A comparative investigation into the revolution in private law in the era of human rights
Scotland and South Africa are mixed jurisdictions, combining features of common law and civil law traditions. ...Over the last decade, a shared feature in both Scotland and South Africa has been a new and intense focus on human rights.
In Scotland, the European Convention on Human Rights now constitutes an important element in the foundation of all domestic law. Similarly, the Constitution of the Republic of South Africa, adopted in 1996, has a Bill of Rights as its cornerstone. This binds the legislature, the executive, the judiciary and all organs of state - and also private parties.
In some ways, the Scottish and South African experience could not be more dissimilar, and the 'constitutional moments' from which these documents sprang were very different. At the same time, the parallels are close and compelling. This book, written by experts from both jurisdictions, examines exactly how human-rights provisions influence private law, looking at all branches of the subject. Moreover, it gives a unique perspective by comparing the approach in these kindred legal systems, providing a benchmark for both.
Since ancient times, information has been a valuable good, a authentic tool for gaining or consolidating a preemptive position in the social, state or business structure. For this reason, over time, ...anyone who wanted to control a state system, strategical in military, political, economic terms or in terms of social positioning, was drawn by the idea of acquiring some valuable information, unavailable to others. That is why in England the famous saying was issued, according to which an informed man wins twice, and in the United States of America it was consecrated the proverb regarding the fact that information is power. In modern times, information has experienced a proliferation and development, in structure and in message, unprecedented in history, to this effect fully contributing the development of digital technology, starting, especially, with the seventh decade of the last century. Therefore, digital information is currently an indispensable element of interpersonal relations, being characterized by the speed and ease with which it is sent from one side of the planet to the other, in real time.We cannot imagine the modern world without the electronic means of data transmission, a fact that represents an enormous gain of the modern society. That is why it is considered that information represents an element of imposition in the market, in the age when the computer is used in most fields of activity, which makes the holder of the informational elements to be considered as having a strong position in the market. That is precisely why, almost immediately after the development of the information transmission digital technologies, the objective and urgent need for the development of legal means of protection and of guaranteeing of the personalization of computer data was raised for discussion, in the most serious way, as an aspect that outlines the guaranteeing of the right to exclusive possession, use, transmission, preservation, exploitation of databases, in which information with valuable content is structured. Information has played and will always play one of the most important roles in the development and diversification of a countrys economic sectors. Information has its own value, but once it is developed, issued, collected, archived, organized, evaluated, preserved and presented methodically, its value increases. In the modern era, information is structured, being constituted in a well-defined organizational system, called a database, through which information is correlated with other information, and by this functional connection it enhances its relevance and its value.
As if foreshadowing a symbolic call to the legal conquest of space, of Euclids third dimension, launched later by the French professor René Savatier, the real estate volume, Praetorian creation of ...the French notarial practice of the 20th century, appears symbolically represented in the repeating and filiform overlapping motifs in the Brancuian Column of Infinite.Not yet legislated in France or in the Romanian legislation, but jurisprudentially recognized by the French courts, the real estate volume (cube of air) creates its legal identity as an immovable asset by nature, appearing in symbiosis with the superficia, but proving its own utility beyond being exclusively the object of the incipient superficia right (empty cube) or of the full superficia right (built cube).The division of the property on the vertical axis, above and below the earths crust, has made possible the technique of the real estate volume, a geometric body in space, whose coordinates are established altimetrically by geometric levelling, relative to the altimetric quota determined in our country by the system Black Sea 1975. After we concluded in a previous study that the real estate volume can be perfectly adapted to the Romanian legal system, this time we will study whether the real estate volume can also exist autonomously from the surperficia and what it could be useful for, in the context of the three-dimensional and digital evolution of society.Marking both the evolution of the surperficia from two-dimensional to three-dimensional, the real estate volume can constitute the vector of transition towards a three-dimensional cadastral system, having the real estate volume as the unit and the plot of land as reference system, in relation to which the volumes intertwine underground and above ground, in a three-dimensional puzzle, theoretically infinitely in space, practically within the limits determined by the urban planning regulations.
The author of this study aims to make a brief analysis of the legal effects of the nullity, resolution and termination of the legal act, offering a different perspective regarding the legal effect of ...the retroactivity and of the termination only for the future of the civil legal act in the case of termination.It is appreciated that the moment of occurrence of the cause of nullity, resolution or termination is the decisive one in assessing the effects of the abolition of a civil legal act, and not the moment of when the court judgment by which the respective sanction was ordered becomes final. In relation to this moment we are offered some solutions regarding some problems related to the restitution of the benefits in the situation where the resolution or termination of the civil legal act would be ordered.
Since the Romanian legislator did not exhaustively define the legal regime of the sanction of revoking the donation for the non-fulfilment of the duty, a sanction with a restricted area of ...application, we appreciate that this role, of establishing or configuring its scope of application, falls under the incidence of the judicial doctrine and practice. Starting from this premise, the topic proposed for analysis focuses, mainly, on the legal regime of the sanction that intervenes in the event that the obligations instituted by the donation contract for the donee are not complied with, respectively on the sanction of revoking the donation for the non-fulfilment of the duty, which represents one of the exceptions expressly recognized by the legislator from the principle of irrevocability of donations. The purpose of the article is to capture and make a synthesis of the established jurisprudential perspectives in the matter of revoking the donations for the non-fulfilment of the duties established within such a contract. At the same time, we propose to present a brief analysis of this civil sanction and the similarities which it presents to the sanction of resolution or of termination of the civil legal acts.Furthermore, we intend that the present material be the basis for the identification of some additional criteria of assessment, to be taken into account by the courts of law when they are called to analyze and to assess the incidence of this civil sanction in those cases where the particularities of the case confer substance to the distance between the two diametrically opposed solutions for the settlement of the case.
The exponential development of new technologies brings with it efficient technical solutions that can be implemented in everyday socio-economic life, but which in many cases go beyond the regulatory ...framework based on stable ancestral legal concepts, forcing the law to leave its comfort zone in order to adapt. The need for the law to adapt to new realities has always existed, but today it is perhaps more pressing than ever, because the exponential pace of technological development and the economic imperative of implementing new solutions require viable legal remedies that are just as swift. This paper aims to explore the legal nature of Bitcoin the technical prologue to a potential new decentralized world. It begins by setting out the history of the struggle to liberalize the use of cryptography and the liberal beliefs of cypherpunks, the community of programmers who advocated online privacy, of which the creator of Bitcoin was part. The article then examines the technical aspects of how the network works, seeking to make them more digestible through an analogy, albeit simplified, imperfect and inappropriate. Finally, evoking the debates in English law with respect to digital assets, the article attempts to answer questions pertaining to the legal qualification of Bitcoin according to Romanian law, seeking to establish whether Bitcoins are susceptible to possession and whether they can be subject to ownership.
By the Decision No 52/2023, the High Court of Cassation and Justice the Panel for the settlement of some matters of law has admitted the referral made by the Piteti Court of Appeal Civil Section I, ...regarding the pronouncement of a preliminary decision, and, consequently, has established that, in the interpretation of the provisions of Article 488 (1) point 2 of the Civil Procedure Code, by reference to those of Articles 19 and 214 of the same Code, within the grounds of appeal provided by Article 488 (1) point 2 of the Civil Procedure Code the criticisms regarding the legality of the measure to change the composition of the panel of judges in appeal ordered by a decision of the governing board of the court cannot be analyzed, the legality of this decision can be analyzed under the terms of the Law of administrative disputed claims No 554/2004, as amended and supplemented.In the opinion of the author, the correct interpretation is the one expressed in the second point of view, which assessed that the reason regarding the legality of the measure to change the composition of the panel of judges ordered by a judgement of the governing board of the court of appeal can be analyzed concretely/effectively by the court of appeal.
The dissolution of the marriage can be carried out judicially, according to the legal provisions that regulate the institution of divorce in several ways: divorce by the consent of the spouses, ...divorce due to fault and divorce due to the state of health of a spouse, as well as the hypothesis of divorce at the request of one of the spouses, for a de facto separation of at least 2 years.The delicate matter of the divorce trial is closely related to the situations adjacent thereto. In this sense, we mention as a matter of principle the delicate issue of a divorce procedure that also involves minor children.Through this study, we want to achieve an overview of the situations that aim to use the special procedure of the presidential ordinance in the matter of the divorce trial, as well as its efficiency or inefficiency in practical cases through the analysis of the relevant case law.
The second part of the topic generated by the approach to the specifics of the nullity of the fiscal procedure acts, as they were delimited in the first part, is intended for the application of the ...annulment cases, delimited, in particular, by the French doctrine of administrative law, to the fiscal administrative act.
Beforehand, there are required references to the problems generated by the approaches from the French doctrine aimed at identifying the generic cases of annulment in relation to the way in which nullity is regulated in the rules of the Fiscal Procedure Code.
In the context of the discussions concerning the relative nullity, the correct relationship between the notions of nullity, annulability and annulment must be clarified. Thus, in the comments concerning Article 49 of the Fiscal Procedure Code, differentiating between nullity and annulability, in the claim that the latter would constitute the attribute of the administrative acts affected by flaws of unlawfulness arising from the non-compliance with some validity conditions of lesser importance, it is evoked the thesis of the supporters of the presence of relative nullity including in the matter of administrative acts. However, the relative nullity is not compatible with the public interest on the basis of which any rule of administrative law is enacted.
In order to avoid any confusions, the term nullity must denote the organic state of the act affected by serious defects of unlawfulness arising from the non-compliance with the conditions of validity specific to each category of legal acts, the term annulability, particularized, as a rule, in the wording are annulable, must be used to denote virtual nullities, and the word annulment, only to evoke the approach of the authorities to proceed with the annulment of legal acts affected by the flaws/defects of unlawfulness likely to generate their nullity.
Given that, in the tax law doctrine, there are opinions evoking the support for the theory of the presence of legal non-existence and of relative nullity, it must be checked to what extent they can find their place in the matter of fiscal administrative acts. Although the doctrine in the matter contains tangential references to the non-existence, when commenting on the fiscal procedural texts referring to the communication of the fiscal administrative act, there is no regulation that expressly refers to the non-existence of such acts, as the legislator proceeded when specifying the sanction applicable to some administrative acts (the decisions and ordinances of the Government, as well as the decisions of the Prime Minister) not published in the Official Gazette of Romania.
As the fiscal administrative acts constitute a species of the administrative acts, it is necessary to verify to what extent it is applied the theory of nullity from the administrative law and ...referring to the former.Given the reality that the taxation statement is an act originating from the taxpayer/payer, but being assimilated to a taxation decision, subject to a subsequent verification, there are also present in the fiscal procedure, as well as in the civil procedural law, two categories of acts: acts issued by the fiscal authorities and acts originating from the debtors of the fiscal obligations. Consequently, for the latter, we will encounter inevitably the vices of unlawfulness specific to the documents drawn up by individuals, arising from non-compliance with the general conditions of validity regarding capacity, the consent (the manifestation of will in the sense of declaring the information necessary to establish the taxable base and of undertaking to fulfil the fiscal obligation), the object of the legal act and its cause.Since the doctrine in fiscal matters, especially the monographs on the fiscal procedural law, does not classify the acts related to this branch of law except according to the criterion of their object, it should be pointed out that, also for fiscal administrative documents, their classification is applicable, according to the criterion of the extent of the legal effects that they produce, into normative fiscal administrative acts and the individual fiscal administrative acts.This classification, used in the administrative law, is justified by the presence of the fiscal administrative acts that contain fiscal normative regulations, such as the orders of the president of the National Agency of Fiscal Administration, of the Minister of Finance and other ministers, with an impact in the field of taxation.Or, undoubtedly, this classification has an impact on the cancellation procedures and on the extent of the effects of the nullity of each of the two classes of fiscal administrative acts.Since the Fiscal Procedure Code contains textual references to the right of appreciation of the tax body, using the terminology of the Code, it must be established whether and to what extent it has substance in fiscal matters. As it was institutionalized by the classic authors of administrative law, being opposed to the competence related to the administrative authorities, as giving substance to the competence of appreciation, which establishes the dimension of opportunity in the matter of administrative acts, at least at first sight, the tax authorities do not have the competence to appreciate on the extent of fiscal obligations, established on determined criteria.
