labour law. A fundamental...
- Actual issues regarding the enforcement of legal standards of the deed of intimation lodged with the court of law in the romanian court proceedings
The dynamic evolution of the new fundamental law in criminal matters triggered serious challenges in the adaptation process to the new legal realities of the Romanian legal system, as a whole. Within the seeming conclusion of the transition period given by the profound change of the criminal...
- Specific Aspects Of The Offense Of Leaving The Place Of The Accident
The legislator has adopted the respective texts of law to the new social realities once with the repeal of the criminal segment of GEO no. 195/2002 relating to the circulation on public roads, republished and the introduction of this one in the content of the New Criminal Code. The offence of...