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.
- Criminological landmarks for explaining causes of crime
The issue of crime stands out to a level ever more debated in the area of current social context. Studying crime involves studying criminals, these two being inextricably linked. We are committed to study the criminal as an individual, so it is impossible to completely cleave the image of the individual from the social picture which is attached to and which marks his existence and evolution. The attention to this scourge which spreads to all levels of society, both at the individual and group of individuals, should be delimited by reference to crime aetiology by highlighting the causes and criminological factors, both individual and social.
- 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.
- 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.
- 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.
- 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.
- The right to good administration - is the constitutional regulation necessary?
The constitutional revision from 2003 enriched the patrimony of the fundamental rights and freedoms of Romanian citizens with three such rights and freedoms: the right to a healthy environment, economic freedom and access to culture. More than 16 years after this revision, but also as a member state of the European Union, we consider as an opportunity and necessity, at the same time, a new revision of our fundamental law, a consistent one at this moment, which should take into consideration the consecration of other rights, even by designing the necessary constitutional framework for ensuring and respecting a good administration. Analysing the constitutional provisions of other states, as well as those of the European level, the relevant doctrine and jurisprudence, using research methods such as multidisciplinary, comparative, sociological, empirical or systemic, it will be possible for us to conclude that good administration is one of those indefinite or determinable legal concepts. Being such a concept it is necessary to identify elements that allow us to configure it, elements that we should find in a unitary text in an article of our fundamental law, and through which the right to good administration would be enshrined. Therefore, we appreciate that in a state where the public administration, exercising of its functions and attributions, also had delicate moments in ensuring a good and efficient administration, the consecration of the right to good administration, by exhaustively capturing, as far as possible, the elements the definers of the concept of good administration, is a natural consequence of the constitutional recognition of the rule of law.
- Aspects of personal data processing by romanian civil courts acting in their judicial capacity
Although the data protection supervisory authorities are not competent to supervise processing operations of courts when acting in their judicial capacity, the General Data Protection Regulation also applies to the activities of courts and other judicial authorities which must ensure compliance with the rules of this regulation. Therefore this paper aims to explore the processing performed by civil courts in their judicial capacity, without overlooking the impact of the internet age on the publication of personal data from pending cases and judgments. To this end we’ll analyse the provisions of Regulation (EU) 2016/679 and the national legal framework regarding the processing of data by the courts, without overlooking a recent trend in dealing with processing operations performed by the Court of Justice of the European Union (CJEU). At first glance it seems that our civil courts were left to their own devices as to data protection since the Romanian national supervisory authority is not competent to supervise processing operations of courts acting in their judicial capacity and the Romanian legislator did not entrust this mission to specific bodies within our judicial system. However despite the absence of a right to lodge a complaint with a supervisory authority or to an effective judicial remedy against a supervisory authority, the data subjects - plaintiffs and defendants - may resort to the right to an effective judicial remedy against the controller for the protection of their personal data processed by a civil court. Since the right to the protection of personal data is not an absolute right and it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality, not always will prevail the rights of the data subject, or, better said, they will not be able to prevail before the balance tilts - sooner or later - in favour of the data subject.
- Jurisprudence in ancient rome
Among the formal sources of law, jurisprudence occupies a central position, as, by its form and content, it brought expression to a system of law which would become the fundament of law in posthumous ages, thus creating a treasure of ancient civilizations in regard to universal cultural and scientific patrimony. Initially, jurisprudence was achieved by empirical means, by the so-called case interpretation which was unable to provide the necessary background in order to elaborate universal principles of law or systematized interpretation which would represent the fundament of future legal construction. In the classical age, jurisprudence will reach its highest level, thus giving new dimension to the greatness and glory of Roman law, as legal advisers of those times will phrase principles and rules of law by combining different legal cases; thus, they prove to be great exegetes with a real sense of enforcing laws, thus, the regulations of ius civiliae become abstract legal provisions. This is the reason why the most interesting source of law of this age is responsa prudentium, namely the consultations given by the legal advisers; during this age, these consultations are no longer simple opinions which do not oblige the judge, but special concessions form the emperor, thus becoming mandatory regulations. Although, in present times, this possibility of the judge to rule by considering the opinion of a legal adviser, which might tilt the balance of justice one way or another is no longer in effect, the legal advisers still maintain their influence over the rulings of courts even if by indirect means, as is the case of appeal in the interest of law.
- 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...
- The Romanian criminal law from the great union to the present day
In the present study, we have investigated the provisions of the first three Romanian Criminal Codes that were released in the modern Romanian era. At the onset of this scientific approach, we have made an overview of the Criminal Code of 1864, with direct reference to the doctrine and...
- 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...
- Right to a proper climate in the system of the right to an environment and the equation of fundamental human rights
The affirmation of the process of climate change and their irreversible consequences generates dangers and major negative outcomes to the exercise of the fundamental human rights. Human civilization is tightly linked to climate stability, conclusion confirmed by the reality that the last 10.000-12.0...
- General overview on material-functional conception of the state administration
The science of administrative law has accepted the view that the expression "administration" has two basic meanings: firstly, according to one of them, the term administration implies a certain circle of entities/executors (bodies or organisations), as a rule, within the state apparatus,...
- General considerations regarding the historic evolution of roman law
The historic evolution or Roman law was in a determination relation with the factors which configure law, especially the social-political ones or the economical ones, but also those which pertain to the natural background in which Roman society evolved, thus passing from the citadel-state to the “po...
- 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...
- Environmental crime in the EU: Is there a need for further harmonisation or for new enforcement tools?
Criminal approach of the environmental issues is both an innovative and a necessary evolution of a much wider field of regulation, at an international, European, and national level; hence, it is but part of the legal action taken by societies, in order to assess and partly solve the environmental...
- 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 "...