Suchergebnisse

Although in the field of public procurement the use of subcontractors has been accepted and gradually extended both at the level of regulations and in practice, the details of its legal regime remain to be fully outlined, in particular as regards the extent of subcontracting and the possibility of limiting it in European and national law. In those circumstances, the practice has led to the emergence of at least three main questions relating to the method of setting the limits of subcontracting, namely the admissibility of full subcontracting, the conditions under which restrictions on subcontracting may be set and the admissibility of the imposition of restrictions on the price of subcontracting. Based on the relevant case-law, the study analyzes the legal regime of the limitations that can be brought to the right to subcontract and their impact on the intuitu personae character of the public procurement contract.

This study aims to describe the legal regime of the compensatory payment, with reference to the legislative framework, the sources of inspiration of the regulation, as well as to the current national case-law in this matter, which confirms, by the large number of cases solved after the entry into force of the Civil Code, the social utility of this legal institution. On the basis of the case law examples provided, the authors analyze the legal nature of the compensatory allowance by distinguishing it from similar institutions – the maintenance obligation between ex-spouses or the right to compensation – the conditions to be fulfilled when granting compensatory payment, the criteria used to impose, modify or terminate the obligation, and the substantive and procedural law difficulties of these disputes.

The article aims to present some elements regarding the history of Romanian law in Bessarabia from 1812 until the period immediately following the Great Union. The evolution of Romanian law in this period could be described by three determinants: unity, survival and unification. In 1812 there was a cohesive system of legal norms in Bessarabia, a true autochthonous law, so that the annexation of Bessarabia by the Tsarist Empire did not mean the automatic replacement of the applicable rules of conduct, but some legal institutions survived until the Great Union. Moreover, immediately after the annexation of Bessarabia, there was the intention to draw up a "Civil Code for Bessarabia", the jurist Petru Manega succeeding in carrying out such a project following the model of the Napoleonic Code. The last stage analyzed is that of the process of legislative unification of Bessarabia, a difficult process and, unfortunately, with a short-term effect. Last but not least, the study aims to bring up in actuality the personality and the work of two illustrious Romanian lawyers, Andrei Rădulescu and Vespasian Erbiceanu.

This study contains a detailed analysis of the Defense of refusal to perform and the Right of retention in the current Civil Code, with reference to the practice of the courts of law and to comparative law issues. Therefore, following the update of the two legal institutions, the present study mirrors the defense of refusal to perform with the right of retention (i.e. legal frame, notion, legal ground, characteristics, application domain, exercise's conditions, operation's mechanism, effects and transitional law). Following the examinations of the above-mentioned issues, both legal institutions are compared in order to outline the differences between them. By doing so, the article aims to settle the edge between these two means of judicial defense and to put an end to long debated controversies in the literature and judicial practice. Key-words: Civil Code; favor contractus; the rule of specific performance; the plea of breach of the contract/defense of refusal to perform/right to withhold performance of reciprocal obligation; right of retention; defense; statement of defense; counterclaim; synallagmatic contract; the special effects of synallagmatic contract; remedies for breach of contract; imperfect guarantee

This year, the paper entitled "The criminal liability of the moral persons" by Associated professor PhD Andra-Roxana Trandafir was published under the edit of C.H. Beck Publishing house. The paper combines the research, didactic and professional experience of the author, aspects that provide the work with a practical and holistic approach. We appreciate, based on what is presented in this review, that this LL.M course is the most complete and current study on this subject and a necessary reading for any student or practitioner in criminal law.

Within the greater map of the legal mechanisms related to software Intellectual Property Law and its protection systems1 certainly play a core part. This article only grasps the interaction between two of the Intellectual Property protection systems granting a direct form of protection by employing exclusive rights over software: copyright and patent law. The choice between one of these two regimes has been historically challenged. As software is a complex concept gathering heterogeneous elements – the dynamics of copyright and patent law related to software are molded by their specific subject matter – hence, defining software becomes a core step in the assessment of its protection mechanisms.

The purpose of the article is to study the evolution of the criminal participation in Romania, with increased attention paid to the way in which criminal liability of legal entities was accepted and developed over time, to try to formulate predictions about the future of legal persons in the criminal law and to analyse the possibility of accepting, according to the current rules, the artificial intelligence systems as subjects of criminal law. The historical perspective is doubled by comparative law case studies which are based on judgments from the United Kingdom and France that are representative for the currents of opinion regarding need to prosecute and convict legal persons together with the individuals involved in the criminal activity.

This paper analyses the historical evolution of the process of contract interpretation by recourse to the contra proferentem rule of interpretation – the interpretation of certain wording in a manner less favourable to the party that proposed it. By conducting a historical analysis of the framework of the rule, along a comparative analysis of the manner in which the rule is applied in various legal systems, we attempted to identify the role of the rule within the framework of the rules governing contract interpretation and to determine the manner in which the rule serves its role. Starting from these coordinates, the study proposes certain alternative mechanisms which might fulfil the same role, while at the same time decreasing the risks associated with the contra proferentem rule.

The relations between trade unions and employers' organizations are decided by collective labor agreements. The manner in which employers and employees organizations recognize themselves as capable of representing their members is decided by the internal legislation of each country. In Romania, representativeness is an essential condition, which must be met by employers' organizations and trade unions wishing to participate in the negotiation and signing of collective labor agreements.

This article examines the legal institution of the challenge against the delaying of proceedings, having as premise the raison d'être of this institution. The Romanian legislator took a first step towards conducting proceedings if not within an optimal and foreseeable period, at least within a reasonable one, by amending the Code of Civil Procedure to introduce the institution of the challenge meant to expedite the conducting of civil trials. Throughout this article we will look at how the challenge against the delaying of proceedings has been regulated, but in particular at the problems that have arisen in practice. Finally, several proposals de lege ferenda are put forward, which should be implemented by the legislator in order for this legal institution to achieve the purpose for which it has been adopted, followed by a few conclusions reflecting the state of play of this institution, but especially answering the question of whether the challenge against the delaying of proceedings is an effective remedy, within the meaning of art. 13 of the Convention, against the excessive duration of proceedings.

This material analyzes two of the modalities of the crime provided by art. 287 of the Criminal Code, respectively the one of non-observance of court decisions: the one regulated at let. d) non-execution of the court decision by which it was ordered the reinstatement into work of an employee and the one regulated at let. e) non-execution of the court decision regarding the payment of salaries within 15 days as of the date of the execution request addressed to the employer by the interested party. With the entry into force of the Criminal Code, on February 1, 2014, these two crimes were taken over from the Labor Code, where they were previously regulated, a series of amendments being implemented with this occasion. The article examines these changes, but also deepens the issues that continue to arise regarding the constitutive content of these crimes, trying to propose solutions for a uniform interpretation at the level of judicial practice.

Although the jurisprudence of the Court of Justice of the European Union is commonly reflected in the practice of the national courts, unfortunately, more than ten years after Romania's accession to the European Union, there are still some syncopations at the legislative level. There are an example in that sense some of the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution (contestatia la executare). Indeed, on closer examination, it appears that these provisions do not fully comply with the requirements which, according to the jurisprudence of the Court of Justice of the European Union, must be respected by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers. The present article aims at such an examination of the provisions of the Romanian Code of Civil Procedure regarding the contestation against the forced execution from the perspective of the jurisprudence of the Court of Justice of the European Union in the field of unfair terms. Thus, after having identified from the jurisprudence of the Court of Justice the requirements that must be met by national legislation in order to stop the application of unfair terms in contracts concluded by a professional with consumers, the provisions of the Romanian Code of Civil Procedure relating to the contestation against the forced execution, the stay of execution and the time limit for the contestation will be examined from the perspective of the said jurisprudence. Finally, and without claiming to be exhaustive, in this article, the author also puts forward a possible interpretation of the national provisions examined from the point of view of the case law of the Court of Justice.

In the context of the COVID-19 pandemic, this article analyses some possibilities provided by the law in order to protect the public health or the health of an individual, respectively the commission of certain actions sanctioned by the criminal law under the incidence of the justification causes, with the consequence of their lack of criminal character. Whether it is the means of retaliation or rescue that can be used by a person facing the transmission of infectious diseases, the actions necessary to prevent or combat the pandemic that the law authorizes or the availability or not of a person's health as a social value, the situations that may appear in the near future in the legal practice have not been previously studied by the doctrine and have an element of novelty. Thus, the article makes, based on some theoretical exercises, a punctual analysis of some problems of application and interpretation that could intervene and for which are offered, most of the times, generic, principled landmarks, but also some concrete solutions on the incidence or exclusion from the application of the justification causes.

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if "common sense" might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the "best candidate" as a justification or excuse is distress, while the "second best candidate" might be represented by the state of necessity.

The recent medical crisis triggered by the SARS Cov-2 virus reopened the public debate on the effects force majeure has upon the (performance by the parties of the) contractual obligations. Aside of (re)discovering the legal conditions required for an event to be qualified as force majeure, the legal issues raised by the effects of such event were more urgent. The fact that the Government passed special (albeit temporary) regulations seemingly altering the general rules added to the complexity of the analysis. In this paper we tried to capture those elements that are specific to the effects a force majeure event has on the performance of the banking services agreement. We focused on the various forms of banking credit operations as well as on some forms of deposit of funds. We noticed that the effect of the force majeure can be much flattened (until it can be mostly ignored) when the subject matter of the contract concerns (amounts of money) looked at as essentially fungible goods.