Union of Jurist of Romania Law Review
- Union of Jurist of Romania
- Publication date:
- Nbr. X Special Issue II, December 2019
- Nbr. X Special Issue I, December 2019
- Nbr. X-2, July 2019
- Nbr. IX-1, July 2019
- Nbr. VIII-2, July 2018
- Nbr. VIII-1, January 2018
- Nbr. VII-Special-1, December 2017
- Nbr. VII-2, July 2017
- Nbr. VII-Special-2, March 2017
- Nbr. VII-1, January 2017
- Nbr. VI-Special, December 2016
- Nbr. VI-2, July 2016
- Nbr. VI-1, January 2016
- Nbr. V-2, July 2015
- Nbr. V-1, January 2015
- Nbr. 2-2014, December 2014
- Nbr. 1-2014, January 2014
- Nbr. 2-2013, December 2013
- Nbr. 1-2013, January 2013
- Nbr. 4-2012, October 2012
- The Lisbon treaty and the risks of noncoordination of economic policies in the E.U.
Article 5 of the Treaty on the Functioning of the European Union (T.F.E.U.) states: "1. Member States coordinate their economic policies within the Union. To this end, the Council adopts the measures, including the broad guidelines of these policies. Special provisions apply to Member States whose currency is the Euro. 2. The Union shall take measures to coordinate the employment policies of the Member States, in particular by defining the guidelines for those policies. 3. The Union may take initiatives to coordinate the social policies of the Member States.
- The possibility of a common european land registry within the current legal framework
The purpose of this paper is to explore the possibility of implementing a common European Land Registry from a legal point of view. Although the European Union has yet to succeed in implementing a sole land registry, it has made clear and certain steps in this direction. Through platforms like EULIS or common vision agreements signed with associations like ELRA, the European Union is working towards the standardization of the way in which its member states handle real estate registration. In order to fully understand the legal implications of, and how achievable a standard European Land Registry is, it was deemed necessary to make an analysis based upon the comparison between the different legal systems found in the European Union, with focus upon the concept of property transmission. This comparison was chosen because, on the aforementioned principles, all EU member countries have developed their own legal instruments and institutions with the sole aim of supervising real estate registration. By focusing on the points of the land registration process, which involve principles of law, like property transmission, good faith protection or, third party effects, and the differences between them in different EU countries, this research has concluded that, despite the steps in the right direction, the implementation of a common European Land Registry at least from a legal point of view, is not yet a viable option.
- About vacant inheritance
An inheritance is considered to be vacant when there are no legal or testamentary heirs or, in case such heirs exist, they are not entitled to inherit the entire successor mass. Vacant inheritances become the property of the village or county where the goods are located at the time of the inheritance and become part of the county’s private property. The procedure by which an inheritance becomes vacant begins by request of any interested party and is finalized once the public notary issues a certificate of vacant inheritance. In case of international inheritances, within the limits of the law which applies, if there is no legal heir for the goods of the successor mass and no legal heirs, the law which applies must not impair on the law of another member state or an entity which is entitled to inherit those goods, provided the creditors are still able to request the payment of their debts from the successor mass. The current paper aims to discuss theoretical and practical aspects regarding vacant inheritances in the context of the unification of European law. From a theoretical point of view, we believe it is necessary for the lawmaker to intervene in order to regulate the title by which the state inherits, because it entails significant procedural meanings, as previously shown. From a practical point of view, the solution to a vacant inheritance is a difficult and expensive procedure. It entails attention and responsibility from the public notary, as, by issuing a certificate of vacant inheritance, certain heirs can be abusively removed from succession, thus being forced to file a complaint in court in order to valorize their rights.
- Brief analysis of the european union's directives in the area of water protection and the level of their national implementation
The present study starts from the fact that, at present, the water pollution is a real problem and the efforts unfolded for its prevention or for the removal of its negative effects when it occurred, must be supported, continuous requiring both a regional and an international cooperation. The action performed by the European Union in the area of water protection are reflected in different directives which have as main objectives the insurance of the drinking-water supply, the proper management of water resources, the battle against drought and floods, the battle against water pollution. The rational protection and management of water resources, as well as the insurance of their quality is an important part of the environmental policy of the European Union. Given these aspects, the current paper presents the main legislative interventions of the European Union in the area of water protection. It also aims to show to which extent Romania has managed to implement the EU legislation in this area. As a conclusion, given all efforts laid by the Member States, almost half of the European hydric systems have failed to reach the legislative objectives established by the Union. Starting from the reality that water is constantly under the threat of a wide variety of pressures exposing the sweet water ecosystems and the associated forms caused by humans and pollution, continuing with the fact that the use of fields, water intake, climatic changes represent changes modifying the natural debit of water systems, it is necessary that the fight against these factors be continuous and pointed in the same direction as a national, communitarian and international level, the divergences not being justified in this area.
- Brief considerations as to the joint exercise of parental authority after divorce
The purpose of this study is to determine whether changes in the legislation on the exercise of parental authority brought positive changes in the lives of children whose parents have divorced. The methods used, i.e. comparison and observation, support the scientific approach in order to draw conclusions on the achievement of the ultimate aim of both legislative changes and study, respectively ensuring the best interests of the child. The rule of joint exercise of parental authority for children after the parents' divorce was introduced in the Romanian legal system at the time of the entry into force of the new Civil Code, respectively in 2011, taking also into account the fact that this rule applies in many other states of the European Union. The best interests of the minor require maintaining the child in a balanced family environment, in the presence of both parents, since the risk of breaking the child's spiritual balance is very high along with his or her giving to one of the two parents. Unfortunately, in most cases where the divorce or separation of parents occurs, the access of the non-resident parent to his/her own child becomes difficult to achieve, in which case it is useful to organize a program of personal relations meant to ensure the continuity of the non-resident parent's presence in the child's life. At this moment it is required the experience of the judge, who, taking into account all the aspects specific to each case, to find the best solution for ensuring the respect of the best interests of the child. The exercise of child joint custody may be beneficial for the child, sometimes not, depending on the attitude of each parent, and the judge will have to choose the best solution for each child, each case being different from the other case. And the parents should be advised and trained by specialized personnel so as to take upon themselves learnedly the new situations that they will face during the joint exercise of parental authority, in order to achieve the best interest of the child.
- European citizens' initiative: new rules, new trend?
This article will focus on the European citizens' Initiatives (ECIs) reform which will enter into force on 1 January 2019. Starting with an analysis of EU legal sources, this article will first highlight the rising interest in the most prominent participatory democratic instrument at the EU level; in a second step, it will present the actual outcomes of ECIs launched so far, highlighting some criticisms regarding the functioning of the process. In the conclusion, it will illustrate the recent reform introduced by Regulation 2019/788, questioning whether the new changes will enhance the participation of Civil Society and citizens in the EU integration process as a possible remedy to bridge the gap between supranational governance and citizens.
- The dispute over invoking abusive clauses inserated in banking contracts in the trial of a contestation of the execution - alignment to european trends in the matter
The number of cases concerning the abusive clauses inserted in banking contracts, trialed in front of the national courts, is a considerable one. It seems like the compliance of the national regulations with the provisions of Directive 93/13 / EEC on 5 April 1993 on unfair terms in consumer contracts, is a difficult process. The purpose of the present study is to observe the current state of the alignment of the national legislation and jurisprudence to the European tendencies in the matter. In particular, we are interested in the admissibility of invoking abusive clauses in the process of a contestation of an execution, since the national case law is not unitary in this regard. Even in theory, opinions are divided. On June 26, 2019, the European Court of Justice expressed its opinion on this matter, in the cause C-407/18, the case of Ales Kuhar, Jožef Kuhar v Addiko Bank d.d. At the end of the study, we aim to point out the main directions set at European level that must be followed by the national legislation and case law of a Member State.
- Dynamics and tools of ?upward convergence' in the eu social policy: assessing the european states' performance under the european pillar of social rights
The present article proposes an analysis of the various ‘facets’ of convergence with a special focus on the concept of ‘upward convergence’ which was set in place to ensure a better coordination of the EU and its members in the field of social policy. Ensuring a stronger socioeconomic convergence to achieve better living standards for the European citizens and reduce inequalities, particularly after the economic crisis that has shaken Europe, has become a top priority for the EU. In order to realize this objective, the EU uses a variety of tools and mechanisms, both legal and financial. One of the newest and highly debated legal instruments created by the EU is the European Pillar of Social Rights. The article offers a comparative analysis of the levels of performance as well as of the concrete results obtained by various governments in their efforts to implement the objectives of EU social policy. The analysis starts from the assumption that the European states have different levels of economic development and resilience, a fact that makes even more difficult a strong convergence and synchronicity in the implementation of these measures. Our research intends to call attention to the fact that EU’s legislation and policies have a positive impact on the performance of the governments in the socioeconomic field. The methods used are both qualitative and quantitative, consisting of an evaluation and a brief comparative study based on the scientific literature in the field, but also of the presentation of data and indicators that clearly show the levels of performance and the achievements of different governments. The main general conclusion that may be formulated is that on the one hand, the EU is making efforts at establishing all the necessary instruments to enhance convergence. On the other hand, between countries there are both convergent and divergent evolutions and countries may be grouped according to the level(s) of their accomplishments (which differ from case to case) which makes it obvious that some of them do need more time and (harder) work to reach the established targets.
- About the res judicata authority of the reorganization plan and/or of the measures taken by the judiciary administrator or liquidator within the frame of the insolvency procedure
This paper examines the legal force of various procedural acts delivered within the frame of the insolvency procedure as regulated by Law 85/2014. The study aims to assert the res judicata effects of the syndic judge judgments and to find out if the related procedural acts approved or scrutinized by the syndic judge or issued by the insolvency administrator or liquidator during the insolvency procedure enjoy such effects, concluding that, while not all these acts enjoy res judicata, all of them have binding legal force upon all participants to the procedure and even upon third parties.
- International protection in the european union
This paper concentrates on a few aspects regarding the issues that arose after the massive waves of immigrants' who are in Europe. In this context, the purpose of the paper is to offer a perspective about what is international protection and asks the question: what rights do persons who may be in need of international protection have? It is obvious that the people in need of international protection do not have basic human rights and physical security guaranteed in their home countries and they have been forced to escape from the risk of persecution, inhuman or degrading treatment or other serious human rights violations. In this regard, we will analyze the acquis communautaire that the EU asylum organizations provide for forms of international protection and the corresponding procedure of international protection. We will conclude, stressing that even though the right to asylum is recognized and convergent at the European level and the roots are in the Geneva Convention, the Charter of Fundamental Rights of the EU, and other international and European legal instruments, in reality nowadays proves that there is a divergent tendency in applying the legal aspects to the persons who need international protection.
- L'engagement unilatéral
L’étude se propose l’analyse du potentiel créateur d’obligations juridiques de l’engagement unilatéral. Variante de l’acte de formation unilatérale, l’engagement unilatéral est défini comme la manifestation unilatérale de volonté faite en vue de la création d’une obligation juridique contre son...
- Trends and patterns in preliminary references in courts of Romania. Issues related to the charter of fundamental rights of the European Union and the European convention on human rights
The case-law of the courts of Romania reveals significant disparities concerning interpretation and application of the two main European sources in the field of human rights - the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. That is the reason...
- Specific features of the settlement of disputes among states within international economic organizations. Legal means of peaceful settlement of disputes
The study is focused on a very important and sensitive matter - the one which concerns the disputes among states. The research begins with the definition of the international dispute in order to indicate the framework of the analysis and indicates the main characteristics of it. The study continues ...
- National Security Exceptions in the WTO - A Carte Blanche for Protectionism? Part I - Introduction, Negotiating history of Art. XXI of GATT, Russia - Traffic in Transit Panel`s Report
The security exception enacted in Art. XXI of the General Agreement on Tariffs and Trade has been contentious over the years. Parties have either argued that the security exception has a completely ‘self-judging’ nature, or that it allowed for a limited review by the panels and the Appellate Body,...
- Patrimonies by appropriation and the personalist theory of patrimony
This study aims to determine the legal nature and characteristics of patrimonies by appropriation and the impact of such important matters regarding the legal regime of patrimonies by appropriation on the subjectivist (or personalist), classical theory of patrimony. We start from the idea that the...
- A century of romanian arbitration: historical milestones, from tradition to modernity
This paper presents the evolution of Romanian arbitration, proving its effort and orientation towards efficiency in order to meet the users’ needs and to adapt to the challenges of a changing world. In the seventeenth and eighteenth centuries, when the whole of Europe was struggling with the...
- The crime of genocide
This paper is a comparative analysis of the crime of genocide in relation with other similar crimes, for example, some crimes against the person (homicide, bodily harm, illegal deprivation of liberty), the so-called “terrorist attacks” or crimes against humanity. Such an analysis underlines several ...
- Constitutional review or judicial activism?
Constitutional courts have come to play an important role in the transformative processes of their respective states and societies. While legal scholarship is divided on the issue of the beneficial impact that judicial activism of constitutional judges may have on a democratic transition, there is...
- Lex mercatoria, soft law and a closer aproach of unidroit principles
Lex mercatoria or trade usages continue to be the core of the international legislation and principles. Soft law is a new variation of lex mercatoria with certain particularities. Soft law is an instrument usually considered as non-binding but nevertheless with much potential for morphing into "...
- Local Governments in the System of Separation of Powers. The Executive Function in the Field of Local Public Affairs
The paper is focused on the principle of separation of powers, especially examined the role of local self-governments in the system of division of powers. It gives a brief description on the dogmatic approach of the principle of powers based on the concept of Montesquieu, and Benjamin Constant who...