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FUNDAMENTAL ELEMENTS OF A THEORY OF HUMAN RIGHTS

Author(s): Nicolae Voiculescu,Maria Beatrice Berna / Language(s): English Issue: XXI/2022

The human rights are a legal product, but the legal character does not exclusively monopolize the theory and practice of human rights. On the same line of ideas, we can affirm without a doubt that human rights are a cultural, value, ideological, philosophical and ultimately social product. Combined, these observations are the support points of the following conceptualization: through their suis generis character, human rights determine a meta theory that combines the legal with the social and its derivatives (philosophical, psychological, religious, cultural).

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THE MODIFICATION AND COMPLETION OF SOME NORMATIVE ACTS IN THE FIELD OF CONSUMER PROTECTION ON UNFAIR CLAUSES IN CONTRACTS CONCLUDED BETWEEN PROFESSIONALS AND CONSUMERS

Author(s): Mihaela Georgiana Iliescu / Language(s): English Issue: XXI/2022

This study concerns the new amendments to Law no. 193/200 regarding the unfair clauses in the contracts concluded between professionals and consumers by Romanian Government's Emergency Ordinance (GEO) no. 58/2022 for the modification and completion of some normative acts in the field of consumer protection. The analysis of these changes highlights the fact that the solutions provided by the Romanian legislator through the new normative act represent a legislative consecration of the principles derived from the vast jurisprudence of the Court of Justice of the European Union in the field of unfair clauses.

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FREEDOM OF EXPRESSION AND THE RIGHT TO PRIVATE LIFE. DEFENSE OF PERSONAL NON PATRIMONIAL RIGHTS

Author(s): Petruţa-Elena Ispas / Language(s): English Issue: XXI/2022

The provisions of the Romanian Civil Code establish the legal means of protection of non patrimonial personal rights or the rights of personality of civil law subjects. In this paper we will briefly analyze the jurisprudence of the European Court of Human Rights and at the same time we will briefly present the legal provisions of national law. Likewise, we will do an examination of the jurisprudence handed down by the courts in order to provide a more accurate picture of rights of the personality.

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INCOMPATIBILITY OF THE JUDGE. "THE FRIEND" FROM FACEBOOK. A NEW APPROACH OF INCOMPATIBILITY IN THE ROMANIAN CODE OF CIVIL PROCEDURE?

Author(s): Liliana Cătălina Alexe / Language(s): English Issue: XXI/2022

Analyzed so many times under the authority of procedural rules (those from the provisions of art. 41 paragraph 1 and art. 42 paragraph 1 points 1 13 of the Romanian Code of Civil Procedure), the incompatibility of the judge from the composition of the trial panel can be (or not) put in a new reality of our days the connection from the online environment? Despite the question (what is the role of introduction and, why not, that of defining the theme of the present article) the research aims to indicate the situations (some, obviously, in fact) in which the judge from the composition of the panel would (could) be in a situation of incompatibility that could raise doubts about his impartiality, when, alongside the party or the party's representative, he is part of the same social network and if this case should be included in point 13 of art. 42 para. 1 of the Code. Starting from the imperative "tone" of the rules of procedure and in the context of the legislator of the Code that expressly regulated the case of incompatibility from point 13, this would appear to be the correct framing of the situation containing the hypothesis under discussion.

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BRIEF CONSIDERATIONS ON VALIDATION OF GARNISHMENT

Author(s): Andreea Gabriela(Cadar) Răducanu / Language(s): English Issue: XXI/2022

Garnishment is one of the methods of enforcement provided by the Romanian Code of Civil Procedure. The subject of garnishment may be "amounts of money, securities or other intangible assets traceable due to the debtor or held in his name by a third person or which the latter will owe him in the future, based on existing legal relationships. Also in accordance with Article 733. paragraph 1 may also be seized the movable bodily property of the debtor held by a third party on his behalf. 781 C.P.C. Object of attachment).

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CONSIDERATIONS ON THE TRANSACTION AGREEMENT AS AN ALTERNATIVE DISPUTE RESOLUTION WITHIN THE PROFESSIONAL TRADERS ACTIVITY

Author(s): Florin Constantinescu / Language(s): English Issue: XXI/2022

Currently, the transaction agreement seems to have valences not sufficiently exploited by the professional traders, the significance of the transaction as a modality of settling dis¬putes before the Courts being widely known. Thus, many situations can arise in the econo¬mic activity that can generate blockages or present a real risk of litigation. Through negotiations conducted in good faith, signing a transaction agreement can be an effective alternative way to resolve inherent disputes and move forward. Of course, if the parties request the intervention of a mediator, this is possible, according to the law, but signing a transaction agreement can be a real alternative from the perspective of the celerity required by the commercial activity. This article aims to highlight the real benefits of the transaction agreement as an extrajudicial means of amicable settlement of disputes, so with an emphasis on the intention of the parties to prevent a litigation, with proposals de lege ferenda, a fact that can be useful to the business professionals and legal professionals.

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BRIEF CONSIDERATIONS ON HISTORICAL DEVELOPMENT OF REAL ESTATE ADVERTISING SYSTEMS IN ROMANIA

Author(s): Elena-Claudia Dumitrache / Language(s): English Issue: XXI/2022

The real estate advertising system creates the legal certainty of the way of establishing, transmitting and extinguishing the real estate rights, of the legal acts and facts related to the real estate, by registering them in the land register, thus facilitating the possibility for interested persons to become aware of the legal situation of real estate, in order to protect one's own interests with a profound legal character, thus determining a specific rigor, based on clear and certain rules, erga omnes opposable, which excludes subsequent interpretations, evictions and/or legal actions.

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SOCIAL DIALOGUE AND THE PRINCIPLE OF TRIPARTISM

Author(s): Costel Neculai Dunava / Language(s): English Issue: XXI/2022

The social market economy is based on a balanced relationship between labour and capital, a relationship maintained thanks to a complex and comprehensive regulatory system, implemented by a multitude of institutions with a mediating function between the partners of social dialogue. In the European economic area, social peace is closely linked to the effectiveness of tripartite dialogue, which includes employers, trade unions and public authorities.

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GOOD DELIVERY OF JUSTICE. JUDICIAL ERROR

Author(s): Delia Mihaela Marinescu / Language(s): English Issue: XXI/2022

The good administration of justice is an essential element of the functioning of any state of law, representing a national security objective through the prism of the implications and dysfunctions it can create at the level of society, but also a fundamental pillar in ensuring an act of justice in accordance with the law. That is why the State has the primary obligation to organize the activity of judicial bodies, being liable in the event of a violation of this mission, considering the fact that the errors produced in the act of justice produce serious effects on the fundamental rights and freedoms of citizens, including material damages and morals. The foundation of the State's liability for judicial errors is free access to the court and the right to a fair trial, with national legislation effectively guaranteeing a high quality of the judicial act.

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THE ROLE OF LANGUAGE IN EVOLUTION OF HUMAN COMMUNITIES. THE PARTICULAR CASE OF THE REPUBLIC OF MOLDOVA

Author(s): Mihaela Săftoiu / Language(s): English Issue: XXI/2022

The study analyzes, based on doctrinal approaches and national legislation, the importance of language in the evolution in time of man as a biological entity, from the perspective of its attribute of an essential cohesive factor in the formation and development of human communities. Concerning the the state language in Republic of Moldova, the author proposes to amend paragraph 1 of article 13 of the Constitution of the Republic of Moldova by replacing the phrase "Moldovan language" with "Romanian language", an expression of the strengthening of national consciousness, an aspect of importance that cannot be denied, all the more as the internal and international context calls for a greater cohesion and action to safeguard the core values of the nation.

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THE FRAMEWORK AND LIMITS OF THE CONSTITUTIONAL AND LEGAL POWERS IN THE ACTIVITY OF THE PUBLIC MINISTRY IN THE CONTEXT OF RESPECTING THE FUNCTIONS OF THE STATE

Author(s): Lucian Chiriac,Sonia Bianca Blaj / Language(s): English Issue: 4/2022

The material competence of public administrative authorities, with the object of drafting and issuing administrative acts, is provided in the Romanian Constitution and the Administrative Code introduced into the normative circuit by O.U.G. no. 57/2019. The legality control of administrative acts is generally ensured by the courts directly or indirectly, especially by the administrative litigation courts. Therefore, it is obvious that the Public Ministry, which is part of an executive-administrative body (see ECtHR decisions) and not of the judicial power, has no way to rule on the legality/opportunity of normative administrative acts, this control remaining exclusively in the task of administrative litigation courts. It remains to be discussed regarding the individual administrative acts, within what limits they can be subject to criminal prosecution. The present communication seeks to place in the natural concert of the legal powers of the various constitutional and legal authorities, each institution respecting the functions of the state and their competences.

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THE PUBLIC ADMINISTRATION PROCEDURAL LAW IN 2030?! DREAM OR REALITY?!

Author(s): Balázs Szabó / Language(s): English Issue: 4/2022

The public administrative work processes – and within that the regulation of the official procedure – have their own peculiarities and regularities. Observing, counting, organizing and possibly rethinking them can be extremely rewarding, as the history of modernisation of administrative work has shown. The present study consists of two parts. In the first part, entitled “What was and what is now”, I discuss the foreign and then Hungarian antecedents of the rationalization of the public administration system and administrative work processes. Then, I analyze shortly the main characteristics of each stage of my “journey” from the first stage of the establishment of the general rules of the Hungarian administrative authority procedure – from the years 1957, 1981, 2004, 2016. In the second part, entitled “What will happen”, I draw my vision, the consequences of the first part and outline what the position of the general regulation of the official procedure will be in Hungary in 2030. Sci-fi or reality? I try to give a hypothetical answer to this question. Not the way others see it, but the way I think it is.

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DES CONSIDÉRATIONS CRITIQUES CONCERNANTLA DÉCISION DE LA COUR CONSTITUTIONNELLE NO. 832/2021

Author(s): Truta Roxana,Claudia Roşu / Language(s): French Issue: 4/2022

Ce document attire l'attention sur la décision de la Cour Constitutionnelle no. 832/2021 concernant l'exception d'inconstitutionnalité de la phrase "exactement et littéralement" des dispositions de l'art. 323 par. 1 du Code de procédure civile.Les auteurs y apportent un regard critique, analysant en détail les arguments avancés par la Cour Constitutionnelle qui ont conduit à l'admission de l'exception d'inconstitutionnalité.Dans le même temps, cet article analyse dans quelle mesure l'argument de la Cour Constitutionnelle concernant la charge des tribunaux est susceptible d'influencer le respect des principes fondamentaux qui régissent la procédure civile.

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CHARACTERISTICS OF PROCEDURAL EXCEPTIONS IN THE CIVIL PROCESS

Author(s): Andreea Marcela Praja / Language(s): English Issue: 4/2022

From our point of view, in accordance with the current regulation of C. proc. civil action, it represents the practical means, created by law and made available by law to the holder of a subjective right, for realizing this right and includes all the procedural means provided by law for the recognition or realization of that right, as well as for ensuring the defense parties in the process. The investigation of the trial regulates the procedure followed before the court for the preparation of the debate on the merits of the trial. During the procedural investigation, the court's obligation to resolve the exceptions invoked by the parties or which it can invoke ex officio is also found. The article analyzes the characteristics of procedural exceptions in the civil process because, analyzing the rules of procedural law, we found that certain proposals of ferenda law are required, the introduction of articles that expressly regulate the characteristics of procedural exceptions.

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PROTECTION MANDATE CONSIDERATIONS

Author(s): Roxana Maria Roba / Language(s): English Issue: 4/2022

Law no. 140/2022 regarding some protection measures for people with intellectual and psychosocial disabilities and the modification and completion of some normative acts introduced a new paragraph in the content of the Civil Code in book V, title IX, chapter IX, section 2, § 31, including articles 20291 - 202910, entitled Provisions regarding the protection mandate. The protection mandate is the one given by a person with full exercise capacity for the situation in which he would no longer be able to take care of his person or manage his assets. The protection mandate can also be given by the adult who benefits from judicial advice, with the consent of the legal guardian and with the authorization of the guardianship court. The present study aims to analyze this new institution compared to other institutions as well as in the context of the protection measures related to the elderly.

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THE RIGHT OF THE WITNESS TO REMAIN SILENT – A PROCEDURAL GUARANTEE AGAINST SELF-INCRIMINATION

Author(s): Magyarosi Reka-Kinga / Language(s): English Issue: 4/2022

The testimony of the witness is among the most common pieces of evidence in criminal proceedings. Although scientific evolution has considerably expanded the field of evidence, the deposition is and will remain essential to justice, as the direct human perception of the events contributes to the reconstruction of the fact, and during the hearings decisive and even previously unknown information or details can be discovered. Due to the frequency with which this evidence is used, the institution of the witness must enjoy a comprehensive regulation that gives it adequate protection. As a rule, the witness is called before the judicial bodies to give statements, which is why in the past it was not admissible a refusal on his part to report on the facts in connection with which he was summoned. If the witness had some information that could have prejudiced him in the sense of self-incrimination, he was put in front of an impossible situation to tell the truth thus contributing to his own incrimination, or to commit the crime of perjury. Of course, this situation goes against some basic principles in criminal procedural matters, an aspect that led to a regulation of the witness's right to remain silent and not self-incriminate, which was enshrined in most legal systems.

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LAWFUL TERMINATION OF DISTRAINT DUE TO EXCEEDED TERM AS STIPULATED BY ART. 2502 OF THE CRIMINAL PROCEDURE CODE OF ROMANIA

Author(s): Daniela Cristina Valea / Language(s): English Issue: 4/2022

The purpose of this paper is to present and analyze a few relevant aspects related to a fairly recent legislative amendment of the Criminal Procedure Code in Romania (28 February 2021), respectively the legal nature and the effects of non-compliance with the time frames established by the newly introduced Article 2502 in the Criminal Procedure Code. According to Article 2502 Criminal Procedure Code "Throughout the entire criminal trial, the prosecutor, the judge of the Preliminary Chamber or, as the case may be, the court periodically checks, but not later than 6 months during the criminal investigation, respectively one year throughout the trial, if the grounds which determined the taking or maintenance of the asset freezing exist, ordering, as the case may be, the maintenance, restriction or extension of the ordered measure, respectively the lifting of the ordered measure, the provisions of Article 250 and 2501 applying accordingly”. Taking into consideration the legal texts applicable in this matter, but also following the model of the procedural sanctions that can intervene in case of non-compliance with the time frames regarding the preventive measures, it is obvious that the competent legal bodies (prosecutor or court) have the obligation to carry out the periodic control on the preventive measures ordered in a criminal case, an obligation whose non-compliance calls forth the application of a/some sanctions. With regard to the type of sanction in question, given that the Romanian legislator omitted to expressly stipulate this issue, two points of view have already been outlined in the judicial practice and doctrine, based on the legal nature of the time limits established by Article 2502 Criminal Procedure Code: these are imperative terms whose non-compliance attracts the only possible sanction, the termination de jure of the measure, or there are recommended time frames whose non-compliance could incur the sanction of relative nullity provided the proof of damage to a legitimate interest is proven

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ASSESSMENTS ON THE DUTIES OF THE CONTEMPORARY POLICEMAN FROM THE PERSPECTIVE OF PREVENTING AND COMBATING THE CRIMINAL PHENOMENON

Author(s): Stefania Dumitrache / Language(s): English Issue: 4/2022

The paper aims to make an x-ray of the duties of policemen seen as guarantors of law enforcement by exercising the prerogatives of public power in order to ensure the protection of the principle of legality and safety of the social environment by protecting public order. The scientific research activity will use the method of in-depth and comparative research of the current stage of domestic knowledge in the field. This approach will determine a logic and systematic interpretation, respectively a synthesis of the information obtained on this occasion, being a great occasion to come up with pertinent proposals for further legislation. The topic is as current as possible, given the role of the police officer in contemporary society, as well as the current concerns for ensuring a solid legal framework for the exercise of the duties that form the content of the service relationships of police officers.

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Ustawa Prawo wodne z 2017 roku w świetle zasad techniki prawodawczej

Author(s): Jerzy Rotko / Language(s): Polish Issue: 4/2022

The article assesses the technical and legal correctness of the legislation of the Act of 20 July 2017 – Water Law, using the logical-linguistic method. The principles of legislative technique included in the form of an annexe to the Ordinance of the Prime Minister of 20 June 2002 on the ‘Principles of Legislative Technique’ are adopted as a point of reference. The analysis of the ways of expressing standards plays a key role both at the stage of preparing and adopting a new law, as well as during the period of its validity, as it allows various shortcomings of the adopted regulations to be revealed. The fact that the Water Law of 2017 has been in force for five years does not, therefore, make it unreasonable to undertake a comprehensive assessment from the point of view of compliance with the rules of legislative technique. In a broader perspective, such an analysis also provides research material for the formulation of theoretical and legal assumptions of the law-making process and their possible verification. The conducted research shows that in the Water Law Act of 2017 there are a few violations of the standards constituting the rules of legislative technique. Most of them do not cause any serious problems in applying the provisions, but there are also some – often overlooked in a cursory reading of the law – which deserve criticism. At issue here are violations of the consistency of the systematics, inconsistencies in the group of formulated prohibitions, which are additionally excessively rigorous in relation to the requirements of European law, dispersing issues between the main act and amending acts, and generally the phenomenon of the overproduction of legal entities, which introduces unnecessary normative noise.

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Legalność samplingu muzycznego w świetle polskiego prawa autorskiego

Author(s): Łukasz Maryniak / Language(s): Polish Issue: 4/2022

As Lawrence Lessig pointed out, we live in times of ‘remix culture’ – as a result of universal access to the Internet, and thus to many cultural goods, artists often remake or otherwise use the work of other people. This is especially common in music. The purpose of this article is to show that music sampling is generally compliant with Polish copyright law. The research mainly used the dogmatic method, analysing the provisions of the Act on Copyright and Related Rights regulating the concepts of work and inspiration, as well as the institution of the right to quote. The conclusions indicate that music sampling in many cases does not infringe copyright because it consists in the use of a non-creative (unprotected) fragment of the original work. In other situations, when it is considered that a given sample is protected by copyright protection, it will usually be permissible to use it under the right to quote. Nevertheless, the above statements do not mean that sampling is always ethical or morally justified.

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