VZŤAH POZEMKOV A VECÍ S NIMI SPOJENÝMI NA ZÁKLADE ŽILINSKEJ PRÁVNEJ KNIHY

Author(s): Miroslav Lysý / Language(s): Slovak Issue: 3/2022

The paper based on the analysis of municipal law in the town of Žilina is concerned with legal relation of plots of land and the things attached to them. The town code of Žilina was an expression of the Magdeburg law and it reached Žilina through the influence of the town of Krupina. The tavernical law is also analysed, as well as some other Hungarian sources related to municipal law (especially the Opus Tripartitum). The analysis of these sources suggests that in spite of the absence of the superficies solo cedit principle as a visible rule, all disputable things related to the connection of a plot of land and a movable property or a construction are consequently solved by the unity of the property of such a plot of land and a thing connected to it. Such a solution can also be found especially in cases like constructions or other objects on a rented plot of land, but also in some other cases, like a flight of a hive to another plot of land. Conclusions formulated in this study are collected mostly from the area of the Žilina law or the tavernical law, but in contrast, such solutions are not to be found in the Bratislava law or in other towns. This fact is probably caused by the lower urbanization level of Žilina in contrast with Bratislava and in the density of constructions of these areas. By higher density of construction we can presume the lower level of constructing on such rented plots of land. If we can find such examples from the towncode of Žilina, it is possible to generalize this for other towns, too.

Corpus Methodiana Juridica in the 20th century scientific research – arguments and hypothesis

Author(s): Maja Jakimovska-Tošić / Language(s): English Issue: 02/2024

Regarding the thematic focus of the study, it is important to highlight the contribution of St. Methodius in terms of literary achievement, both translational and original, in tackling the legal-canonic problématique. We consider and de- termine these questions through the scientific research prism of the 20th century. Based on several archaic linguistic par- ticularities, as well as many other general characteristics, literary memoirs of the likes of Synagogue of 50 Titles/Names, Civil Law, Orders of the Holy Fathers, as well as the anonymous Homily found in the Klotz Code are all attributed to the literary pursuits of Methodius. Especially important is to determinate the role of St. Methodius in his translation, creative work, and application in correlation with the question of the existence of the Corpus Methodiana Juridica, as a canon law collection of a wider scope compiled by Methodius.

Библиотеката на СЮБ представя

Author(s): Author Not Specified / Language(s): Bulgarian Issue: 1/2025

De la adevăr la contrafactual pe calea echităţii

Author(s): Valeriu Stoica / Language(s): Romanian Issue: 04/2024

The goal of perfect concordance between objective truth and judicial truth is difficult, sometimes impossible to achieve. Even the legislator accepts the difference between these two hypotheses of truth, especially in cases where the subject of the judgment is a civil liability relationship. In such cases, it is not just a question of establishing past facts and consequences as faithfully as possible on the basis of the evidence, i.e. of capturing their image, as in a mirror, which is a very difficult task, because sometimes the mirror distorts the image. Not infrequently, the damages subject to compensation in civil liability relationships do not allow for pictures that reflect what has happened, but only credible guesses about what might have happened in the past or might happen in the future or reasonable assessments of the chance (probability) that something might have happened in the past or might happen in the future. In all these cases, the legal provisions, doctrine and judicial practice provide only the principles, guidelines and criteria that constitute the framework within which the courts establish the judicial truth, not only as an expression of objective truth, as a reflection of reality, but also as an element of adjustment or reconstruction of reality. Counterfactual hypotheses, characterized by relative certainty, in the legal sense, are the judicial way in which possible universes become part of the judicial truth, ceasing to be mere fictions. By entrusting judges with such a difficult task in civil liability cases, they are supposed to be guided by the light of the principle of fairness, and judicial truth is not only related to objective truth, but is also an expression of this principle.

Nulităţi, prejudicii, restituiri, ieri şi azi. De la Vechiul Cod la Noul Cod civil şi mai departe?

Author(s): Marian Nicolae / Language(s): Romanian Issue: 04/2024

In a codified civil law system such as Romanian civil law, the issue of nullities, damages and restitution cannot disregard and must start from the data of positive law, in this case the two civil codes, the Civil Code of 1864 and the New Civil Code of 2009. As far as the Old Civil Code is concerned, the French and then the Romanian legislator, only in the area of nullity, established sufficient normative benchmarks for the construction of a theory of nullity, in accordance with the tradition in the matter, while in the area of civil liability and, partially, in that of restitution, it has fallen to legal doctrine and judicial practice to carry out the noble but difficult task of elaborating (the theory of civil liability) or, where appropriate, revising (the theory of restitution) the theories in this area, establishing which is the really applicable law (ius vivens, law in the action, diritto vivente). On the other hand, in the system of the New Civil Code, a theory of nullity of Bartholomew’s origin is undoubtedly enshrined, based on the distinction between so-called “absolute” nullity, instituted to protect a general, public interest, and so-called “relative” nullity, instituted to protect an individual, particular interest, but also a theory of civil liability, based on fault, in principle, to which is added the unitary theory of restitution of benefits rendered without legitimate cause or on the basis of an inoperative cause, as the case may be.Although independent, or rather autonomous, between nullity, civil liability, property rights and the right to restitution of benefits, there are or may be interactions and mutual influences (contamination), so that it remains to be investigated in depth the rules of validity, liability, property and restitution in Romanian civil law, first and foremost, those contained in the new Civil Code, and their critical assessment in relation to other continental and transcontinental civil codifications, as well as to the international and European instruments mentioned above, which are intended to lay the foundations for a nova lex mercatoria universalis and a novum ius commune europæum.

Demnitatea demnităţii. Despre afectarea demnităţii persoanei juridice

Author(s): Radu Rizoiu / Language(s): Romanian Issue: 04/2024

This paper analyses the possibility for a legal entity to claim legal protection for a “right” to dignity. In order to answer this question, the concept of dignity is put under scrutiny and it is distinguished from the similar concepts of reputation and honor. Further on, by reviewing the national case law as well as that of the European Court of Human Rights, a split is identified between the dignity as such and the reputation and it looks like the dignity is not denied to legal entities. Finally, the paper presents several practical hypotheses where the dignity (belonging only to natural persons) has a spillover effect and contaminates the official office held by a certain individual and vice versa.

Atingerea adusă reputaţiei. Condiţii şi măsuri dispuse de instanţe în contextul jurisprudenţei CtEDO

Author(s): Dragoş Bogdan,Irina Crivăț / Language(s): Romanian Issue: 04/2024

This paper analyses the protection of reputation in the context of Romanian case-law and the influence of the European Court of Human Rights (ECHR). The evolution of the digital sphere brings with it new issues of debate regarding the balance between the protection of the right to reputation and the protection of freedom of expression. The Internet has significantly expanded both public access to information and access to a platform for the general public. The downside, however, is the emergence of major threats to the right to reputation and privacy.In this respect, we have identified three key trends within Romanian court practice: 1) the principles developed by the ECHR to ensure a fair balance between the right to privacy and the right to freedom of expression are usually analysed and applied by Romanian courts. Although the case-law of the ECHR is generally respected, the National Audiovisual Council (NAC) remains less receptive to integrating these principles into its decisions; 2) decision no. 1/2023 of the High Court of Cassation and Justice has not yet been implemented in the practice of the courts; 3) online defamation poses some new challenges, particularly in terms of removing old defamatory content and balancing the applicable remedies and the protection of freedom of expression. By analysing more than 150 court rulings and 160 NAC decisions rendered in recent years, this paper emphasizes the importance of proportionality of the measures ordered by the courts. In the context of the Internet, keeping defamatory content publicly available creates a particular problem: published information is not only essentially accessible to anyone, but this accessibility is no longer limited in time.Under these circumstances, in particular, questions arise as to the existence of measures (especially preventative measures) that sufficiently stifle the danger posed to non-pecuniary rights. While freedom of expression seems to be afforded greater protection than is the norm in ECHR case-law (for example, by making it impossible to prohibit the imminent publication of defamatory material), the question is whether this protection does not excessively attenuate the guarantees afforded to (for example) the right to privacy.

Dansul părinţilor şi repararea prejudiciului moral în cazul înstrăinării părinteşti

Author(s): Marieta Avram / Language(s): Romanian Issue: 04/2024

The legislative picture of measures centered on the alienated child is still incomplete, because Law no. 272/2004 on the protection and promotion of children’s rights, even after the amendment produced by Law no. 123/2024, does not integrate the civil liability of the parent/person who alienates the child, nor the possibility of compensation for moral damages caused to the alienated parent and the child. The lack of express regulation in this respect is made up for by the common law, which undoubtedly remains applicable, as illustrated by the crystallized judicial practice in this area. Both preventing and combating the phenomenon of parental alienation cannot be conceived outside the institution of civil liability, whether this is presented autonomously or as a civil side in criminal proceedings, without which the law risks remaining a dead letter.

Când dansul rămâne fără muzică: despăgubiri şi compensaţii între foştii soţi

Author(s): Oana Ghiţă,Sevastian Cercel / Language(s): Romanian Issue: 04/2024

Legally transposing the metaphor of the title, inspired by the theme of the National Conference on Civil Law – 2024, the starting point of the present study is the context of divorce, after which the former spouses must continue their collaboration on two levels: in respect of property acquired during the matrimonial property regime, on the one hand, and in the exercise of parental authority, on the other. Obviously, treating the issue of marital equilibrium from the perspective of the amounts that the ex-spouses might owe each other, only the first hypothesis is to be analyzed. The starting point is Article 356 of the Civil Code, according to which, if the regime of community of property ceases by the dissolution of the marriage, the former spouses remain joint owners of the common property until the determination of their respective shares, but also the principle of co-determination, which also applies to the conventional regimes applicable to the legal acts concluded by the spouses within the postmarital community. This form of community, frozen at the time of the divorce petition, was considered a transitional property status, a relic of marriage. In other words, during the marriage there is harmony, music plays in the background, but after the separation, the dance must continue, in its absence, with the inherent difficulties and with the intervention of the legislator himself, by providing reparation mechanisms such as the right to compensation, compensatory benefits, the right to compensation.

Complicaţii juridice în minunata lume nouă a reproducerii umane asistate medical: prejudicii, reparaţii, despăgubiri

Author(s): Lavinia Tec / Language(s): Romanian Issue: 04/2024

In this study we will analyze the typology of the damage, the repair and the compensation in the matter of the human reproduction assisted medically, starting from the peculiarities of the medical services contract and the typology of the conflicts that may be the source of the civil liability.

Răspunderea civilă în cazul încălcării limitelor judiciare ale dreptului de proprietate privată (art. 630 C. civ.)

Author(s): Flavius Antoniu Baias,Teodor Nicodin / Language(s): Romanian Issue: 04/2024

In this article, we aim to determine the legal nature of liability in case of violation of the judicial limits of the right of ownership and we will also try to argue why the foundation of this institution is represented by tort liability and equity, as well as to present the main characteristics of the judicial limits.

Despre prejudiciu în cazul limitelor legale ale dreptului de proprietate privată

Author(s): Irina Sferdian / Language(s): Romanian Issue: 04/2024

In the present study we will strictly refer to the legal limits regulated by the Civil Code, from the perspective of the damage they cause both by their application and by their violation. The legal limits on the right of ownership, whether reciprocal or unilateral, resize the economic content of the right of ownership over the dominant land, which acquires a utility benefit at the expense of the servient land, which suffers a correlative reduction in utility. With regard to the harm that can arise in the case of legal limits, we must distinguish, on the one hand, between the harm caused by the application of the limit and the harm caused by the breach of the limit, and, on the other hand, between the harm that arises in the case of reciprocal legal limits, which are usually negative, and the harm that arises in the case of unilateral legal limits, which are usually positive. Last but not least, we shall show that the damage arising from the application of the limit, being the result of a lawful action, is compensated by the payment of damages prior to its occurrence. It is a global estimated damage, based on criteria that may be uncertain. The actions by which this damage may be compensated are different from those seeking compensation for damage arising from a breach of the limit by a wrongful act giving rise to tort or delict.

Mai există un principiu al reparării în natură a prejudiciului? Posibile argumente contrare

Author(s): Ioan Ilieş Neamţ / Language(s): Romanian Issue: 04/2024

For almost a century, the jurisprudence and doctrine have claimed the existence of a “in kind reparation of damage principle” in the field of tortious liability. This idea became so deeply rooted that it seems to be indisputable. In this paper, we set up to analyze to what extent the qualification of in kind damage reparation as a principle tortious liability truly is undeniable.In this regard, in the first section, we have underlined the general particularities of the principles of law, showing that they are fundamental norms, formulated in a general and abstract manner, which behave in a particular way when they conflict with other principles and which represent the conceptual source of ordinary legal norms, function as an interpretation filter, can constitute grounds for the removal of common legal provisions and ensure the completeness of the law. Then, we focused on the in kind damage reparation, which, at the beginning of the communist era, was transformed by the jurisprudence from an exceptional form of damage reparation, into a rule and then into a principle of tortious liability.In the end, the general particularities of the principles of law have been where compared with the legal regime of the in-kind damage reparations, as it is provided by the positive law, resulting in that the two are not quite compatible, the in-kind damage reparation being deficient both in terms of compliance with the essential characteristics of the principles and with their functions.

PREVEDERI ALE CONSTITUȚIEI REPUBLICII MOLDOVA PRIVIND LIBERTATEA RELIGIOASĂ ȘI PROTECȚIA EI JURIDICĂ

Author(s): Cătălina Mititelu / Language(s): Romanian Issue: 3/2024

In the Republic of Moldova, the right to freedom of religion, one of the fundamental human rights, is enshrined both in the Constitution and in the Law of religious denominations, the text of which was the subject of our legal study. From the hermeneutic analysis of the text of the two sources, the Constitution and the Law of religious denominations, we have been able to ascertain that the legislator wished to remain within the country’s constitutional tradition, which he adapted to the requirements of today’s times in the spirit of international legislation on human rights and freedoms, which also brought with it some inherent clarifications both in terms of the definition of human rights and freedoms and of the relationship between the Church and the State, which was ultimately declared “neutral”. Undoubtedly, the process of constitutionalization, which the Republic of Moldova will also go through when it becomes a Member State of the European Union, will also bring new clarifications regarding the way in which the norms of European legislation are applied, and implicitly also regarding the ways in which the legal protection of the right to religious freedom is implemented.

Nyelvi bizonytalanságok hatása a versenyjogi kártérítési perek szabályainak következetes alkalmazására

Author(s): Zsolt Daniel Gyebrovszki / Language(s): Hungarian Issue: 2/2024

Competition law damages actions are civil actions for compensation for damages suffered by competitors because of the conduct of companies that have infringed competition law by, for example, price fixing, market sharing, or predatory pricing. Unlike public law enforcement- conducted by competition authorities - which dominates European Union and national competition law, the nature of the regulatory framework for competition law damages actions is such that it mixes public law (illegality) and private law (liability) rules, which operate based on different legal concepts and have different conceptual sets. The rules of competition law damages actions are laid down in the form of a Directive, which, considering the heterogeneity of private law and language in the European Union and the semantic duality of European Union and national legal terminology, has given rise to legislative and enforcement problems resulting in linguistic inconsistencies.

L’AFFAIRE FU QUAN S.R.O. C. RÉPUBLIQUE TCHÈQUE : LE POSITIONNEMENT DE LA GRANDE CHAMBRE CALQUÉ SUR L’OPINION DISSIDENTE DES JUGES DE CHAMBRE

Author(s): Elisa Gomes Semedo / Language(s): French Issue: 36/2024

This study concerns a case heard by the Grand Chamber, between the Czech Republic and a company which was claiming compensation for the financial damage suffered because of the unlawful detention of its directors. While the company was successful in the judgment delivered by the Chamber, the Grand Chamber, seized at the request of the respondent State, found the application inadmissible, choosing to follow the opinion set out in the dissenting opinion led by two minority judges.

AU-DELÀ DES FRONTIÈRES : QUAND LA COUR DE STRASBOURG DÉFIE LA RUSSIE SUR LA RECONNAISSANCE DES UNIONS HOMOSEXUELLES À TRAVERS L’AFFAIRE FEDOTOVA ET AUTRES C. RUSSIE

Author(s): Emma Leporati / Language(s): French Issue: 36/2024

The judgment discussed in this contribution marks a turning point in the protection of the rights of homosexual couples in Europe. The Grand Chamber of the European Court of Human Rights upholds the Chamber judgment, in which Russia was condemned for its refusal to legally recognise same-sex unions. By this judgment, highlighting the tensions that exist between Russian cultural values and European standards, the Strasbourg Court has sent a strong message to the other Member States of the Council of Europe, which continue to show resistance. By insisting on the impossibility of justifying violations of rights and freedoms by a necessary safeguarding of national cultural traditions, the European judges confirm the existence of a conventional protection in this area, which the States Parties must respect.

Legalitatea prevederilor H.G. nr. 1393/2024 privind categoriile de contribuabili care pot elimina contravaloarea accizelor de la calculul impozitului minim pe cifra de afaceri

Author(s): Ioana Viorică / Language(s): Romanian Issue: 1/2025

The minimum turnover tax debuted in the national legislation at the level of 2023 and targets the operators that register in the previous fiscal year a turnover of more than 50 million the euro. One of the categories targeted by this new tax is that of economic operators trading excise goods on the market. The provisions of the art. 18A1, par. (3) form the Fiscal Code regulates the way of determining the minimum tax on turnover and in accordance with point (vii) of this article, the decrease of excise duties from the base for calculating the minimum turnover tax may be made if the excise revenue is reflected simultaneously in the expense accounts. However, through the additions brought by GD 1393/2024 on the Methodological Norms for the implementation of the Fiscal Code, the scope of operators that can benefit from such a decrease was restricted only to operators that pay excise duties directly to the state budget, such as producers and importers. Accordingly, operators who, although they do not pay excise dudes directly to the state budget, bear and record them as expenses through the payment of the purchase price of the excisable traded product, have been excluded from the application of the aforementioned legal provisions. Such a restriction should not only have taken the form of a change in the law, in this case, the Fiscal Code, but it is liable to affect several principles specific to tax law, to generate serious consequences for the activity of the affected economic operators, as well as to distort competition.

L’ACCÈS DES CITOYENS À LA JUSTICE CONSTITUTIONNELLE COMME MOYEN DE PROTÉGER LES VALEURS CONSTITUTIONNELLES. ANALYSE À PARTIR DES EXEMPLES DES PAYS DE LA CEI

Author(s): Tatiana Maslovskaya / Language(s): French Issue: 34/2023

In the present article, is analyzed the elaboration of the hierarchy of constitutional norms and fundamental values based on the constitutional order of the CIS countries and the cultural, historical and political specificities of each State. In fact, the author starts from the premise that, in order to effectively guarantee the rights and freedoms of citizens, they must be able to assert their violation before the constitutional judge, by direct or indirect referral. Thus, the article addresses the modalities of referral to the constitutional judge in the CIS countries and the reforms adopted in this regard in recent years.

LA LÉGISLATION SUR LA RÉFORME DES RETRAITES DES JUGES ET DES PROCUREURS EN ROUMANIE ET LA QUESTION DE SA CONFORMITÉ AU PRINCIPE D’INDÉPENDANCE DE LA JUSTICE

Author(s): Ramona Delia Popescu / Language(s): French Issue: 34/2023

The article deals with the debates that arose in Romania following the adoption of Law No. 303/2022 on the status of judges and prosecutors and, more specifically, with the problems raised by the modification of the pension system in relation to the requirement of respect for the principle of independence of the judiciary. An issue also raised by the Constitutional Court, which concluded that the pension system called into question the statutory and constitutional guarantees of magistrates.