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The dignity of the human person represents one of the most obvious and complex concepts which the jurists have been forced to give further consideration in recent years. The complexity of dignity arises from its almost non-legal nature: the dignity represents a fundamental feature of the human being or a postulate of civilization of which law has to take note of. It cannot be conceived that the dignity should be denied and that the legal order should ignore it.As it is an expression of the people’s value, the dignity may be confused with the concept of humanity; “the law sanctions philosophy in this case”. That is why, the concept of dignity should be approached with due caution. The presence of a dignity principle in our legal order is thus indisputable; however, the respect for the human being’s dignity could be presented as a subjective right, as shown in art. 72 par. (1) of the Civil Code. Taking into consideration the uncertainties arisen in the debates about dignity, our approach intends to consider, on theone hand, the conceptual definition of dignity by examining the object and the legal nature of the dignity and on the other hand, the functional opinion which demonstrates which purpose the dignity serves for, in other words, the functions of the dignity and its practical applications.The regulation of the right to dignity in the Civil Code has to be considered as a welcome change.
More...Paradigme în gândirea juridică a şcolii clujene de drept
In the 20th century, the best jurists from Cluj imposed certain value benchmarks, especially in those branches of the law in which the originality of the solutions was on the tops, and these orientations have been benchmarks for the Romanian doctrine and case law several times. The judiciary elite represented one of the dynamic social shares of professional conduct from Cluj, both at the academic level, by those professors who represented the solid school of law, and by its practitioners of first importance, lawyers, judges or prosecutors exercising their office in the inter-war years. The legal doctrine from Cluj was also in the forefront for the Romanian legal doctrine, as it has permanently launched new theories related to different aspects of law appeared in its various stages of specific development of the social relationships and of the economic and political growth of the State. The nucleus of Cluj law school was built and developed under the aegis of the Faculty of Law of the University, as well as of the Cluj Subsidiary of the Romanian Academy, representing umbrella forums, which systematically organized and conducted the scientific research in the legal field. Since 1919, when the Kingdom of Romania decided to establish “The National Superior Dacia University” in Cluj, which became “King Ferdinand I University” later, the Faculty of Law managed to recruit valuable professors who were notable jurists, who distinguished themselves as enthusiastic creators of school and tradition. Belonging to the first generation of the university jurists from Cluj, Traian Pop, Camil Negrea, Ion Cătuneanu, George Sofronie, Romul Boilă, Victor Onişor were part of the elite of trainers of legal school, in the climate of which, during its development stages, certain professionals of law were distinguished, such as Erast Diti Tarangul, Aurelian Ionaşcu, Ioan Albu, Tudor Drăganu, Vladimir Hanga, Ion Deleanu, Liviu Pop. In their capacity as experts in private law and publicists with solid concerns in the field of legal science, they provided that cohesion needed for the development of an important corpus of ideas, concepts, theories, solutions and papers which conferred some conceptual unit to the legal way of thinking from Cluj and inclusive significance of the specific manner of expression of the personality of the Transylvanian jurist in the Romanian public life.The way of thinking and the writings of the jurists from Cluj in the inter-war years were distinguished by a certain Atticism, as many of the outstanding writings of the authors of the law papers were created based upon the idea of measure, balance, system. If the doctrinal orientation at the national level was strongly influenced by the French legal doctrine in civil law, and by the Italian legal doctrine in criminal law, in Ardeal the Austrian legal tradition represented the followed legal pattern, and this aspect may be explained as well, by the influence of the Imperial laws and especially, of the Austrian Civil Code, which continued to apply until 1943 in the Transylvanian region.
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The new Code of Civil Procedure, Law 134/2010 entered into force on 13 February 2013 provides for structuring civil trial in three main phases: the stage of the written, study instance, and debate the merits. The civil process knows two main phases namely, judgment and enforcement, the last one being absent as long as court solution is made voluntarily or by part of that has earned the right of the court waive the force of constraint of the state to obtain the execute benefit gained.The written phrase of the civil process is not a new solution of the Code of Civil Procedure, defining the T0 moment of investing court with a summons to the judge and the moment T1 of the first term of judgment.The writing step represent an administrative activity, where the roles of the judge and the clerk are defining in preparation begins judgment and consequently to establish or exercise the rights and interests of litigants in civil cases to be decided according to the procedure established by law.
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The sale of an inherited property has a long history in the civil law. The civil code from 2009 to 2011 has renewed the relevant provisions and provides a favourable basis for the readmission of certain old theoretical debates with important practical consequences.It shall be examined the specific elements of the disposal of an universality in law occurring between people alive, the available nature of certain rights arising from the mechanisms of the inheritance, such as the right of acceptance of inheritance, the right to request the reduction of the gifts in excess of the freely disposable portion of the estate, the impact of the amendments of the content of the universality subsequent to opening of the inheritance upon effects of its sale agreement, the content of the guarantee due by the seller and its contractual amendments, the consequences of the legal establishment of the ad validitatem authentic form requirement, the taking over of the liability for the debt, the new advertising systems, the guarantees of the payment obligation for the price provided in common law etc.
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Art. 1.203 of the Civil Code regarding the unusual standardized clauses produces unjustified fear among the authors of agreements. The purpose of this study is to give the legal text the due importance and to identify an action intended to avoid the distorted enforcement of the legal text. Starting from the identification of the origin of the legal text (art. 1341 par. 2 of the Italian Civil Code) and after getting through the common sense comparisons with any texts provided by newer laws, this study is intended to actually identify the reasonable limits of the scope of the legal text: circumscribing the standardized clauses in the context of the fundamental mechanism of the offer and acceptance, the interfaces between art. 1.203 of the Civil Code and the legislation of abusive clauses, the formalism of special acceptance of the unusual clauses, the analysis of the legal list provided under art. 1.203 of the Civil Code. The unfriendly formalism of the special acceptance, as well as the restrictive nature of the legal list represents certain indisputable shortcomings of the legal text. A different and more flexible legal solution, the model for which was found in the comparative law, might have been taken into account.
More...Limitele devoluţiunii, excepţiile şi diferenţierea acestora
The examination of the rules of law, on which the grounds for appeal are based, outlines the interrelation between the legal relationship of substantive law and the legal relationship of the contentious law, in the light of the devolution of this remedy. The issues of the legal relationship of substantive law in respect of which the claimant is “contented” shall not represent the subject matter of the legal contentious relationship. On the other hand, it is undisputable that in the appeal proceedings, according to the new Code of civil procedure, the court may settle the case beyond the object of the trial in the first instance, respectively the “discontent” of the claimant, and also, beyond the subject matter of the appeal, respectively the “dissatisfaction” of the appellant. The provisions regarding the judgment of the appeal help us better understand what is subject to the trial – both in first instance, and in the appeal proceedings – and what the court shall settle. The limits of the civil lawsuit shall be provided both by the concrete and actual claims relied upon before the court, in relation to the establishment, execution or termination of the legal relationship of substantive law, and by the criticism of the judgment at first instance. The complainant shall not refer to the court only a claim regarding a legal relationship, but it also submits a legal situation for trial, which is mostly complex. This legal situation submitted for trial corresponds either to several legal relations which are closely interlinked, or to a complex legal relationship in the light of one of its elements (subjects, subject matter) or even to a legal relationship evolving or being changed into a completely different legal relationship (as in case of novation). However, as regards the interrelation between the contentious relationship and the legal relationship of substantive law, the phrase “implicit limits of the appeal” is illustrating and establishes the devolution limits. The implicit limits of appeal are provided by all legal and factual arguments on which the solution provided at first instance is explicitly or implicitly based, as compared to the express limits of the appeal, which are provided by the factual and legal arguments of the judgment at first instance, which is criticized by the appellant.
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The study intended for the fiduciary substitutions proposes an extremely brief examination of a legal institution whose age is lost somewhere in the Roman antiquity and which, in order to reach us, it had to get through tough times, in which the ebullient periods alternated with the restrictions and even interdictions periods. During those periods, the law maker of those times or the doctrinaires concerned with enhancing the value of this legal mechanism did not have any clear view about the actions which had to be taken for attaining a certain purpose: a transgenerational transfer of assets, an acceptable protection of certain persons with various disabilities, who, in the early days, were members of the same family, the need that certain assets should remain in the family property, objectives which have been changed over time. The intended purposes should be without prejudice to certain principles of law formed over time, such as the establishment of a succession order according to law, the full freedom to bequeath by will, the interdiction of any pacts on a future succession, the provision of certain flexible powers to the holders of certain conditional rights, the third parties’ warning about the soluble nature of a certain type of ownership etc. The solutions adopted at a given time have not been able to explain, for instance, for which reason the substitution is characterized by two transfers, but however, both transfers are made from the same estate, as a result of the same will.After we had verified the nature of this institution, first from the main source, namely in the French Civil Code, which the Romanian lawmaker draw from as well, we found that it was no better in the French doctrine and legislation, and that certain famous authors of the French doctrine had contradictory opinions in the matter, and that their opinions have not helped us much in our endeavour. Instead, we found certain fundamental ideas in the Romanian doctrine (Dan Chirică), however, they were insufficient to create a congruent theory on this institution, which shall remain controversial even despite our endeavour to this end. Everything that we set out was only to bring a little light in a matter, which was actually unusable, since, even if we knew the final purpose, we were not aware of the way forward in order to attain it.At present, we know at least the concrete way which, using the theory of the resolutive or suspension condition with discernment, both of them being grafted on a donation or on a will, could determine us to attain the intended purpose.
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‘Szczecin’ was a journal that was coming out in the years 1957–1962 as a direct forerunner of the ‘West-Pomeranian Journal’ (Przegląd Zachodniopomorski). So far the contents of the ‘Szczecin’ Journal, as well as its role in shaping the academic community and in influencing the economic, social and political reality have not been fully analysed. Hence the conclusion that this role is underestimated o even deprecated. In all the issues of ‘Szczecin’ historical questions were covered most extensively. Yet, according to what its editor-in-chief, Henryk Lesiński, had announced the journal was to be open to all the disciplines of social science and humanities. As a result, in addition to the historical questions, the journal also dealt with literary and economic problems. Among the authors there were not only representatives of the Szczecin academic community, but scholars from outside as well. In 1963 ‘Szczecin’ was transformed into the ‘West-Pomeranian Journal’, which has been published to date. The change of the name was caused by practical aspects: the former title suggested a narrow fi eld of interest, limited to the West-Pomeranian capital. After the change the regional character of the journal has been better emphasised.
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In 1964 one of the most important academic journals of the Szczecin academic community, ‘Szczecin’, was transformed into the ‘West-Pomeranian Journal’ (Przegląd Zachodniopomorski); after the change it was still created mainly by historians. Together with the change the journal received more solid fi nancial foundations, a proper background of authors, and it became a strictly academic quarterly. In the years 1963–1985 the journal was run by Henryk Lesiński, in the years 1985–2012 by Tadeusz Białecki. In the editorial staff there were some outstanding personalities of several academic disciplines from Szczecin. The articles published covered the questions of history, Polish studies, sociology, economics, demography, law, culture, architecture, Polish-German relations, West- Pomeranian geography. There were also published monothematic studies, session materials and jubilee issues of outstanding representatives of the academic community. The editors managed to present a signifi cant part of the local academic production in the pages of the journal and to infl uence the development of the local academic community. There were articles from other academic centres in Poland and in the German Democratic Republic. In the 1960s and 1970s the contents of the journal show that its significant part did not deal with the humanities subjects; there were many materials from the sphere of economy, agricultural and marine sciences, the favourite guilds of the State and the Party. However, in the 1980s those spheres gradually disappeared from the pages of the journal. The Szczecin scholars who wrote for the journal represented the local universities and other humanistic institutions. In the materials concerning history all the historical epochs were dealt with. The journal was the brainchild of the People’s Republic of Poland and the scientifi c policy of the Polish United Workers’ Party (PZPR). With the passing of time, endeavours of the founders and editors and the local communities in three generations converted the journal into an important forum to elevate the successive young generations of humanists. On the other hand, in the fi rst quarter of the century of its existence, or a bit longer, the contents of the ‘West-Pomeranian Journal’ refl ected the German occupation experiences and the political views of the founders and their attitude of admiration towards the socialist regime and their acceptance of the historic alliance with the socialist Germany. They claimed that there was no alternative for what had happened in Poland after 1944/45. They rendered considerable services to create successive generations of Polish intelligentsia in the Polish West. If the journal is analysed from the standpoint of today, if the endeavours of its founders and editors and the whole academic community are taken into consideration, if it is seen as the work of three generations, it is becoming obvious that the journal has been an important forum to elevate the successive young generations of humanists. In the sphere of the humanities the questions most frequently treated have been the ones taken from history, sociology, the history of art and the history of architecture. As far as history is concerned, it has been the Szczecin community that contributed most to the journal; in the pages of the journal new historical epochs have appeared, the problems have been treated more precisely, the methodological tools have become more sophisticated; these facts prove that the academic community of Szczecin and Western Pomerania has made progress and has consolidated.
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After having analysed almost 50 annual bound volumes of the ‘West-Pomeranian Journal’ (Przegląd Zachodniopomorski), undoubtedly the most important academic journal of Western Pomerania, it is justifi ed to claim that problems of political science were always present in its pages. Yet it is necessary to emphasise that the group of political scientists from the Szczecin centre was not numerous before the end of the 1980s, and a signifcant part of them had come from the historians’ milieu. What makes things more diffi cult for the researcher are the circumstances of the epoch that was closed by the 1989 turning point. The natural restrictions of the regime had been reflected in the choice of problems, and – also – in the value of the texts published. On the other hand, in the new situation there appeared an enormous number of subjects that must be analysed again or for the fi rst time. In the research results that have been published, both regional and nation-wide, we can find many interdisciplinary texts from the sphere of sociology, history and political science. The thorough analysis of the contents of the ‘West-Pomeranian Journal’ within the space of the last 50 years supports the conclusion that political science has been present in almost all its issues. It would be difficult to form a general opinion on the value of those materials. However, it is true that before 1989, in spite of the fact that there were a lot of restrictions resulting from the existing regime, many articles then published avoided a primitive propaganda. Naturally, there were texts dominated by ideology. But after 1989 the texts have become typical of political science research, i.e. concerning political parties and systems and international relations.
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Tadeusz Biaecki regional achievements are extensive. They include the whole present day Western Pomerania geographically, and chronologically from the early Middle Ages up to the present moment, with the exception of modern history. A special place in Tadeusz Białecki’s academic research was occupied by Chojna, with which he had been bound emotionally since 1953. Working in the Szczecin Library he looked after the librarians from the Chojna District. He began his academic career from the demography of that District. Tadeusz Białecki’s features as a scholar-regionalist are focused in his ‘Chojna’ achievements. Not only did he do town research, but also he inspired it; for example, he was the editor of the Þ rst Polish-language monograph of the Chojna District. Professor Białecki was a keen photographer as well; in his archives there is an impressive collection of photographs of Western Pomerania starting from the 1950s. His photographic passion was the impulse to produce the Þ rst photographic album of the Chojna region. The regional activity of Professor Tadeusz Białecki does not cease in spite of his advanced age. He publishes his memoirs in the pages of ‘Chojna Yearbook’ (Rocznik Chojeski), and he participates in the discussion on creating a Chojna Museum. The Chojna fascinations are still vivid in his memory, so in 2013 ‘Chojna Yearbook’ honoured Professor Biaecki with an occasional interview with him.
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The article presents part of the academic achievements of Professor Tadeusz Białecki ,a West-Pomeranian scholar, on the occasion of his 80th birthday anniversary. In his academic achievements a prominent place is occupied by onomastic dictionaries and research projects concerning the old and present-day Szczecin. Since the end of the 1940s Tadeusz Białecki had got gradually interested in those problems living in Western Pomerania, discovering it, becoming soaked in its charms and history, which he was always eager to know. After settling in Szczecin (1959) he could develop his youthful passion and start his academic career (1962). His first texts appeared in print in 1970; they dealt with the toponymy of Szczecin after 1945. At a later stage the ‘Dictionary of the Contemporary Geographical Names of Western Pomerania’ (Słownik współczesnych nazw geograficznych Pomorza Zachodniego z nazwami przejściowymi z lat 1945–1948, Szczecin 2002, pp. 414, with the dominance of local official names) was edited and published in order to officially disseminate the proper names introduced in Western Pomerania (in the former districts of the historical New March: Strzelce, Gorzów, Choszczno, Myślibórz, Chojna, Drawsko, Wałcz, Świdwin). At the same time in the ‘Dictionary of Physiographic Names of Western Pomerania’ (Słownik nazw fizjograficznych Pomorza Zachodniego, Szczecin 2001, pp. 839) Professor Białecki gathered an enormous index of geographical names for Pomerania, the German ones (used until 1945) and the Polish ones either introduced in the 1940s by administrative decisions or used spontaneously by people and institutions. At the end of the 1990s Professor Białecki concentrated all his efforts on the editorial work of his opus magnum, ‘Szczecin Encyclopaedia’ (Encyklopedia Szczecina, 1999 –2000), which covered the Great Szczecin within its 1997 borders. The idea had already been conceived in the 1970s. The Encyclopaedia renders the current state of knowledge about the City and its distinguished late inhabitants. Although Professor Białecki won over 255 co-workers to create the first volume, and 300 to create the second one, he was aware of threats and shortcomings of his masterpiece, as there were numerous problems that required a very specialized insight. His endeavors to win over more authors resulted in three supplementary volumes published in the years 2003–2010. The supplementary volumes included new entries, supplements and rectification of errors. At the same time, the Encyclopaedia was expanded by entries concerning places situated in the districts adjacent to Szczecin at the request of their inhabitants who complained of their ignorance of their local history; that expansion was accepted by the academic community.
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Since the end of the 1950s Tadeusz Biaecki has shown an interest in memoirs concerning the post-war Western Pomerania. Still as a worker of the Regional and Municipal Library in Szczecin he initiated a cycle of reminiscences of librarians; yet, he really took to memoir literature in the mid-1960s when he gathered and sorted out an extensive output of numerous memoirs competitions and cycles. A special place in Professor’s Białecki’s social and research activities is occupied by the competition called the ‘History of Szczecin Families in the 20th Century’, with which he has been connected since the beginning, i.e. since 1969. The reminiscences collected for years, which in many cases appeared in print, are a unique source to get to know the history of Western Pomerania better. In the past few years Tadeusz Biaecki himself has been publishing his own memoirs, which depict the life and career of one of the most famous and distinguished Szczecin historians in a detailed and colourful way.
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The article is an analysis of Professor Tadeusz Białecki’s cartographic works: plans, maps and iconographic works made with the use of artistic and photographic techniques, presenting the cultural and natural countryside of Pomerania within the administrative borders fixed after 1945. Therefore, the territory of the New March has been partially included in the article. The article has been arranged according to the chronology of Professor Białecki’s publications. The analysis comprises books, articles, encyclopaedic entries, and reviews. This selection has been made on the basis of bibliographical list – compiled by Maria Frankel – of the Professor’s works written before 2003, supplemented with a bibliographical survey of his works published in the years 2004–2012. At the beginning the article explains why Professor Białecki took up producing pictorial works (pictorial works were the result of his interests in photography and sightseeing) and assesses the value of that part of his achievements as a historian. Next, Professor Białecki’s individual publications were analysed in order to find their formal and material connections. Pictorial sources played various roles in Professor Białecki’s publications; usually, they fulfilled an auxiliary function: firstly, enriching illustrated texts; secondly, together with the written texts they created the full narrative; thirdly, individual works, such as maps of Szczecin, became themselves objects of analysis; and finally, sets of works created a narrative tissue, to which the written texts were explicatory commentaries. An example of the last function were the albums, and first of all the monograph concerning the sights of Szczecin. At the end of the article it is underlined that pictorial sources have been used by Professor Białecki throughout his activity as a historian and populariser of the Pomeranian history and region.
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For many years of his academic career Professor Tadeusz Białecki has frequently dealt with the problems of the medieval Western Pomerania. Still as a student of the Warsaw University and shortly after graduating he investigated the subject of fortified towns (gords) in that region. Later, especially in the years 1958–1966, he wrote a few articles (published in the ‘West-Pomeranian Materials’ and in the ‘West-Pomeranian Journal’) on the medieval onomastics and settlement in the vicinity of Szczecin and Pyrzyce, and on the settlement base of Koszalin in the 13th century, when it was located. For many years Professor Białecki concentrated his attention on the history of the Western Slavdom, especially the Slavic past of Połabie, Western Pomerania and Szczecin. Another keynote (also treated in a popularising way) were the medieval monuments of Stargard and in its vicinity and the ones of Chojna, and the heraldry of West Pomeranian towns. In spite of his involvement in the investigations into the demographic changes of Western Pomerania after WW2 and into the displacement of the Germans before the 1950s, questions concerning the Middle Ages appeared from time to time in Professor Białecki’s works (especially at the end of 1980s and afterwards) in the form of articles and monographs concerning Szczecin and the changes in onomastics and demography within the Szczecin region and in other towns and in the whole area of Western Pomerania. For many years Professor Białecki’s teaching activity (first as an independent investigator at the History Institute of the Higher School of Pedagogy, and since 1985 at the Szczecin University) was connected with medieval questions. His interest in the Middle Ages and especially the history of Western Pomerania resulted in several monographs of towns or West-Pomeranian subregions (some of them written by Professor Białecki and some edited by him); in most cases they dealt with the post-war times but somehow they referred to the times of the Duchy of Pomerania. Some medieval threads may also be found in the commentaries to the Polish edition of Thomas Kantzow’s Pomerania, published together with E. Rymar and other authors. In spite of his enormous knowledge of the Middle Ages, his keen interest in that epoch, and in spite of being Professor Aleksander Gieysztor’s disciple, Tadeusz Białecki has never become a classical medievalist. Although the Middle Ages are visible in his works, they have never become the main thread of his academic production.
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Tadeusz Białecki was employed in the West-Pomeranian Institute when that institution had already established cooperation with scientifi c institutions of the German Democratic Republic (GDR). When he became Director of the Institute those contacts strengthened and turned into an important element of scientifi c works undertaken by the Szczecin academic community. The cooperation consisted in undertaking common research topics in the sphere of history, sociology, economics, culture. The height of that cooperation was in the 1970s, and resulted in many publications and numerous articles published in the Institute’s ‘West-Pomeranian Journal (Przegląd Zachodniopomorski). The topics undertaken were interdisciplinary in character, contributing to the pioneer research track at a nationwide scale. However, the proportion between the informative value and the propagandist element of those publications and their overall value still need analysing. The texts on the GDR read today are visibly full of political factors and in accord with the political correctness of the time, which distorted the presented image so much that those texts are just testimony to the times they were written, and at present they should be interpreted accordingly. On the other hand, it should be remembered that they constituted a basis for cooperation thanks to which it was possible to get access to the GDR’s archives, and in many cases without it writing about the history of Western Pomerania would hardly have been possible for Polish authors.
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