JLS 1-2/2019

JOURNAL OF LEGAL STUDIES JURNALUL DE STUDII JURIDICE Year XIV No. 1-2/2019 JOURNAL OF LEGAL STUDIES is published twice a year under the patronage of the LEGAL RESEARCH CENTRE Lumen, 2015 Jurnalul de Studii Juridice Journal of Legal Studies Revue d'études juridiques ISSN: 1841-6195 e-ISSN: 2067-8509 Publication frequency: twice a year: No. 1-2/June and Nr. 3-4/December Bilingual Edition: English and Romanian Contact data: E-mail: [email protected] E-mail: [email protected] Telephone: 0745589142; Information about the Publishing House Lumen Publishing House, Iaşi CP 3, OP 780, Iaşi E-mail: [email protected] Telephone no.: 0332450133; Fax: 0332811551 Manager of Lumen Publishing House: Ph.D. Antonio Sandu E-mail: [email protected] Site: http://lumenpublishing.com/journals/index.php http://lumenpublishing.com/journals/index.php/jls Cover Design: Cristian Usurelu, Lumen Publishing House Copy Editor: Roxana Stratulat, Lumen Publishing House English version: ISSN: 1841-6195 English version: ISSN electronic: 2067-8509 Copyright © Journal of Legal Studies • All Rights Reserved • The selected articles cannot be given for publication to other journals Price per volume: 15 euro Subscription fee: 25 euro/year Circulation: 300 copies Editorial Board EXECUTIVE EDITORIAL BOARD Executive Editor: Nadia- Cerasela ANIŢEI - BA, MA & Ph.D „Andrei Rădulescu” Institute of Legal Research, Romanian Academy Ph.D, Professor Ph.D at the Faculty of Law and Social-Political Sciences „Dunarea de Jos” University of Galati Editor-in-Chief: Nadia -Cerasela ANIŢEI - BA, MA & Ph.D „Andrei Rădulescu” Institute of Legal Research, Romanian Academy Ph.D, Associate Professor at the Faculty of Law and Social-Political Sciences „Dunarea de Jos” University of Galati Managing Editors: Antonio SANDU - BA, MA & Ph.D „Alexandru Ioan Cuza” University from Iaşi.Chairman of the „Lumen” Association, General Manager of „Lumen” Publishing House ADVISORY EDITORIAL BOARD Nadia Cerasela ANIŢEI - Professor Ph. D, Faculty of Legal, Social and Political Sciences, Dunarea de Jos University, Galati, Romania Cristian Nicolae APETREI - Ph. D, Professor „Dunarea de Jos” Galati University of Galati, Romania Alexandru BURIAN - Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova Javier CARRASCOSA GONZÁLEZ - Professor Ph. D, University of Murcia, Spain Alfonso- Luis CALVO CARAVACA - Professor Ph. D, University Carlos III, Madrid, Spain Aurora CIUCA - Professor Ph. D, „Stefan cel Mare” University, Suceava, Romania Valerius M. CIUCA - Judge at the High Court of EU (ex), Luxembourg; Professor Ph. D, Faculty of Law, „Alexandru Ioan Cuza” University of Iaşi, Romania Silvia CRISTEA CONDOR- Professor Ph. D Academy Studie Ecoonomics, Bucharest Nicoleta DIACONU - Professor Ph. D, Faculty of Law,”Spiru Haret” University& „Alexandru Ioan Cuza”Police Academy, Bucharest, Romania Olga DYUZHEVA - Professor Ph. D, Faculty of Law, Moscow State University, Russia Călina Felicia JUGASTRU - Professor Ph. Dean, Faculty of Law „Simion Bărnuţiu”, „Lucian Blaga” University of Sibiu, Romania Dan LUPAŞCU - Professor Ph. D, Faculty of Law, University „Nicolae Titulescu” of Bucureşti, Romania Member of the Superior Council of Magistrates Ştefan Mircea MINEA - Judge at the Constitutional Court of Romania; Professor Ph. D. Faculty of Law, „Babeş Bolyai” University of Cluj, Romania Liviu POP, Professor Ph. D & Faculty of Law, „Babeş Bolyai”University of Cluj, Romania Violeta PUSCASU - Professor Ph. D , Faculty of Law and Social-Political Sciences „Dunarea de Jos” University of Galati, Romania Frank S. RAVITCH - Professor Ph. D, College of Law, Michigan State University, S.U.A. Antonio Stefan SANDU - Ph. D Professor „Alexandru Ioan Cuza” of Iaşi. Chairman of the „Lumen” Association, General Manager of „Lumen” Publishing House & Stefan cel Mare” University, Suceava, Romania Tudorel TOADER - Professor Ph. D, Minister of Justice of Romania , Judge at the Constitutional Court of Romania; , Rector „Alexandru Ioan Cuza” University of Iaşi, Romania Florin TUDOR- Professor Ph. D, Dean , Faculty of Law and Social-Political Sciences „Dunarea de Jos” Galati University of Galati, Romania Vitalie STATI - Professor Ph. D, Faculty of Law, Moldova State University Republic of Moldova Lynn D. WARDLE - Professor Ph. D, „J. Reuben Clark” Law School, Brigham Young University, S.U.A. Marius Nicolae BALAN- Associate Professor Ph. D, Professor Ph. D, Faculty of Law, „Alexandru Ioan Cuza” University of Iaşi, Romania Roxana LAZĂR - Ph. D, Dean Associate Professor, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Ionut IFRIM - Ph. D, Resarch „Andrei Radulescu” Institute of Law, Romanian Academy, Romania George SCHIN - Ph. D, Associate Professor Faculty of Law and Social-Political Sciences „Dunarea de Jos” Galati University of Galati, Romania Ana ŞTEFĂNESCU - Ph. D, Associate Professor Faculty of Law and Social-Political Sciences „Dunarea de Jos” Galati University of Galati, Romania Lecturer, Iulian APOSTU Research, Romanian Academy Ph.D University of Bucarest, Romania Călina Andreea MUNTEANU - Ph. D Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Roxana Alina PETRARU - Ph. D Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania ABOUT US: AIMS AND SCOPE: Journal of Legal Studies, a professional academic journal, published twice a year, commits itself to promoting the academic communication about laws of Romania and other countries, covers all sorts of researches on legal history, law rules, legal culture, legal theories, legal systems, questions, debate and discussion about law from the experts and scholars all over the world. OUR AIM: Although it has been issued for four years now, the Journal of Legal Studies aims to become a debate and research forum in the following areas of interest: international law, European law, comparative law, Romanian law, case law studies, scholarly books reviews, reviews of books on other areas related to law. INTERNATIONAL DATA BASES: The Journal of Legal Studies was included in the following international data bases: HeinOnline; Index Copernicus; Ideas RePeC; Econpapers; Socionet; CEEOL (Central and Eastern European Online Library);  CrossRef; CrossCheck. IMPORTANTS DATE ROMANIA: The Journal of Legal Studies is listed in B+ category under the number 981 by CNCSIS. The Journal of Legal Studies is published by “Lumen” Publishing House, certified by CNCSIS Board (no. 003). The Romanian version of this Journal is available online, at jls.upa.ro The articled admitted for publication cannot be submitted to other publications. DEADLINES: The papers will be sent between: January 15- April, 15 for issues no. 1-2/June; July 1-October 15 for issues no. 3-4/December. The selection of the papers will be performed as soon as they have been received but no later than June 1 for issues no. 1 2/ June and November 1 for issues no. 3-4/ December. Bilingual Edition: English and Romanian CONTACT DATA: [email protected] CONTENTS: Top highlights of the Journal of Legal Studies: I. Comunity Law. Comparative Law.European Law.International Law II. Romanian Law III. Law and Related Sciences IV. Legal Practice V. Book reviews and Editorial Signals SELECTION AND PUBLICATION: Advisory Editorial Board is represented by a select committee of editors (law experts and professionals from various countries) that will examine and review the submitted articles. The scientific committee of the journal shall pass all received manuscripts through a provisory selection. The papers shall be selected and blindly reviewed at least by two referees. The Journal of Legal Studies aligns itself to a strictly blind reviewing peer process, implying that the author’s and the reviewer’s names shall be mutually held back during evaluation process. Each paper goes through at least two peer reviews. The final editorial decision shall be made in 4 to 6 weeks from the submission date. The peer review verdict may be phrased either as “accepted”/ “accepted with minor amendments”/ “accepted with substantial amendments” or “rejected”. OUR TARGET PUBLIC: The Journal of Legal Studies is meant for scholars and other members of the international academic community (students, BAs, MAs, PhDs), practitioners and law experts who are interested in various fields of law and in cognate sciences. We are indebted to all those who supported the Journal of Legal Studies editing and publication. We receive your submissions and subscriptions on [email protected]. This mail address is spam protected; you need to activate JavaScript in order to visualize it. Kindest regards, Executive Editor-in-Chief, Nadia -Cerasela Anitei INSTRUCTIONS FOR CONTRIBUTORS General instructions: The articles must be written both in English and Romanian for the Romanian contributors. All articles must contain an abstract which needs to comply with the following requests: it must sum up concisely the content of the article; it must be written in English; it must not exceed 5-20 lines. The abstract must be followed by 5-10 English key words. Content instructions: The article must be dense, well structured, and to represent a personal contribution of the author in the approached field, through the rejection or admission of previous expert opinions; it must contain, when the case needed, proposals of law bills; it must contain a set of conclusions and it must not exceed 15 pages. Drafting Conditions: The title: Garamond, 14, bold, centred capital letters. Authors / Co-authors: Name: Garamond, 12, italic, bold, on the right side at double line spacing from the title; First Name: Garamond, 12, italic, bold; After the name, an asterisk symbol with a footnote containing the author’s identification data: the academic degree, the academic title; institution Abstracts and key words: They must be written with Garamond, 11, italic, justified, double line spacing by the author’s name. The article: It must be written at single space line by the key words with Garamond, 12, justified, single space. When titles and subtitles requested they must be written in italics and be centred. Bibliographical notes: They will be written in their proper order in between brackets without special characters in Garamond, 12, in accordance with the following example: (Filipescu, (year), : 15-25); (Filipescu, I., P.,. Filipescu, A., (year), : 15-25). We mention that the colons represent the publication year as in the following example: Considerăm că prin regim matrimonial înţelegem totalitatea normelor juridice, care reglementează relaţiile sociale stabilite între soţi, sau între unul sau ambii soţi, pe de o parte, şi terţe persoane, pe de altă parte, relaţii ce au drept obiect bunuri existente în momentul căsătoriei sau dobândite pe parcursul acesteia precum şi obligaţii contractate în legătură cu aceste bunuri sau în vederea îndeplinirii sarcinilor căsătoriei.(Anitei, (2007), :37). We also mention that the titles of the books will not be translated from Romanian into English. Likewise, the Moldavian authors are requested to use the Latin alphabet for the bibliographical notes. The footnotes: They must be written without special characters in Garamond, 10. They will contain all the explanations, commentaries and definitions which the author considers compulsory for the proper understanding of the text. The bibliography: It must be grouped, where necessary, in the following sections: treatises, lectures, monographs; scientific articles; bodies of law; web pages. The bibliography must be written without special characters and in alphabetical order. E. g: Anitei, N.C., Lazar, R., E. (2011), Drept bancar, Editura Universul Juridic, Bucuresti, Romania. When journals, reviews or conference papers are quoted, the authors will be grouped alphabetically as follows: Anitei, N., C., (2010), Thoughts concerning the formal conditions needed for the contracting of marriage from the point of view of the stipulations in the new Civil Code in “Journal of Legal Studies”,Editura Lumen, Iasi, Romania. The article will be joined by a short presentation of the author which should highlight: the academic degree, the academic title, the employment information, the professional or research activity and also the mail address where he/ she will receive the journal. Caution! The Romanian version of the Journal of Legal Studies must observe the same drafting conditions, excepting the special characters in the text (the bibliography and the bibliographical notes will be written without special characters as well as in the English version). The titles of the articles must be written both in Romanian and in English. The abstract and the keywords must be written only in English.  Table of contents I. International Law.European Law. Comparative Law II. Romanian Law III. Law and Related Sciences IV. Legal Practice V. Book Reviews and Editorial Signals  I. International Law. European Law. Comparative Law   THE LAW APPLICABLE TO THE NULLITY OF ADOPTION IN ACCORDANCE WITH S.2610 ROMANIAN CIVIL CODE Article presented at the 11th INTERNATIONAL CONFERENCE “EXPLORATION, EDUCATION AND PROGRESS IN THE THIRD MILLENNIUM” 18th April 2019, Organized by: "DUNĂREA DE JOS" UNIVERSITY OF GALAŢI, ROMÂNIA FACULTY OF LEGAL, SOCIAL AND POLITICAL SCIENCES JURIDICAL, ADMINISTRATIVE, SOCIAL AND POLITICAL RESEARCH CENTER, UNIVERSITE PARIS-EST CRÉTEIL, FRANCE CENTRE D'ÉTUDES DU DÉVELOPPEMENT INTERNATIONAL DES TERRITOIRES (CEDITER), THE STATE UNIVERSITY “BOGDAN PETRICEICU HAŞDEU” CAHUL, REPUBLIC OF MOLDAVIA, ROMANIAN CROSS-BORDER INSTITUTE FOR INTERNATIONAL STUDIES AND CRIMINAL JUSTICE SCIENCES EUROPEAN DOCUMENTATION CENTER “DUNĂREA DE JOS UNIVERSITY”, http://www.fsjsp.ugal.ro/assets/documente/events/Book%20abstract%202019.pdf Nadia-Cerasela ANITEI PhD Univ. Prof. Faculty of Law, Social and Political Sciences, Dunărea de Jos University, Galați, Romania e-mail: [email protected]; [email protected] Abstract The article aims to study the law applicable to the nullity of adoption in terms of the following regulations: S.2.610 of the Romanian Civil Code with the marginal title "The law applicable to nullity", which states: "The nullity of adoption is subject, under the substantive conditions, to the law applicable to the substantive conditions, and for the non-observance of the formal conditions, the law applicable to the form of the adoption.” The article aims to answer the following questions: 1. What is the law applicable to the nullity of the background of adoption? 1. What is the law applicable to the nullity of the formal conditions of adoption? Key words: adoption, the law applicable to the nullity of the substantive conditions of adoption, the law applicable to the nullity of the formal adoption conditions, the Roman Civil Code. What is the law applicable to the nullity of the substantive conditions of adoption? The nullity of the adoption regarding the substantive conditions is provided by S.2610, part (I) of the Civil Code, which states: "The nullity of the adoption is subject, for the substantive conditions, to the laws applicable to the substantive conditions". The law applicable to the substantive conditions of the adoption (N.,C., Anitei, (2018) :17-20) is regulated by S.2609 C as follows: “The substantive conditions required for the conclusion of the adoption are established by the national law of the adopter and the one to be adopted. They must also meet the conditions that are mandatory for both, established by each of the two national laws mentioned. (paragraph 1) The substantive conditions required for the spouses to adopt together are those established by the law which governs the general effects of their marriage. The same law also applies if one spouse adopts the other's child. (Paragraph 2) " The nullity of adoption regarding the substantive conditions from the perspective of the Romanian private international law will consider the following situations: 1. The national law as the law applicable to the nullity of the substantive conditions necessary for the conclusion of the adoption for both the adopter and the adoptee; 2. The law applicable to the nullity of the substantive conditions necessary for the conclusion of the adoption in case of the spouses who adopt together but also if one of the spouses adopts the child of the other spouse; 3. Romanian law as the law applicable to the nullity of the substantive conditions of the adoption. The national law as the law applicable to the nullity of the substantive conditions necessary to conclude the adoption for both the adopter and the adoptee From the provisions of S.2607 (1), thesis (I), Civil Code corroborated with S.2610, part (I) Civil Code we observe that the law applicable to the nullity of the adoption for not fulfilling the substantive conditions at the conclusion of the adoption for both for the adopter and the adoptee will be the national law of each in the matter of nullity of the substantive conditions. Studying the provisions of the thesis (II) of S.2607 (1) Civil Code corroborated with S.2610, part (I) Civil Code find that if the adopter and the adoptee do not fulfil in addition the special ("mandatory") conditions established by the national law of each, the law applicable to the nullity of the adoption will be: The common national law is applicable to the nullity of the substantive conditions of the adoption as well as to the mandatory conditions established for adoption for both the adopter and for the adoptee, both with the same citizenship that concluded the adoption in the Romanian territory. For example, two English nationals have concluded the adoption on Romanian territory and we find that the adoption does not meet the substantive conditions and meets the special ("mandatory") ones or does not meet the substantive conditions, or neither the substantive conditions nor the special conditions ("mandatory") we will apply the English law to the nullity of the substantive conditions of the adoption as well as to the mandatory conditions; The national law of each of the two spouses is applicable to the nullity of the substantive conditions of the adoption as well as to the mandatory conditions established for adoption for both the adopter and for the adoptee, both with different citizenships if they have concluded the adoption in the territory of Romania. If on the territory of Romania is found that the adopter (French spouses) and the adoptee (Italian) who have different citizenships, but foreign, breached the legal norms regarding the substantive conditions and the special conditions ("mandatory") we will apply regarding the nullity of the substantive conditions but also of the special conditions ("mandatory") established by the national law of each of them, respectively the French law that regulates the substantive conditions of the adoption and the special conditions ("mandatory") and the Italian law that regulates the substantive conditions of the adoption and the special conditions ("mandatory") c. The national law of each of the two spouses is applicable to the nullity of the substantive conditions of the adoption as well as to the mandatory conditions established for the adoption and in the situation in which the adopter and the adoptee have different citizenships, of which one is a Romanian citizen and the other a Spanish citizen in the situation in which they have concluded the adoption on the Romanian territory with the non-observance of the substantive conditions but also the mandatory conditions established by the national law of each of them. 1.2. The law applicable to the nullity of the substantive conditions necessary for the conclusion of the adoption in the case of spouses who adopt together but also if one of the spouses adopts the child of the other spouse From the provisions of S.2607 (2) Civil Code corroborated with S.2610, (I) Civil Code, we notice that in the case of the spouses who have adopted together but also if one of the spouses has adopted the other's child in the matter of nullity of the substantive conditions, the law that governs the general effects of marriage shall apply The general effects of the marriage from the perspective of the Romanian private international law are regulated by S.2589 with the marginal name "The law applicable to the general effects of marriage" states: "The general effects of marriage are subject to the law of joint habitual residence of spouses, and in its absence, the law of joint citizenship of spouses. In the absence of the joint citizenship, the law of the state on the territory of which the marriage was celebrated applies. (paragraph 1) The law determined according to paragraph (1) applies both to the personal effects and to the patrimonial effects of the marriage that this law regulates and from which the spouses cannot derogate, regardless of the matrimonial regime chosen by them. (paragraph 2) By exception from the provisions of paragraph (2), the rights of the spouses on the family home, as well as the regime of some legal acts on this housing are subject to the law of the place where it is located. (paragraph 3). . Applying by analogy the provisions of S.2589 Civil Code to the provisions of S.2607 (2) of the Civil Code, corroborated with the provisions of S.2610, part (I) Civil Code we find that the following laws will be applied in order, without being derogated to the nullity of the substantive conditions of the adoption: 1. the law of joint habitual residence of spouses, and in its absence, 2. the law of joint citizenship of spouses, and in its absence, 3. the law of the State on the territory of which the adoption was concluded. Studying the above-mentioned provisions, we observe that we have the following situations regarding the law applicable to the nullity of the substantive conditions of the adoption, both in case of the spouses who adopt together but also if one of the spouses adopts the child (children) of the other spouse: 1. The law of joint habitual residence of spouses applies to the nullity of the substantive conditions of adoption in the following cases: a. the spouses have common citizenship (for example, two Moldovan spouses); b. the spouses have different citizens (for example, a spouse is a Moldovan citizen and a spouse is a French citizen); c. Spouses are stateless. 2. The law of joint citizenship of spouses applies to the nullity of the substantive conditions of the adoption only if the spouses do not have habitual residence (for example, one of the spouses resides in Romania and the other spouse resides in Spain), but they have the same nationality. 3. The law of the state on the territory of which the marriage was celebrated applies to the nullity of the substantive conditions of the adoption in the following cases: a. The spouses have different residences; b. spouses have different citizenships; c. Spouses are stateless. 1.3. What are the situations in which the Romanian law is applied as the law of the nullity to the substantive conditions of the adoption? From the provisions of S.2607 Civil Code, corroborated with the provisions of S.2610, part (I) Civil Code it follows that the Romanian law governs the nullity of the substantive conditions of the adoption in the following situations: 1. in the situation where the law of the joint habitual residence of the spouses is in Romania the nullity of the adoption regarding the substantive conditions is governed by the Romanian law in the following cases: a. spouses have joint citizenship (for example, two spouses of Italian citizenship); b. the spouses have different citizenships (for example, a spouse is a Moldovan citizen and a spouse is a French citizen); c. spouses are stateless. 2. in the situation in which the two spouses are Romanian citizens and have different residences (for example one of the spouses resides in Romania and the other spouse resides in Spain) the Romanian law is applied as the law of nullity of the substantive conditions of adoption. 3. In the situation where the Romanian law is the one that governs the patrimonial effects of the marriage if the marriage was celebrated on the territory of Romania, in compliance with the conditions imposed by the Romanian law, this law applies, namely the Romanian law as the law of the nullity of the substantive conditions of the adoption. From the perspective of the Romanian private international law, the law applicable to the nullity of the substantive conditions of the adoption must also be studied in the light of the following regulations: the revised European Convention on the adoption of children from Strasbourg Law 138 2011 for the ratification of the revised European Convention on the adoption of children, adopted in Strasbourg on November 27, 2008 and signed by Romania in Strasbourg on March 4, 2009, published in the Official Gazette no. 515 / 21.07.2011 of 27.11.2008, the Hague Convention on the protection of children and cooperation in respect of intercountry adoption Law no. 84 of 18.10.1994 for ratifying The Hague Convention on the protection of children and cooperation in respect of intercountry adoption published in the Official Gazette no.298 / 21.10.1994. from 29.05.1993 and Law no. 273/2004 regarding the adoption procedure Applicable form from April 19, 2012 to September 22, 2016, being replaced by republishing in the Official Gazette, Part I no. 739/23.09.2016. From these provisions we observe that regarding the law applicable to the nullity of the substantive conditions of the adoption we will consider: 1. for Romania and the signatory states of the revised European Convention on the adoption of children from Strasbourg, the application as norms of immediate application of the provisions referring to the nullity of the substantive conditions of the adoption, corroborated, where appropriate, with the provisions of S.2.607-2.610 Civil Code, S.453 Civil Code and Law no. 273/2004 as subsequently amended and supplemented; 2. for Romania and the signatory states of The Hague Convention on the protection of children and cooperation in respect of intercountry adoption, the application as norms of immediate application of the provisions regarding the nullity of the substantive conditions of the adoption, corroborated, where appropriate, with the provisions of S.2.607-2.610 Civil Code, S.453 Civil Code and Law no. 273/2004 as subsequently amended and supplemented; 3. for Romania and the rest of the states, which are not signatories to any of the conventions, we will apply in the matter of the nullity of the substantive conditions: S.2.607-2.610 Civil Code, S.453 Civil Code and Law no. 273/2004 as subsequently amended and supplemented. What is the law applicable to the nullity of the form condition of adoption (N.,C., Anitei, (2018) :19-41)? The nullity of the adoption regarding the conditions of form is provided by S.2610, part (II) of the Civil Code, which states: “The nullity of the adoption is subject…. for non-observance of the conditions of form, the law applicable to the form of adoption.” The law applicable to the adoption form is regulated by S.2609 Civil Code as follows: "The form of adoption is subject to the law of the state on the territory of which it is concluded." Corroborating the provisions of S.2610, part (II) Civil Code with the provisions of S.2609 Civil Code regarding the law applicable to the nullity of the conditions of form of the adoption we have the following situations: 1. the foreign law will regulate the nullity of the adoption form in case the adoption was concluded with the non-observance of the formal conditions abroad. For example, if the adoption is concluded in France on the conditions of form and the non-observance of the conditions of form is observed, the law which will govern the nullity of the conditions of form will be the French law; 2. the Romanian law will regulate the nullity of the adoption form in case the adoption was concluded with the non-observance of the conditions of form on the territory of our state. From the perspective of the Romanian private international law, the law applicable to the nullity of the conditions of form of the adoption must also be studied in the light of the following regulations: the revised European Convention on the adoption of children from Strasbourg, The Hague Convention on the protection of children and cooperation in respect of intercountry adoption and Law no. 273/2004 regarding the adoption procedure. From these provisions we observe that regarding the law applicable to the nullity of the conditions of form of the adoption we will consider: 1. for Romania and the signatory states of the Revised European Convention on the adoption of children from Strasbourg, the application as norms of immediate application of the provisions referring to the nullity of the conditions of adoption, corroborated, where appropriate, with the provisions of S.2.607-2.610 Civil Code, S.453 Civil Code and Law no. 273/2004 as subsequently amended and supplemented; 2. for Romania and the signatory states of The Hague Convention on the protection of children and cooperation in respect of intercountry adoption, the application as norms of immediate application of the provisions regarding the nullity of the conditions of form of adoption, corroborated, where appropriate, with the provisions: S.2.607-2.610 Civil Code., S.453 Civil Code and Law no. 273/2004 as subsequently amended and supplemented; 4. for Romania and the rest of the states, which are not signatories to any of the conventions, we will apply in the matter of the nullity of the formal conditions of the adoption: S.2.607-2.610 Civil Code, S.453 C civ and Law no. 273/2004 as subsequently amended and supplemented. Conclusions From the perspective of the Romanian private international law, the law applicable to the nullity of the substantive and form conditions of the adoption were studied in terms of the following regulations: S.2.607-2.610 Civil Code, S.453 Civil Code, the Revised European Convention on the adoption of children from Strasbourg, Hague Convention on the protection of children and cooperation in respect of intercountry adoption and Law no. 273/2004 regarding the adoption procedure as subsequently amended and supplemented. Bibliography Articles Anitei, Nadia-Cerasela. (2018) Legea aplicabilă condițiilor de fond ale adopției potrivit art. 2607 alin. 1 și alin. 2 din Codul Civil al României (The law applicable to the substantive conditions of the adoption according to S.2607 (1) and (2) of the Romanian Civil Code) Revista Moldoveneasca de Drept international si Relatii internationale/ Moldavian Journal of International Law and International Relations/ Молдавский журнал международного права и международных отношений, no.1-2 pp. 17-20. http://usem.md/uploads/files/Activitate_%C8%98tiin%C8%9Bific%C4%83_USEM/rmdiri/RMDIRI_2018_Nr_1-2.pdf Anitei ,Nadia-Cerasela.(2018) Forma adopţiei în dreptul internaţional privat roman (Adoption form in Romanian private international law), Revista Romana de Drept privat, no 3, coordinator Calina Jugastru, Universul Juridic Publishing House, Bucharest ISBN 1843-2646, pp. 19-41. http://www.rrdp.ro/ Legislation Romanian Civil Code adopted by Law no. 287 of July 17, 2009 and republished with amendments on July 15, 2011 in the Official Gazette Part I no. 505-2011. Law 138 2011 for the ratification of the revised European Convention on the adoption of children, adopted in Strasbourg on November 27, 2008 and signed by Romania in Strasbourg on March 4, 2009, published in the Official Gazette no. 515/21.07. 2011. Law no. 84 of 18.10.1994 for ratifying Hague Convention on the protection of children and cooperation in respect of intercountry adoption published in the Official Gazette no.298/21.10.1994. Law no. 273/2004 regarding the adoption procedure applicable form from April 19, 2012 to September 22, 2016, being replaced by republishing in the Official Gazette, Part I no. 739 / 23.09.2016. UNION LEGAL FRAMEWORK ON COMBATING FRAUDS AGAINST THE FINANCIAL INTERESTS OF THE EUROPEAN UNION Elise-Nicoleta VÂLCU Associate Professor PhD, Faculty of Economics Sciences and Law, University of Pitesti, Pitesti (Romania), [email protected] Abstract Illegal activities that affect the financial interests of the European Union are, in most cases, transnational, being committed by criminal groups that know the legislative vulnerabilities of some Member States. An efficient fight against these types of illicit actions cannot be achieved only by a regulation and implementation at national level, in other words by the presence of national criminal legislation but by a harmonization of criminal laws in the field, respectively by a common definition at the union level, and implicitly by the creation of the appropriate legal framework regarding the offenses directed against the financial interests of the European Union. Thus, the need arose for the common definition of the offenses directed against the financial interests of the European Union, as well as the creation of a similar sanctioning system at the level of the Member States.      The provisions of the Directive 2017/1371 on combating fraud directed against the financial interests of the Union by means of criminal law are in accordance with the Union law in the field deduced from the analysis, so the Union norm establishes minimum rules regarding the definition of crimes and sanctions regarding the fight against fraud and other illegal activities which affect the financial interests of the European Union. Keywords: fraud, financial interests, union funds, active corruption, passive corruption. Introductory considerations regarding the evolution of the Union and national regulations referring to the protection of the financial interests of the European Union The policy of the European Union in the field of the protection of the financial interests of the European Union is subject to the measures of legislative harmonization, so that, in this field, we retain a broad legislative framework from which we identify the PIF The European Convention on the protection of the financial interests of the European Communities was adopted on the basis of art. K.3 of the TEU, become art.31 by the Treaty of Nice, replaced by art.82, art.83 and art.85 of the TFEU. Convention followed by three protocols, namely the Union directives, sources of secondary Union law, each addressing from a cross-border perspective the scourge of corruption, but also provisions of primary union law. The main source of primary law in this matter is the Treaty on the Functioning of the European Union, regarding the protection of the financial interests of the EU, art. 325 regulating the issue of the involvement of the Member States in the fight against fraud. Specifically, the European Union and the Member States fight fraud and any other illegal activity that harm the financial interests of the Union through measures taken in accordance with that Article, measures that deter fraud and provide effective protection in the Member States. As regards secondary Union law, we recall Directive 91/308 / EEC, which defined money laundering according to drug offenses and imposed obligations exclusively on the financial sector. Subsequently, Directive 2001/97 / EC extended the scope of Directive 91/308 / EEC both in terms of offenses and in the range of professions and activities concerned.   In June 2003, the International Financial Action Task Force (FATF) revised its recommendations to include in the category of offenses and terrorist financing and formulated more detailed requirements regarding customer identification and verification, situations where an increased risk of money laundering or terrorist financing can justify increased measures and also situations where low risk may justify less rigorous controls. These changes were reflected in Directive 2005/60 / EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and terrorist financing and in Commission Directive 2006/70 / EC establishing measures to implementation of Directive 2005/60 / EC of the European Parliament and of the Council as regards the definition of "politically exposed persons" and the technical criteria for applying the simplified precautionary procedures for clients, as well as for the exemption on account of financial activity in occasionally or on a very limited scale. Directive 2015/849 / EU on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing is the fifth directive that addresses the problem represented by money laundering. The provisions of Directive 2017/1371 Member States have the obligation to adopt and publish by 6 July 2019 laws, regulations and administrative provisions in order to comply with this Directive. They shall forthwith communicate to the Commission the text of those measures. Member States shall apply these measures from 6 July 2019. on combating fraud directed against the financial interests of the Union by means of criminal law are in accordance with the Union law in this matter, so the Union law establishes minimum rules regarding the definition of crimes and sanctions regarding the fight against fraud and other illegal activities that bring harm to the financial interests of the Union. The PIF Convention gives a common definition of fraud affecting the Union's expenditure and revenue. And at the level of the Council of Europe, there is a constant concern about the fight against this scourge called widespread corruption in the Member States. Thus we retain in this regard the Criminal Convention of the Council of Europe The criminal convention of the Council of Europe defines corruption in the two modes of committing: a) activating corruption represents the promise, offering or giving, with intent, of any person, directly or indirectly, of any undue use to an official, for himself or for another, in order to fulfil or abstain from performing an act in the exercise of its function; b) passive corruption represents the request or the receipt, with intent, by a public official, directly or indirectly, of an undue use, for himself or for another, or the acceptance of an offer or promise of such use, in order to fulfil or refraining from performing an act in the exercise of its function; see in this regard, Adrian Petre, Valentin Trif, Constatarea infractiunilor de coruptie, Editura C.H. Beck, 2016, p.2 adopted at Strasbourg on January 27, 1999, ratified by Romania by Law no. 27/2002. According to the Convention, corruption is identified at both public and private level The criminal code distinctly incriminates the acts of corruption in the private environment by regulating the art.308 C penal.. Regarding the qualification of the active subject within these acts of corruption, we note that they can be committed by national civil servants, foreigners, parliamentarians, foreigners, international officials as well as by persons representing international organizations. In the Romanian specialty literature, corruption was individualized in the following forms: abuse of power in the exercise of the duties of service; fraud (deception and prejudice of another person or entity); the use of illicit funds in financing political parties and electoral campaigns; favouritism; establishing an arbitrary mechanism for exercising power in the field of privatization or public procurement; conflict of interest. The forms of corruption were first included in a normative act in 2001 under H.G. no. 1065/2001 regarding the approval of the National Program for the prevention of corruption and of the National Action Plan against corruption By H.G. no.583 / 2016 one approved the National anticorruption strategy for the period 2016-2020, the new strategy putting the acceptance on the preventive measures in order to prevent the corruption facts... At national level, at present, the framework law which includes provisions regarding the protection of the financial interests of the European Union is Law no. 78 of May 8, 2000 updated in 2016, for the prevention, discovery and sanctioning of corruption acts. Categories of offenses affecting the financial interests of the European Union regulated by Directive (EU) 2017/1371 on combating fraud directed against the financial interests of the Union by means of criminal law For the purposes of this rule "financial interests of the Union" means all the revenue, expenditure and assets that are included, collected or due, as the case may be, either to the budget of the Union or to the budgets of the institutions, bodies, offices and agencies of the European Union. a) Offenses concerning frauds that harm the financial interests of the European Union See in this regard Article 1 of the Convention elaborated on the basis of Article K3 of the Treaty on European Union regarding the protection of the financial interests of the European Communities of 26 July 1995. . Article 3 paragraph 1 of the Union law stipulates that ''fraud that infringes the financial interests of the Union constitutes an offense when committed intentionally''. For the purposes of this Directive, frauds affecting the financial interests of the Union are considered to be those acts: a) in connection with expenses that are not related to the acquisition, any action or inaction regarding:: a.1. the use or presentation of false, incorrect or incomplete statements or documents, resulting in the misappropriation or withholding of funds or assets from or on behalf of the Union budget or the budgets managed by the Union; a.2. disclosure of information, in violation of a specific obligation, having the same effect; a.3. improper use of such funds or assets for purposes other than those for which they were initially granted b) in connection with the expenses related to the acquisitions, at least if it is committed in order to obtain an illegal profit for the author or for another person, by causing a loss in the financial interests of the Union, any action or inaction regarding: b.1. the use or presentation of false, incorrect or incomplete statements or documents, resulting in the misappropriation or withholding of funds or assets from or on behalf of the Union budget or the budgets managed by the Union; b.2. non-disclosure of information, in violation of a specific obligation, having the same effect; b.3. improper use of such funds or assets for other purposes than the one for which they were initially granted, which harms the financial interests of the Union; c) in relation to income other than those obtained from their own VAT resources any action or inaction regarding: c.1. the use or presentation of false, incorrect or incomplete declarations or documents, having the effect of illegally diminishing the resources of the Union budget or of the budgets managed by the Union or on its behalf; c.2. non-disclosure of information, in violation of a specific obligation, having the same effect; or c.3. improper use of a legally obtained benefit, having the same effect; d) as regards the income obtained from its own VAT resources, any action or inaction committed under fraudulent schemes of a cross-border nature regarding: d.1. the use or presentation of false, incorrect or incomplete VAT declarations or documents, having the effect of diminishing the resources of the Union budget; d.2. non-disclosure of VAT information, thus violating a specific obligation, having the same effect; or d.3. presenting correct VAT declarations to mask fraudulently non-payment or the establishment of undue rights to VAT refunds. b) Money laundering Another act incriminated by this rule is money laundering as described in Article 1 (3) of Directive (EU) 2015/849. Specifically, the following acts represent money laundering, when committed intentionally: b.1. - the exchange or transfer of goods, knowing that the goods come from an criminal activity or from an act of participation in such an activity, in order to hide or disguise the illicit origin of the goods or to support any person involved in committing that activity in order to avoid the legal consequences of the action of the respective person Art.1 paragraph (3) (a) of the Directive (EU) 2015/849 regarding the prevention of the use of the financial system for the purpose of money laundering or terrorist financing b.2.- The hiding or concealment of the true nature, source, location, location, movement or ownership of the goods or rights on these goods, knowing that the goods come from an criminal activity or from an act of participation in such an activity; Art.1 paragraph (3) (b) of the Directive (EU) 2015/849 regarding the prevention of the use of the financial system for the purpose of money laundering or terrorist financing b.3.- acquisition, possession or use of goods, knowing, at the date of their receipt, that they come from different offence activities b.4.- in any of the actions mentioned in letters (b.1.), (b.2.) and (b.3.), the association for their commission, the attempt to commit and the assistance, instigation, facilitation and counseling with a view to committing the said actions. Art.1 paragraph (3) (c) of the Directive (EU) 2015/849 regarding the prevention of the use of the financial system for the purpose of money laundering or terrorist financing Directive (EU) 2015/849, after presenting the facts incriminated as money laundering offenses, makes a clear mention that it is subject to the provisions of this Union norm including the situation in which the activities that generated the goods to be laundered were carried out on the territory of another Member State or of a third country. c) Passive corruption and active corruption They are crimes when committed intentionally. For the purposes of this Directive "active corruption" means the action of a person who, directly or through an intermediary, promises, offers or grants benefits of any kind to a public official, for himself or for a third party, to act or to refrain from acting in accordance with his/her tasks or in the exercise of his/her tasks, in a manner which prejudices or is likely to harm the Union's financial interests. "Passive corruption" means the action of a civil servant who, directly or through an intermediary, seeks or receives benefits of any kind, for himself or for a third party, or accepts a promise regarding such an advantage to act or to refrain from acting in accordance with his duties or in the exercise of his duties, in a manner which prejudices or is likely to harm the financial interests of the Union. The approach of the two concepts by the present rule is closely linked to the inclusion in the category of offenses that harm the financial interests of the Union of the money laundering offence as described in Article 1 (3) of Directive (EU) 2015/849. d) The embezzlement of funds According to article 4 paragraph (3) the embezzlement of funds constitutes an offense, when committed intentionally.  For the purposes of this Directive, "misappropriation of funds" means the action of a public official who is directly or indirectly entrusted with the management of funds or assets, for the purpose of committing or paying the funds or to acquire or use assets contrary to the purpose envisaged in any way that prejudices the financial interests of the Union.  It should be mentioned that the civil servant belongs to the category of union officials and the category of national officials. Specifically the terms are defined as follows: a) '' national official '' is both the official of any EU member state and any national official of a third country. Specifically, the term "national official" includes any person who holds an executive, administrative or judicial function at national, regional or local level, respectively any person who holds a legislative function at national, regional or local level. b) "Union official" means a person who: b.1) is an official or other agent employed by the Union under a contract, within the meaning of the Staff Regulations and the Regime applicable to the other agents of the European Union provided for by Regulation (EEC, Euratom, ECSC) no. 259/68 of the Council(1) (hereinafter referred to as the "Staff Regulations"); or b.2) it is seconded to the Union by a Member State or by any public or private body, which carries out tasks equivalent to those performed by officials or other agents of the Union. c) any other person who has been entrusted with and performs a public service function which involves the management of the financial interests of the Union in the Member States or in third countries or the taking of decisions thereon. Recommendations for sanctioning the offenses regulated by the Union norm, made to the Member States when the active subject is the natural person As regards natural persons Article 7 of Directive (EU) 2017/1371, the Union directive recommends to the Member States the establishment by transposition rules for each of the three categories of offenses, maximum penalty of at least four years of imprisonment when they involve a significant injury or advantage. The damage or advantage resulting from the commission of the offenses is considered significant when it is quantified more than 100,000 euro. Where one of the offenses listed above involves damage or an advantage of less than EUR 10,000, Member States may provide for penalties of a different nature than criminal penalties. Recommendations for sanctioning the offenses regulated by the Union norm, made to the Member States when the active subject is the legal person Article 6 regulates the criminal liability of legal persons for the same crime, committed for their benefit by any person who acts either on his own account or as part of an organ of the respective legal body and who holds a leading position with different powers, as the case may be, either to take decisions or to exercise control within the respective legal person. Also, the criminal liability of legal persons intervenes, when the lack of supervision or control by a person mentioned above has made it possible for a person under his authority to commit any of the offenses mentioned in the present analysis, producing benefit to the respective legal person.  It is important to remember that, in no case, attracting the criminal liability of the legal person does not exclude the criminal liability of the natural persons who are, as the case may be, perpetrators, accomplices or instigators of the present crimes according to art.5alin.1 of this directive '', the instigation and complicity in committing any of the mentioned offenses are punished as offenses”. The criminal liability of the legal person can be accompanied by other sanctions, such as: exclusion from public benefits or aid; temporary or permanent exclusion from public tender procedures; temporary or permanent prohibition to conduct commercial activities; placement under judicial supervision; judicial liquidation; temporary or permanent closure of the units that served in the commission of the crime. Regarding the damage or the advantage resulting from the offenses mentioned by the legal person, the EU norm recommends a threshold of EUR 100,000 for attracting criminal liability. On the contrary, if the commission of the offenses involves a damage of less than EUR 10,000 or an advantage of less than EUR 10,000, the EU directive recommends that Member States apply sanctions of a different nature than the criminal one. We consider as an exception the case of serious offenses against the common VAT system consisting of intentional actions or inactions committed in fraudulent schemes of a cross-border nature, for which a damage of at least EUR 10 000 000 is foreseen. The retention of the cross-border character in committing any of the offenses tackled within the present material constitutes an aggravating circumstance, thus according to art. 8 of the directive "when an offense referred to in Articles 3, 4 or 5 is committed within a criminal organization within the meaning of Framework Decision 2008/841 / JHA, it is considered an aggravating circumstance". In order to confiscate the instruments and products obtained as a result of the offenses referred to in this Article, the Member States have the obligation to take the measures regulated by Directive 2014/42 / EU on the freezing and confiscation of the instruments and products of the crimes committed in the European Union The current Union legislative framework on freezing, seizure and confiscation of assets consists of Joint Action 98/699 / JHA, Council Framework Decision 2001/500 / JHA, Council Framework Decision 2003/577 / JHA, Framework Decision 2005/212 / JHA, and Council Framework Decision 2006/783 / JHA. Directive 2014/42 / EU on the freezing and confiscation of the instruments and products of offenses committed in the European Union complements the EU legal framework. For the purposes of this Directive, the terms of confiscation and freezing are defined as follows: "confiscation" means a definitive disposal of goods ordered by a court in connection with a crime; "Freezing" means the temporary prohibition of the transfer, destruction, transformation, alienation, movement of goods or temporary assumption of custody or control over the goods. . Conclusions We believe that with the regulation of this Directive, a coherent and stable legislative framework is envisaged. Both the Union legislature and the specialized doctrine unanimously accept that these frauds affect both the revenues and the expenses of the European Union, and moreover, they are committed by organized criminal networks operating on several state territories, thus making the anti-fraud fight unfolded at both the institutional level as well as at the level of each member state of the European Union. The protection of the Union's financial interests implies an increased institutional interest at the preventive level, which materialized in chasing fraudulent behaviour.         We believe that with the regulation of this Directive, Romania has the obligation to transpose this Union norm, imposing the amendment of Law 78/2000 the internal framework norm in the matter, considering the creation of a coherent and stable legislative framework. Bibliography Legislation Directive (EU) 2017/1371 of the Parliament and of the Council of 5 July 2017 on combating fraud directed against the financial interests of the Union by means of criminal law Directive 2014/42 / EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instruments and proceeds of offenses committed in the European Union (OJ L 127, 29.4.2014) Framework Decision 2008/841 / JHA of 24 October 2008 on combating organized crime (OJ L 300, 11.11.2008) Convention drawn up pursuant to Article K3 of the Treaty on European Union on the protection of the financial interests of the European Communities Law no. 78 of May 8, 2000, updated in 2016, for the prevention, discovery and sanctioning of corruption facts H.G. no. 1065/2001 regarding the approval of the national program for the prevention of corruption and the national action plan against corruption (M.Of. no. 728 of November 15, 2001) H.G. no.583 / 2016 regarding the approval of the national anticorruption strategy for the period 2016-2020 (M.Of. no. 644 from August 23, 2016) JUDICIAL CONTROL OF STATE EXECUTIVE POWER Blerton SINANI Assistant Professor in the scientific-juridical area of Constitutional and Administrative Law at the Faculty of Law of the South East European University, Republic of North Macedonia, e-mail: [email protected] Abstract Many analyses and international reports point out that there is a significant lack of judicial control over the state executive power in the Republic of North Macedonia. This article aims to analyze the deficiencies that contribute to the lack of control, and special attention is also devoted to the administrative judiciary as a basic external form of providing judicial control over the legality of the decisions of public authorities and their officials, in order to ensure objective legality, as well as the protection of individual rights of citizens against unlawful administrative acts and actions of public administration. The first part of the article focuses on challenges for judicial control of the executive government. It shows the results of semi-structured interviews conducted with 36 stakeholders such as judges and prosecutors about the limits to judicial control of the executive. The second part focuses on weaknesses and challenges of the administrative judiciary, and makes proposals on how to improve the administrative judiciary as a special type judiciary within the framework of the judicial system of the Republic of North Macedonia. Therefore, it presents a crucial illustration to detect the specific problems and to offer possible solutions. Key words: judicial control; rule of law; democracy; administrative judiciary. INTRODUCTORY REMARKS In opening major international conference on judicial protection against executive in 1968, the president of the German Federative Constitutional Court defined the constitutional state as ”a state in which the system of government is, at least in principle, understood as a system ruled by law”. In such a system of government the essential features are “the subjection of the supreme power to the law, the separation of powers and the respect for the general, basic rights of man”. (Gebhard Muller, (1972) :2). In their attempts to create a viable constitutional organization of state power, after the collapse of the socialist system the new East European democracies, began to reinstall the universal values of the classical constitutional law (the principle of the rule of law, the separation and balance of state powers among the legislature, the executive and judiciary, the political pluralism as the fundamental basis for a free and democratic society, free market economy, etc.). These changes have also included the gradual opening of their internal legal systems and their adaptation to the dynamic developments in the international and European law. The protection of human rights has been of profound importance in this context and it has become one of the most critical conditions for the new democracies in their accession to the new regional and global legal order. ( Petar Bačić, (2007), :164; Oliver De Schutter, (2010): 23-25). In other words, the constitutional state resting on the ideology of the rule of law Emphasis will be placed on three related but separate ideas. First, statements of the rule of law embody a preference for orderly life within an organized community (“law and order”), rather than a situation of anarchy or strife in which there is no security for persons, their well-being or their possessions. Some stability in society is a precondition for the existence of a legal system. Second, the rule of law expresses a principle of fundamental importance – principle of legality , namely that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decision. Third, the rule of law refers to a body of opinion, both about what powers the government should have (for example, that the executive should have no power to detain without trial) and about the procedures (due process of law) to be followed when action is taken by the state (for example, the right to a fair hearing in criminal trials). (Anthony Bradley, Keith Ewing, (2003): 95-96) is characterized by the doctrine of tripartite state power, legal protection in a formal sense (the principle of legality), the legal protection of an individual by the state and other individuals, the concept of judicial discretion as a syllogistic form combining with a certain scale of legalism as general politics (spirit of law prevails to other arguments), and formal justice with the concept of formal equality before the court. ( Arsen Bačić, Petar Bačić, (2009): 12). The strongest expression of the link between constitutionalism and the separation of powers principle was made in the French Declaration of the Rights of Man, where it was asserted that: Any society in which the safeguarding of rights is not assured, and the separation of powers is not established, has no constitution. This is also the value underlying the classic principle of the separation of powers formulated by the French jurist, Montesquieu, in L’Esprit des Lois. If the same person or body exercised both legislative and executive powers, he argued, society would fear tyranny through the ruthless enforcement of oppressive laws by the authority which had enacted them. For the same reason, the judiciary should be independent of the legislature and executive. (Eric Barendt, (1998): 4-14; Arsen Bačić, (2006): 212-215; Arsen Bačić, (1990}:11-69) According to the doctrine of the separation of powers, each branch has different functions but each uses its power to police the limits of the others. As Montesquieu famously stated, “power must be checked by power”. Indeed, it may be argued that essential values of law, liberty and democracy are best protected if the three primary functions of a law-based government are discharged by distinct state institutions. A lawmaker issues general rules, the executive implements the law and makes government policy, a judge acts as an independent referee by applying rules to a dispute. This threefold division of labour, between a legislator, an administrative official, and an independent judge, is a necessary condition for the rule of law in modern society and therefore for democratic government itself. Conversely, within the limits of its powers, each branch should be independent of the others. (John Alder, (2007): 172) Separation of powers concerns the independence of the judicial system from other branches of government. The need for a separation of powers arises not only in political decision-making but also in the legal system, where an independent judiciary is essential if the rule of law is to have any substance. Namely, central to the rule of law in a modern democratic society is the principle that the judiciary must be, and must be seen to be independent of the executive. The proper constitutional relationship between the executive and the judiciary is that the judiciary will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the judiciary as to what its lawful province is. ( Trevor Allan, (2001): 31-52; Eric Barendt, (1998): 14). In the North Macedonia constitution of 1991 the separation of powers formed one pillar of the new edifice. The framers of the constitution intended that a balance of powers should be attained by vesting each primary function in a distinct organ. The North Macedonia constitution vests legislative power in Parliament (law-making), executive power (law-executing) in the Government and Head of State (“bicephalic"/two heads quality of the state executive branch - with prime minister and president) and judicial power (law-adjudicating) in the courts. ( Светомир Шкариќ, (2014): 150-151). The concept of separation of powers may mean at least three different things: that the same persons should not form part of more than one of the three organs of government, for example, that ministers should not sit in Parliament; that one organ of government should not control or interfere with the work of another, for example, that the executive should not interfere in judicial decisions; that one organ of government should not exercise the functions of another, for example, that ministers should not have legislative powers. (Anthony Bradley, Keith Ewing, (2003): 84). SOME CONCEPTUAL ISSUES CONCERNING RULE OF LAW AND JUDICIARY The improvement of the judicial system and its functioning is a key prerequisite for the development of the Republic of North Macedonia as a democratic state of the rule of law and a multicultural society of citizens with equal rights and freedoms and for its Euro-Atlantic integration. The development of a system of autonomous, independent and impartial judiciary and institutions that gravitate towards the achievement of its function of effective, quality and equitable justice is a central postulate of the principle of the rule of law and the humane and sustainable development of the Macedonian society as a community based on the right legitimized by respecting the highest universal civilization values. Moreover, the significance of the judiciary in a (liberal) democracy has been lauded countless times and thus it is believed to be a key element and an indicator of how well а democracy functions. On the other hand, the judiciary system is exceptionally important in the European integration process where, in line with the ‘new approach’ to the accession negotiations, it is one of the vital requirements for the future European Union membership. The judiciary is important in the enlargement process, but it is perhaps even more important in the period following the country’s accession to the European Union because it will be crucial in application of European Union law in the Republic of North Macedonia. Due to the substantial significance of the judiciary, one of the key priorities of the Government of the North Macedonia is judiciary reform. To that effect, it recently adopted the 2017-2022 Judicial Reform Strategy, including an action plan. (Denis Preshova, (2018) :3-4). The court system of the Republic of North Macedonia follows two principles. The idea of specialization (horizontal structure) and the principle of hierarchy (vertical structure). The Republic of North Macedonia has different branches of jurisdiction with different powers: - The ordinary judiciary (Basic Courts, Basic courts are courts of first instance and are established to cover one or more municipalities. Appellate Courts Appeal courts are established to cover the territory of one or more basic courts and they act as courts of second instance to basic courts for civil and criminal matters. and the Supreme Court Supreme Court is the highest court in North Macedonia and is competent to decide on extraordinary judiciary remedies in all kinds of public law and private law matters.) decides civil and criminal cases; - The administrative judiciary (Administrative Court and Higher Administrative Court) is exclusively designated for matters of administrative law such as deciding cases of all kinds of non-constitutional public law matters. Typical examples of actions brought before the general administrative judiciary are disputes arising from laws relating to building, traffic, trade and industry, social insurance, custom, education, protection of the environment, project planning and civil service matters; (Кирил Чавдар, Кимо Чавдар, (2013) :18.; 64-66.) - The constitutional justice is installed outside of the state judicial power, and it is a specific autonomous state organ that has the duty to oversee the applicability of the constitution by other public authorities. It protects the constitutionality, legality, and the fundamental legal principles (values) of the constitutional order of the state. It also protects certain human rights and freedoms guaranteed and foreseen by the constitution. The constitutional court is the last instance permitted to perform a judicial review of the general normative acts (laws and by-laws) enacted by the state legislative and executive-administrative bodies. This is done by focusing on their formal and material (substantial) compatibility with the constitution and laws, and shall repeal or annul a law or any other regulation if it finds it to be unconstitutional (contra constitutionem) or unlawful (contra legem). ( Светомир Шкариќ, (2009): 699-719. One of the basic requirements for rule of law is an independent judiciary. Unlike the two political powers – legislative and executive – whose relationship rests on “checks and balances”, the judicial branch has to be independent of any political influence. This can be ensured only by the constitution, as both legislative and executive branches are subjected to the constitution. So the supreme law must protect the judicial branch from the possibility of influence by the political powers. This means that the constitution itself must turn off any possibility of the legislative or executive violating the constitutionally guaranteed status of judiciary. An independent judiciary “maintains the balance” in the system of government, since its role is to prevent the abuse of authority. That is why James Bryce concluded long time ago that there is no better proof of the validity of a rule than the work of its judicial system. (Džems Brajs, (1933):88) Rule of law failure underlines the main problems of democracy in North Macedonia. The third branch of government seems unable to live up to its authority, i.e. to implement its powers from a practical point of view. This has been well elaborated in many international reports. The lack of implementation of laws as well as budgetary constraints are some problem areas identified in various reports about the judiciary in North Macedonia. For example, the Priebe Report The Republic of North Macedonia: Recommendations of the Senior Experts' Group on systemic Rule of Law issues relating to the communications interception revealed in Spring, 2015, p. 9 notes that, “The country possesses a comprehensive set of rules which, if fully observed, should generally ensure a proper functioning of the judicial system to a high standard”. EU should build upon its own positive example of addressing state capture in North Macedonia - Let us recall how the official EU reports missed the scope of Rule of Law collapse in North Macedonia before the so called political bombs went off in 2015. The bombs refer to disclosure of illegally intercepted telephone calls, which unveiled numerous corruptive practices of the ruling party, including interfering with the work of the judiciary, manipulating election process, tightening the grip over the media and releasing security services from democratic oversight. The bombs lead the political crisis in Macedonia to its peak in 2015, making it clear to the EU that it must act swiftly and effectively. Along with diplomatic mediation between political actors in Macedonia, the EU gathered a group of independent experts, lead by a retired European Commission director Reinhard Priebe and tasked to identify systemic Rule of Law issues in the country. This endeavour resulted in the so called Priebe report. Independent experts from EU member states were more frank in providing diagnosis and they weren’t trapped in overly formalized structure of EU reports. Nevertheless, the fact that the Report was commissioned and published by the European Commission provided it with great authority. The Priebe Report identified the security sector as an important lever of state capture. It pointed to power concentration in one civilian intelligence service in Macedonia, operating without oversight. Responsible authorities hadn’t used their control and oversight powers, because they were politic-sized or intimidated, or otherwise sabotaged. Although democratic civilian control looked good on paper, it has failed in practice. Well written laws were not enough. Priebe’s team explained how specific problems it analyzed in several areas – judiciary, independent institutions, media, elections and interception of communications – have in fact common sources. Beside insufficient transparency of public affairs and widespread political corruption, one of the key causes was the absence of constructive political dialogue. The vicious circle of polarization, politicization and fear rendered democratic mechanisms paralyzed and led to state capture. The Report offers an overall picture, doesn’t beat around the bush and offers concrete recommendations. These were transposed into the Urgent Reform Priorities for North Macedonia and the EU facilitated a special agreement between ruling and opposition parties. The European Commission managed to commit the Macedonian political actors to their implementation, by announcing its own monitoring of the reforms and turning them into a pre-condition for the country’s progress towards accession. - https://europeanwesternbalkans.com/2019/02/08/priebe-report-state-capture-western-balkans/ Without a doubt, this is an often-heard statement in North Macedonia. Namely the idea that the problem is not in the normative legal framework, but in the applicative aspect, i.e. in the implementation in practice. However, this puts into question the adequacy of laws. Are they implementable at all? An answer to the questions of the implementation of laws as well as the independence of the judiciary may partially lie in budgetary constraints. As the U.S. State Department report states, “The inadequate funding of the judiciary continued to hamper court operations and effectiveness. A number of judicial officials accused the government of using its budgetary authority to exert control over the judiciary”. US State Department Macedonia Human Rights Report, 2014, p. 6 However, the judiciary is not simply hampered by the lack of independence or budget, but also by the lack of public trust among citizens. Two studies, one supported by IRI (International Republican Institute) and the second conducted within Network 23, provide data which show a deep mistrust in the judiciary and its various institutions. The IRI survey shows that a majority of the citizens interviewed do not trust the courts, nor the Public Prosecutors based on their actions in the past year. Survey of Public Opinion in Macedonia, Skopje, 2015, p. 31 The analysis within Network 23 notes a lack of trust in the Judicial Council, particularly among the Albanian ethnic population (63%). Institute for Human Rights, Analysis of independence of the Judicial Council of Republic of Macedonia – Aspirations and Challenges, Skopje, 2015, p. 27. The lack of trust in citizens hinders the legitimacy of the courts as well as the perception of their reliability by the citizens. This might partially serve to explain why there is no public pressure on judiciary reform. A lack of preparation of laws and their hasty implementation is another serious problem that has been noted in various reports. For example, the European Commission Progress Report noted that the law for establishing the Council for Determining Facts is a, “Further blow to a profession which is already under siege”. European Commission Progress Report 2015 for the Former Yugoslav Republic of Macedonia, p. 52. The enactment of this law points out the persisting challenges that exist for independence of the judiciary in North Macedonia. Regardless of numerous negative comments the government formed the Council for Determining Facts in a hasty procedure. However, it was not operational until March, 2016. Why is the judiciary not able to carry out its constitutional duty and act as a third specific branch of government? This article aims to answer that question. In doing so it assumes a two-step process. In the first part it outlines results from an empirical study that enlighten the limits of the judiciary’s control of the executive. In the second part it takes a closer look at the administrative justice which has an essential function to protect the citizens against unlawful acts of public bodies. We aim to explain the major weaknesses of the judiciary in its inability to control the executive, and then we will proceed in the area of the administrative justice as the external form and the most favorable manner for control of legality over administrative acts and actions of the state executive-administrative power. ANALYSIS: CHALLENGES FOR JUDICIAL CONTROL OF THE EXECUTIVE The first part of this paper utilizes parts of an empirical study conducted with 36 semi-structured expert interviews conducted during the months of December, 2015 and January, 2016. ( Dane Taleski, 2016) This is not a representative sample of the applicable stakeholders. However, it is a very high number of experts’ interviews and there is a high saturation in the answers. Most of the interviews (14 which is 38.9% of the total) were done with judges and prosecutors. Interviewees included judges from basic courts all the way to the Constitutional Court and prosecutors from different levels. Interviews were also done with appropriate members of parliament (5) such as the Deputy Speaker of Parliament and members of legislative committees. Also interviews included the government (6) such as acting and previous Ministers of Justice and high ranking public administration officials. Finally interviewed were interested members of the public (11) such as applicable NGOs, journalists, university professors and international actors. The experts interviewed included former and acting stakeholders whose experience with the judiciary ranges between 5 and 40 years. Respondents were asked to answer closed questions which evaluated the independence of the judiciary, and open questions which focused on the challenges and accomplishments of reforms. The data was analyzed by comparing the means with Cronbah's Alpha Test for reliability of results. Cronbah’s Alpha is a statistical measure which shows the correlation within a set of answers. It is a standardized test when analyzing and comparing means to show internal consistency and reliability of the answers. The test value ranges from 0 to 1. Values above 0.5 are acceptable; however higher values designate higher consistency and reliability. The respondents gave relatively low grades for the functioning of judicial institutions. The results are shown below in table 1. The answers are an assessment of the judicial control of executive and judicial independence, and are an estimation of the work in civil cases. It is somewhat surprising that the Judicial and Prosecutors’ Councils, the new institutions set up to guarantee the independence of the judiciary from political interference, received the lowest grade. The Judicial Academy got a relatively higher grade which means almost a 3 and it was generally seen as the most positive step towards the improvement of the judiciary both in its efficiency and its quality. As one respondent stated, “The Academy provides a positive step towards the long-term improvement of the judiciary.” Table 1. Grading the work of the judicial institutions, on a scale a scale from 1 (worst) to 5 (best) N = 35 1 2 3 4 Courts 2.42 (0.80) Prosecutors 2.34 (1.02) Judicial Council 1.78 (0.83) Public Prosecutors Council 1.77 (0.97) Judicial Academy 2.97 (0.87) Cronbah's Alpha: 0.79, standard deviation in parenthesis The independence and accountability of the judiciary was supposed to be strengthened with the introduction of the Judicial and Public Prosecutor's Councils. However, in practice the councils seem to play somewhat a different role. Respondents gave a very low score for their functioning, and other research corroborates the existing weaknesses. Institute for Human Rights, Analysis of independence of the Judicial Council of Republic of Macedonia – Aspirations and Challenges, Skopje, 2015, p. 27. For many of our respondents the respective councils represent an intermediary instrument for the executive to control judges and prosecutors even though some measures were undertaken to increase their independence such as the Minister of Justice no longer has the right to vote in the Judicial Council. Judges and prosecutors elect the majority of the members in the councils. The elected members represent the geographical and hierarchical set up of the courts and prosecutor's office. In general, the respondents considered the independence of the judiciary to be in the decline, and noted that this was mostly due to the presence of political interference. As indicative examples of this is the respondents pointed to cases where high ranking government officials sued journalist or political opponents for libel and defamation and to cases where opposition politicians are put on trial, which are seen as cases portraying selective justice. Furthermore, when asked about the challenges of the judiciary most of the respondents noted that political interference was the greatest obstacle. Indeed, the European Commission Progress Report also notes that, “The extent of previously suspected political interference in both the appointment of judges and the outcome of court proceedings was confirmed by the content of the intercepted communications”. European Commission Progress Report 2015 for the Former Yugoslav Republic of Macedonia, p. 52. Serious concerns about the lack of judicial control of the executive, or to put it precisely, the belief that the executive controls the judiciary provide a very negative view about the entire judicial system. Even though on average the judicial system has improved compared to previous years, the handling of sensitive and politically charged cases creates an impression of a failing rule of law. Such cases present a minority of all cases; however, they show precisely what the state of judicial control of the executive is. Almost all of our respondents, across categories, believed that the executive controls the judiciary. Respondents were asked to name an example, the first that comes to mind, of judicial control of executive. Almost none of the respondents could point out an example of judicial control over the executive. Some even claimed that the judiciary can't control the executive, because the judiciary was there to enforce the laws, while the executive together with the legislative enacted the laws, while one respondent noted that the way that the system in North Macedonia is built simply does not allow for judiciary control over the executive. This shows that many of the relevant stakeholders, including judges and prosecutors, do not see the judiciary as an equal and independent branch of power, but as being subordinated to the executive. Very few of the respondents pointed out to cases where acting politicians were held accountable in a court of law. These were mainly corruption cases against state secretaries, some heads of sectors and local government officials. There have been no cases when acting high level politicians were taken to court. On the other hand, there are cases against former high-level politicians, which one of our respondents labeled as “revenge cases”, namely former executives being charged by the new governing powers to assert strength. (Dane Taleski (2016): 28). Table 2. Grading the independence of the judiciary N = 34 1 2 3 4 Judiciary 2.03 (0.75) Judicial Council 1.53 (0.75) Public Prosecutors Council 1.5 (0.75) Adequacy of Judicial Budget 2.68 (1.06) Judicial Control of Executive 1.74 (1.05) Cronbah's Alpha: 0.62, standard deviation in parenthesis The results show that there is very low independence of the judiciary. There is some financial independence. The adequacy of the judicial budget has a mean score of 2.68, which is the highest compared to the others. The independence of the overall judiciary has a mean score of 2, while the independence of the councils and the possibility for judicial control over the executive were graded as lower. Respondents were asked to grade to what extent different factors limit the independence of the judiciary, on a scale for 1 (lowest) to 5 (highest). Majority of the respondent pointed out to political influences as the main impediment for the independence of the judiciary. The results, with a relevant Cronbah’s Alpha Test, are shown in table 3. Table 3. What is limiting the independence of the judiciary N = 32 1 2 3 4 Bad laws 2.31 (1.2) Political influences 4.47 (1.07) Incompetent judges and prosecutors 3.19 (1.03) Lack of capacities (space) 2.34 (1.23) Bad technical resources 2.41 (1.21) Bad administration 2.5 (1.08) Low salaries 2.59 (1.27) Cronbah's Alpha: 0.55, standard deviation in parenthesis It is not surprising that political influences are the main factor. Other research, done in North Macedonia in 2015 corroborates the findings. According to an IRI (International Republican Institute) nation-wide survey a majority of the respondents considered that courts are susceptible to political influences for example, 22% of respondents said “fully susceptible” and 33% said “rather susceptible”. Survey of Public Opinion in North Macedonia, Skopje, 2005, p. 57. However, it is somewhat surprising that the incompetence of judges and prosecutors comes as the second most influential factor that limits the independence of the judiciary, with a mean score of 3.19. The other factors were seen as having less of an influence and approximately being on the same level. These results point out the doubts about the quality of human resources in the judiciary. They also reflect deep mistrust in the personal capacities of individual judges. (Dane Taleski (2016): 30). THE ADMINISTRATIVE JUSTICE: CHALLENGES AND PERSPECTIVES A judicial review, sometimes called a supervisory jurisdiction, has the administrative justice power to police the legality of decisions made by public bodies. Usually an accommodation must be struck between competing aspects of the separation of powers. On one hand the rule of law has been said to require that the legality of government action must be subject to review by independent and impartial administrative judiciary. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by law. Both the separation of powers and the European Convention on Human Rights require the courts to check misuse of power by the executive, but also to avoid trespassing into the political territory of the government. Judicial review is regarded as a last resort method of challenge and there are procedural barriers intended to prevent this from being too easily taken up. The constitution therefore ensures that the executive power is subjected to independent judicial control as an external control of legality of its decision-making in administrative matters. (Peter Leyland, (2016):186-188). The judicial review of administrative acts and actions is an essential process if the rule of law is to be observed in a modern democracy. ( Anthony Bradley, Keith Ewing, (2003) :695.) A state based on the rule of law implies the capacity of citizens to submit administrative actions to judicial control. Moreover, judicial control appears to be an indispensable instrument to enhance the quality of administrative action and ensure good governance. It is also fundamental for international economic exchanges, since security of trade and investment depends on public decision-making bodies being subject to effective means of oversight and redress. (Jean-Marie Woehrling, god. 6. (2006.), br. 3 :3)6. The power of national competent court conferred by law to exercise judicial control over legality of individual administrative acts of the executive-administrative branch of state power, and to annul administrative acts which are contrary to the provisions of the certain law is called administrative judicial review. In the European tradition, judicial protection by administrative judiciary in principle has two different objectives. On the one hand the legal protection of individual rights and legal interests of citizens against unlawful administrative acts and actions of state executive-administrative power and on the other hand the surveillance of the legality of administrative acts in order to ensure objective legality. (Pero Krijan, (2006):24-25; Ivo Borković, (2002): 128; 483). The role of the administrative justice is not an extension of the administration with the aim of a comprehensive objective control, but the protection of the individual rights against public authorities. It is a guarantor of effective protection of subjective rights and legal interest of the individual and citizen as a central segment while protecting public interest and necessity for democratic society. Furthermore, it should be noted that administrative justice is a bastion of the rule of law when it comes to the application of law by the executive-administrative branch of state power of the certain state. Administrative justice is by no means hostile in relation to the power apparatus of state administration. On the contrary, administrative justice can only strengthen it by giving legitimacy to the challenged decisions. On the other hand, administrative justice is a guarantor of citizen’s right to a public administration at its best, and that is why judges should be up to the task of the court while applying the administrative court proceeding (judicial review proceeding) in concrete cases in practice which is regulated by the Law on Administrative Disputes. From this result the principal conclusion that administrative justice is an instrument for legally protecting human rights infringed upon by a public authority, as well as an outstanding method of providing lawfulness in public administration activity. ( Nikola Stjepanović, (1976). The administrative dispute as a judicial protection of the citizens’ rights from unlawful acts and actions of the administration in the Republic of North Macedonia has a long tradition. It was introduced for the first time in the Law on Administrative Disputes in 1952, supplemented by a new Law on Administrative Disputes in 1977, and the third and last Law on Administrative Disputes adopted in 2006 according to which a separate specialized administrative judiciary was established in the country. This Law was amended in 2010 with provisions for the establishment of a Higher Administrative Court without stipulating provisions for conducting proceedings before this Court. The biggest problems that citizens face in the administrative-legal relations with the state (with the public authorities according to the terminology of the Law on the General Administrative Procedure) include: firstly, regarding the length of the overall administrative procedure (administrative procedure before public authorities, followed by an administrative dispute), and secondly, in failing to enforce the decisions of the administrative judiciary. The length of the procedure consisting of five instances of which two before the state administration bodies called public bodies and three in the framework of the administrative dispute before the Administrative Court, the Higher Administrative Court and declaratively before the Supreme Court of Republic of North Macedonia, make the protection of citizens’ rights delayed and expensive. What can be noted from the research conducted by the academic community and non-governmental organizations, as well as the reports drawn up by the experts within IPA (The Instrument for Pre-Accession Assistance) 2007 project is the following: “Capacity building of the administrative judiciary in the Republic of Macedonia in the face of the challenges for achieving European standards” - “Ss. Cyril and Methodius” University Skopje 2015; and IPA 2007 Project “Support for more efficient, effective and modern operation and functioning of the Administrative Court” Annex 6, December 2011. the protection of the rights of the citizens is stalled, the same judgments of the Administrative Court which were previously repealed and remitted for a new trial are upheld, which for the party means only a waste of time and increased expenses. It was found out that it is unnecessary for the public authorities to be represented in the administrative dispute against them by the State Attorney General’s Office. Namely, under the 2015 Law on General Administrative Procedure, the official who conducted the administrative procedure is obliged to also terminate it or, in other words, to adopt and sign the decision. He/ she replies to the complaints against his/her decision before the second instance state commission which decides on appeals in administrative proceedings. If a citizen, in the capacity of a party, initiates an administrative dispute against the second instance state commission’s decision, there is no logical or legal justification for the State Attorney General to represent the public authority in such an administrative dispute. Failure to rule in full jurisdiction by judges of the Administrative Court is an additional problem for citizens creating a ping-pong effect in the protection of their rights. On the one hand, they have received from the Administrative Court a judgment in their favour, but on the other hand, instead of solving their problem on the merits, the judgment refers them back to another administrative procedure before the state administration authorities. In this way, citizens have obtained court justice de jure or on paper, but not de facto or for real. Strategy for Reform of the Judicial Sector for the Time Period 2017-2022, Skopje, 2017, p. 25. This problem is a consequence of the failure of the respondent bodies of state administration to submit the files during the administrative dispute which is why the Administrative Court cannot decide meritoriously in a dispute of full jurisdiction. The judgments of the Administrative Court repealing the decisions of the state administration authorities and remitting them for redress with concrete court instructions are not enforced by the state administration authorities as they again make a decision with the same content as the previous repealed decision. The Administrative Court faces a problem of non-enforcement of its judgments, a phenomenon that has not been observed in any country in which the principle of the rule of law is applied consistently. The disputes from the administrative contracts, although explicitly defined in the Law on Administrative Disputes of 2006, and since 2015 also in the Law on General Administrative Procedure as the competence of the Administrative Court, are still mostly decided in the regular courts, meaning that in this area also there is some total discrepancies in the application of the law. The conditions for the operation of the Administrative Court (spatial, technical and personnel) are reduced to a minimum and completely incompatible with a court of this rank which handles the most significant disputes against the state. Because of all the negative findings stated above, it is necessary to draft a comprehensive analysis of the situation in the administrative judiciary the results of which should be the basis for future legal changes in this matter. The State Attorney’s Office does not need to represent the public authorities in administrative disputes, given the new decisions in the Law on General Administrative Procedure according to which the official conducting the procedure also adopts the final administrative act. Hence, the official representing the public authority will defend his/her decisions in an administrative dispute. It is necessary to take measures for consistent application of the mandatory court judgments and to foresee a way to determine how many of the final judgments were enforced within the legally prescribed period of 30 days. This is one of the European principles outlined in the Protocol. The Law on Administrative Disputes should contain provisions for sanctioning public authorities which do not submit to the Administrative Court the necessary documents required for proper conduct and conclusion of the administrative dispute. Specific training of administrative judges is required for the proper adjudication of disputes arising from administrative contracts which will be conducted by national and international experts. The number of trials with public hearings should increase. The Law of Administrative Disputes should be aligned with the 2015 Law on General Administrative Procedure. There is a need for supplementing and specifying certain data within the Annual Reports on the work of the Administrative Court, such as how many decisions were made in disputes in full jurisdiction, how many decisions were made after a previously held oral hearing, how many of the decisions were made by a single judge, that is, to specify the ground on which the decisions taken were upheld. It is necessary to improve the spatial and technical conditions for the work of the Administrative Court in order for administrative judges to perform their work more efficiently, as well as to acquire the necessary dignity and integrity. Strategy for Reform of the Judicial Sector for the Time Period 2017-2022, Skopje, 2017, p. 25-26. Conclusions The article starts from the factual situation of the judiciary that is well noted in several international reports. The findings suggest that the judiciary faces serious impediments to act as the third independent branch of government and that it not able to fully control the executive. These findings were corroborated in the empirical results of the study that the article utilizes. The results of the study suggest that various stakeholders within the judiciary give low grades for the functioning of judicial institutions in practice. Furthermore, there seems to be a wide range of opinion that the independence of the judiciary is very low. For many of our respondents, the Judicial and Prosecutor’s Councils represent an intermediary instrument for the executive to control judges and prosecutors, even though some measures were undertaken to increase their independence. In general, the respondents considered the independence of the judiciary to be in the decline, and noted that this was mostly due to the presence of political interference. As indicative examples of this is the respondents pointed to cases where high ranking government officials sued journalist or political opponents for libel and defamation and to cases where opposition politicians are put on trial, which are seen as cases portraying selective justice. Furthermore, when asked about the challenges of judiciary most of the respondents noted that political interference was the greatest obstacle. Even though on average the judicial system has improved compared to previous years, the handling of sensitive and politically charged cases creates an impression of rule of law failure. Respondents were asked to name an example, the first that comes to mind, of judicial control of executive. Almost none of the respondents could point out an example of judicial control over the executive. Some even claimed that the judiciary can't control the executive. This shows that many of the relevant stakeholders, including judges and prosecutors, do not see the judiciary as an equal and independent branch of power, but as being subordinated to the executive. Majority of the respondent pointed out to political influences as the main impediment for the independence of judiciary. The second reasons were the incompetence of judges and prosecutors. The other factors were seen as having less of an influence and approximately being on the same level. These results point out the doubts about the quality of human resources in the judiciary. One need to point out that these conclusions came from a study that was done in December, 2015 and January, 2016. From a time-perspective they need to be taken with a grain of salt even though they are very indicative for the improvements and reforms that need to be outline in the future to have a functional judicial system. The improvement of the judicial system and its functioning are a key assumption for the development of the Republic of North Macedonia as a democratic state of law and a multicultural society and its Euro-Atlantic integration. In that sense, with the adoption of the Strategy for the reform of the judicial sector for the time period 2017-2022 (with an Action Plan), several main goals were set that represent a phased overcoming of the identified weaknesses in the judiciary, its placement on the path of European and international standards and its functioning as the main pillar of the democratic state of law, among which the attempt to remove from the legal order legal solutions that blocks the realization of the function of judicial control over the legality of the actions of the state executive-administrative power and the reform of the administrative judiciary for the purpose of efficient realization of its function of control over the acts of the state executive-administrative power. From a material-functional point of view, the administrative justice/judiciary is not a new legal category, more precisely the administrative dispute as regular and systematic form of judicial control over the legality of administrative acts of the state executive-administrative power in the Republic of North Macedonia, for the sole reason that it dates back to 1952 and there is judicial practice and legal tradition of more than 60 (sixty) years. On the other hand, from a formal-organizational perspective, the administrative justice/judiciary presents a completely innovative segment within the composition of judicial system of the Republic of North Macedonia, that represent a specialized court instance that should guarantee legal certainty and regularity of decision-making in administrative matters i.e. in all administrative-legal areas. The foundation of administrative judiciary is a part of the reforms in the judiciary planned under the Judicial Reform Strategy adopted by the Ministry of Justice of the Republic of North Macedonia in 2004, for the purpose of establishing an independent and efficient judiciary. The Administrative Judiciary is competent for adjudicating in administrative disputes within the legal system of the Republic of North Macedonia. Administrative judiciary in North Macedonia is being provided through two court instances – the Administrative Court (examining suits on decisions of the state administrative bodies) and the Higher Administrative Court (examining appeals against decisions of the Administrative Court). Therefore, the Higher Administrative Court decides as second and last court instance on appeals as a regular legal remedy against decisions of the Administrative Court of first instance. The efforts of the Administrative Judiciary to deal with its considerable case load and to continuously reduce the backlog of pending cases with the available number of judges, court advisors and supporting staff as well as with the current legal provisions deserve full recognition. Nevertheless, a reform of the administrative judiciary is indispensable for the following reasons: firstly, the current Law on Administrative Disputes is not in line with EU-standards (acquis communautaire), thus being an obstacle on North Macedonia’s way to accession to the European Union; secondly, the current Law on Administrative Disputes lacks provisions for more effective court proceedings. The standards from Article 6 of the European Convention of Human Rights and Fundamental Freedoms (ECHR) require a two-tier system of administrative justice with administrative dispute of full jurisdiction, public hearing, the right to appeal to the higher court, and the protection of issuing administrative decisions within a reasonable time. For now, North Macedonia has a two-tier system of administrative justice, at least formally in line with the standards of the Convention. Under the current Law on Administrative Disputes of the Republic of North Macedonia of 2006 the Administrative Court in principle has only cassatory powers. This means that if the court concludes that an administrative body illegally refuses to issue an administrative act in favour of a citizen (for example, building permit), it can only repeal the challenged act (cassatory decision) and return the case to the administrative body (article 36 paragraph 2 Law on Administrative Disputes). Apart from a few exceptions (article 40 Law on Administrative Disputes), the court is not competent to order an administrative body to render the requested administrative act (reformatory decision). As a result, some cases come back to the court again, some even several times, which leads to a so-called “ping-pong effect”. This “ping-pong effect” is one of the main problems of the administrative judiciary because it prolongs the overall duration of proceedings. This term comprises the period from the first application before an administrative body until the rendering of a final court decision. From the view of the citizen or an investor that is the decisive period. In addition to that, it is the overall duration of proceedings that is decisive for the question whether the duration of proceedings (delayed justice is not relay justice since it might cause distrust in the existence of justice itself and of legal protection in general) violates the European Convention on Human Rights (article 6). The reduction of the “ping-pong effect” will result in a shorter duration of proceedings and in a reduction of the number of incoming cases. Because of these effects, the step from a mere cassatory to a reformative system is one of the most important steps in the legislative reform of administrative court proceeding (judicial review proceeding) of the Republic of North Macedonia. Bibliograpy Treaties, courses, monographs John, Alder. (2007), Constitutional and Administrative Law. Trevor, Allan. (2001), Constitutional Justice: A Liberal Theory of the Rule of Law, London. Arsen, Bačić. Petar, Bačić. (2009) Ustavna Demokracija i Sudovi, Split. Arsen, Bačić. 2006), Ustavno Pravo i Političke Institucije, Split. Arsen, Bačić. (1990), Principi Podjele i Jedinstva Vlasti u Jugoslaviji, Split. Eric, Barendt. (1998), An Introduction to Constitutional Law, London. Petar, Bačić. (2007), Zashtita Prava Čovjeka u Europskim Organizacijama, Split. Ivo, Borković. (2002) Upravno Pravo, Zagreb. Džems, Brajs.(1933), Savremene Demokratije, Beograd. Anthony, Bradley. Keith, Ewing. (2003), Constitutional and Administrative Law, London. Peter, Leyland. Gordon, Anthony. (2016) Administrative Law, London. Jean-Marie, Woehrling.(2006) Judicial Control of Administrative Authorities in Europe, Hrvatska Javna Uprava, god. 6., br. 3. Pero, Krijan. (2006), Komentar Zakona o Upravnim Sporovima, Zagreb. Gebhard, Muller. (1972), Judicial Protection against the Executive. Denis, Preshova. (2018), Judicial Reforms in the Republic of North Macedonia, Skopje. Oliver, De Schutter. (2010), International Human Rights Law, Cambridge University Press. Nikola, Stjepanović. (1976), Upravno sudstvo kako sredstvo zaštite zakonitosti. Dan,e Taleski. (2016) et alia, Improving the system of checks and balances in the Republic of Macedonia, Skopje. Светомир, Шкариќ. (2014) Научно Толкување – Устав на Република Македонија, Скопје. Кирил, Чавдар. Кимо, Чавдар. (2013), Коментар на Законот за Управните Спорови, Скопје. Светомир, Шкариќ. (2009), Уставно Право, Скопје. Documents The Republic of North Macedonia: Recommendations of the Senior Experts' Group on systemic Rule of Law issues relating to the communications interception revealed in Spring, 2015, p. 9 - https://europeanwesternbalkans.com/2019/02/08/priebe-report-state-capture-western-balkans/ US State Department Macedonia Human Rights Report, 2014, p. 6 Survey of Public Opinion in Macedonia, Skopje, 2015, p. 31 Institute for Human Rights, Analysis of independence of the Judicial Council of Republic of Macedonia – Aspirations and Challenges, Skopje, 2015, p. 27. European Commission Progress Report 2015 for the Former Yugoslav Republic of Macedonia, p. 52. Survey of Public Opinion in North Macedonia, Skopje, 2005, p. 57. Institute for Human Rights, Analysis of independence of the Judicial Council of Republic of Macedonia – Aspirations and Challenges, Skopje, 2015, p. 27. European Commission Progress Report 2015 for the Former Yugoslav Republic of Macedonia, p. 52. “Capacity building of the administrative judiciary in the Republic of Macedonia in the face of the challenges for achieving European standards” - “Ss. Cyril and Methodius” University Skopje 2015; and IPA 2007 Project “Support for more efficient, effective and modern operation and functioning of the Administrative Court” Annex 6, December 2011. Strategy for Reform of the Judicial Sector for the Time Period 2017-2022, Skopje, 2017, p. 25. Strategy for Reform of the Judicial Sector for the Time Period 2017-2022, Skopje, 2017, p. 25-26. II. Romanian Law  Considerations Regarding the New Legislative Modifications and Amendments in the Matter of Civil Status Acts The work was supported at the XXVIIth edition of the National Session of scientific communications of the University "Petre Andrei" in Iasi, "Contemporary dimensions of development. The Romanian background of European synchronization", June 7-8, 2019. Irina APETREI Ph.D.,”Petre Andrei” University, Iasi, Romania, contact : [email protected] , tel.: + 40 727 315 419 Abstract This paper aims at signaling the future legislative modifications and amendments in the matter of civil status acts, still at under discussions in the Bill for the modification and completion of Law no. 119/1996 regarding civil status acts, republished Republished in the Official Gazette, Part I, no. 339 from May 18, 2012., as well as for the abrogation of the Government Ordinance no. 41/2003 pertaining to the administrative modification and assignment of individuals’ names . Published in the Official Gazette, Part I, no. 68 from February 2, 2003. The Bill has been subject to public debate and later approved by the Superior Council of the Magistracy.The new normative act aims at creating the legal framework for the implementation of the project regarding the creation of the Integrated Computer System for the Issue of Civil Status Acts (SIIEASC), carried out by the Ministry of Internal Affairs, which will establish the electronic form for drawing up civil status acts, while ensuring the required computer network at a national level. The purpose of the new regulations is to harmonize the Romanian legislation in the field with the European legislation, given that Romania’s adhesion to the European Union in 2007 implicitly triggered an increase of the international private law legal relationships. The bill aims at decentralizing certain activities by the transfer of attributions from the competence of public central administration to the competence of local public administration authorities, which will result in a decrease of the time required to settle a petition regarding civil status acts. Furthermore, the new law will also include the provisions of Government Ordinance no. 41/2003 for the administrative assignment and change of individuals’ names, a normative act that it will also abrogate. To this purpose, the bill stipulates a simpler procedure for changing a name and, at the same time, a shorter time for this endeavor and, with regards to the first name, parents won’t be allowed to register more than three first names for their children. Keywords: new regulations, civil status acts. Introductive Aspects The goal of this paper is to conduct a theoretical analysis regarding new legislative background in Romania in the field of civil status acts as initiated in the bill for the modification and completion of Law no. 119/1996 regarding civil status acts, republished, as well as for the abrogation of Government Ordinance no. 41/2003 regarding the administrative assignment and modification of individuals’ names. The new regulations aim at a harmonization between our legislation and the European legislation in the field, being a natural consequence of our country’s adhesion to the European Union in 2007 and, implicitly, of the increase of legal relationships in the sphere of private international law. In that sense, the new regulation will create the legal background for the implementation of the project related to the Integrated Computer System for issuing civil status acts (SIIEASC), carried out by the Ministry of Internal Affairs. This will establish the electronic form for the drawing up of civil acts, by means of a national wide computer network. The bill aims at decentralizing certain activities, by transferring certain attributions from the competence of public central administration to the competence of the local public administration, which will also lead to a reduction of the time required for applications regarding civil status acts. At the same time, the new regulation will abrogate the provisions of Government Ordinance no. 41/2003 regarding the administrative assignment and modification of individuals’ names, which will be included in its own normative content. Moreover, the bill stipulates a simpler procedure and a shorter time to change family names, while for first names parents won’t be allowed to register more than three first names at the birth of their children. 2.The Notion of Civil Status An individual’s civil status provides, beside the name and residence, the means of identification of individualizing them in relationship to the other members of society, given that each individual is unique (this unicity being also shown by the personal numerical code, in later stages). From an etymological perspective, the term of “civil status” comes from the Latin “status civilis”, in the sense of required attributes for an individual to have legal personality. Although the customary use of the civil status term refers rather to the quality of an individual as married or single, as we all know it, the term comprises several “ingredients”. Thus, in a larger sense of the term, the civil status refers to the legal condition of an individual within a state (nationality, namely Romanian or foreign citizenship), within society (male or female, major or minor, under interdictions or not, convicted), as well as within the smaller sphere of family (married, divorced, child from the marriage or outside marriage, adopted individual). In a narrower sense, the civil status refers to a set of personal qualities by means of which an individual is differentiated by the others and for whom the law sets forth certain legal consequences. The civil status comprises a set of elements that individualize a citizen as a subject of rights and obligations and that determine their legal position towards the family they are part of. It can be states that the position of an individual in relation to their family is the most important element of civil status. The current Civil Code defines civil status as “the individual’s right to differentiate themselves, in family and society, by strictly personal qualities deriving from their civil acts and deeds” (art. 98 Civil code). The civil status is acquired following certain legal facts (birth, death), following the conclusion of certain legal documents (marriage, adoption) or following a final court order with effect on the civil status (divorce order, declaratory judgment of an individual’s death, etc). 3. Regulation The New Civil Code regulates civil status acts in art. 98 – 103. In addition, we find civil status dispositions in Law no. 119/1996 regarding civil status acts, as well as in the Methodology for the unitary enforcement of these dispositions Published in the Official Gazette, Par. I, no. 151 from March 2, 2011., in Government Ordinance no. 41/2003 regarding the administrative assignment and modification of individuals’ names, in Government Emergency Ordinance no. 97/2005 regarding the registration, residence and identity documents of Romanian citizens, republished Republished in the Official Gazette, Part I, no. 719 from October 12, 2011., etc. 4. Legislative Novelties 4.1. Civil Status Acts in Electronic Format According to the current regulation, civil status acts (birth, marriage and death) are filled in manually, in black ink, in two original copies, in the civil status registers. The new bill stipulates that the first copy of civil status acts drawn up at Romania’s diplomatic missions and consular offices also be filled in electronically. Thus, according to art. 4 of the bill, as of the date the required computer infrastructure becomes available at a national level, the first copy will be filled in on hard copy, in the civil status registers, being also filled in electronically. The second copy will be filled in only electronically, both with regard to the civil status officers and Romania’s diplomatic missions and consular offices. Subsequent mentions will also be filled in electronically in the same copy II, further to be submitted under the same form by the issuing officer to the town hall, which keeps copy I in the registers of civil status acts, in view of making the modification of the changes in the civil status of that particular individual. According to the previous procedure, every time there were modifications to the individuals’ civil status, each civil status office that operated such modifications was bound to refer these modifications to the other civil status offices where records had been previously made regarding the civil status of that particular individual. In the end, all these modifications were centralized by the civil status office from the place of birth of individuals. This way, in agreement with the technological evolution, the previous difficult and time-consuming procedure is to be simplified. Furthermore, as Romania is a member of the European Union, art. 7 line (2) of the Bill expressly stipulates the right of foreign citizens, of citizens of member states of the European Union, of those from the European Economic Space and the Swiss Confederation, with the residence in Romania or who are temporarily on Romanian territory, to apply for the registration of civil status acts under the same conditions as Romanian citizens (compared to the current regulation, which only uses the phrase “foreign citizens”, without the aforementioned details, mandatory for the time being). The same article stipulates in line (4) that the Romanian citizens travelling abroad are bound to request the registration of the civil status acts and deeds at Romania’s diplomatic missions, namely consular offices or the competent local foreign authorities. In view of operating these legislative modifications, the competent authorities will implement the Integrated Computer System for issuing civil status acts (S.I.I.E.A.S.C.). The bill fails to indicate a deadline when this system could operate at a national level. As a necessity related to the technological evolution, art. 10 of the Bill consecrates the electronic signature of the civil status officer regarding the second copy of civil status acts, drawn up, as mentioned above, only under electronic form according to the future regulations. To observe Romania’s obligations deriving from the country’s adhesion to Convention no. 16 of the International Commission of Civil Status Signed in Vienna on September 8, 1976, to which Romania adhered by Law no. 65/2012, published in the Official Gazette no. 277 from April 26, 2012. , art.14 of the Bill sets down the delivery of multilingual birth, marriage or death certificates/excerpts. These excerpts are valid only within the states that are part of this convention. In view of correlating the new regulations with the provisions of the Convention no. 16 of the International Commission of Civil Status, but also to clarify certain situations that have occurred in the practice that could affect the validity of civil status acts, art. 14 of the Bill forbids unauthorized modifications or amendments to the civil status acts, as well as their lamination, otherwise becoming null. Our opinion is that in this case nullity is absolute, taking into account the breach of civil status of an individual. The regulation thus sanctions the case of lamination of civil status certificates, commonly met in practice. The use of laminated certificates is currently denied by the authorities; however, the current regulation fails to forbid the practice and apply the sanction of nullity. The enforcement of the sanction of nullity will be assessed by the civil status officers from the Register Office and the administration of the databases (DEPABD) which will be set up within the Ministry of Internal Affairs or by the clerks of the community services of registration for individuals. The Bill fails to detail the procedure to follow in view of assessing the nullity of those documents. The same direction will follow in the future the competence to guide and control the activity in the field of civil status performed within local public communitarian/county services for the registration of the individuals, namely within the town halls of the administrative – territorial units (where there are no local public communitarian services for the registration of individuals), this replacing the current competence of the Ministry of Administration and Internal Affairs. 4.2. Issuing the birth certificate In this matter, it is important to notice that certain operations related to issuing the birth certificate will be decentralized. Thus, the bill transfers certain attributions from the competence of the central public administration authorities to the local public administration authorities, reducing at the same time the time needed for settling certain categories of applications. In that sense, in case the birth is declared after the usual term of 30 days stipulated currently by the law, but within a year from birth, the future regulation will eliminate the approval of the county communitarian public services for the registration of individuals/The General Registration Office in Bucharest. More specifically, with regard to issuing the birth certificate, according to the new regulation, when the birth is declared after the usual term of 30 days, but within 1 year from birth, the document will be issued only with the approval of the mayor of the administrative – territorial unit, namely of the head of Romania’s diplomatic mission or consular office on the territory of which the birth took place. According to art. 19 of the bill, the birth is registered within 30 days from the date of the request, compared to the current regulation that stipulates a term of 90 days to settle the application. For the valid issuance of the birth certificate, the Bill requires the approval of the County Communitarian Public Services for the registration of people/The General Registration Office only in the event the birth was declared after the expiration of the one year term. Another modification refers to the issuance of the birth certificate in case of an abandoned child, the Bill stipulating that the certificate be issued in the same 30 days’ term from the date the child was found, by the local public communitarian registration service or, as the case may be, by the town hall on whose territory the child was found and that a further authorization from the tutelary court is required, beside the report drawn up and signed by the public registration officer, by the representative of the competent police unit and by the doctor, so that urgent fostering measures could be taken for the protection of the child in this situation. A useful modification is also the change of the competence for the issuance of the new birth certificate in case of an adopted child, the future regulation stating in art. 28 that it belongs to the civil status officer from the local public communitarian registration office or, as the case may be, from the town hall on whose territory the adopters’ or sole adopter’s residence is. In the current regulation the competence is determined according to the criterion regarding the adopted child’s residence until the moment of approval of the adoption or at the headquarters of the foster unit who cared for the adopted child prior to the approval of the adoption. This reformulation was a must for the future regulation to be in agreement with the provisions of art. 46 line (1) of law no. 273/2004 regarding the legal regime of adoption, according to which, on the duration of entrusting the child in view of adoption, the child’s residence is with the person or family to whom they were entrusted. Thus, a more appropriate criterion is set forth to determine the competence for the issuance of the birth certificate in case of an adopted child. 4.3. The regulation of a 3 first names limit One of the most significant novelties of the future regulation regards the first name. This part of the name was created to make the necessary difference among the members of a family. However, for a long time there has been in Romania a tendency of certain parents to assign a larger number of first names for their children, to satisfy their desires or, sometimes, those of grandparents or future god parents of the child. We are of the opinion that, de lege ferenda, an express provision should be made to bind the civil registration officer to register as first names denominations of car brands, countries, indecent terms, etc. (and not only the possibility of denying it, as currently stipulated by art. 18 line (2) of law 119/1996) and to sanction with nullity the registration of such first names. In the analyzed context, it is a good idea to set a three words limit with regard to the first name. More specifically, according to art. 22 of the bill, if the parents don’t have a common family name or there is a disagreement between the child’s name from the medical certificate that attests the birth and the name from the oral statement or if the name consists of more than three words, the birth certificate will be made based on a statement written and signed by both parents which indicates the family name and the first name of the child. This would be in fact the evidence of the parents’ agreement with regard to the first name of the child. 4.4. Modifications in the field of the conclusion of marriage Regarding the conclusion of marriages, the bill introduces a necessary clarification for the determination of the place of marriage in case of Romanian citizens who are abroad. In that sense, art. 29 stipulates the conclusion of the marriage by the civil status officer from Romania’s diplomatic mission or consular office on the territory of which is the residence of one of the future spouses of Romanian citizenship. Moreover, according to art. 30 of this Bill, the marriage can be concluded outside the local public communitarian registration office or, as the case may be, the competent town hall, with the approval of the mayor if, for solid reasons, one of the spouses is unable to walk. Therefore, the legislator appreciated as necessary the existence of solid reasons for the inability of one of the spouses to walk for a marriage to be concluded outside the aforementioned venues, forfeiting the future spouses’ capacity of choosing the location of their marriage and imposing certain limitative conditions to this end. A novelty is the condition of the mayor’s approval in case of the marriage declaration made outside the local public communitarian registration office or, as the case may be, the competent town hall if, for solid reasons, one of the spouses is unable to walk to these venues, the legislator deeming as necessary the intervention of a competent authority to verify at the same time the solidity of the reasons invoked in such situations. In view of clarifying the current regulating and of correlating it with the obligations acknowledged by Romania following the adhesion to Convention no. 16 of the International Commission of Civil Status, art. 31 of the Bill stipulates that the civil status officer who receives the marriage declaration will request the future spouses to show the identity documents, birth certificates, medical certificates attesting the health condition, with the supplementary mention that for the foreign citizen a bilingual birth certificate is required. Furthermore, in case of a previous marriage dissolved by a divorce decision or terminated following the death of one of the spouses, the bill expresses stipulates that the individual who is about to conclude a new marriage must make proof of dissolution/termination of the previous marriage. The text of the bill is clearer with regard to the calculation of the term for the conclusion of marriage, stipulating in art, 34 that the marriage “is concluded” as of the 11th day from the submission of the marriage declaration, but not later than the 30th day (the terms remaining the same as those in the current regulation). Mandatorily, the bill offers, as it currently does, the possibility of concluding the marriage prior to the aforementioned term, for solid reasons, also stating the necessity of supplying evidence for these reasons. At the same time, the bill allows the spouses, in case their marriage was not concluded within the maximum term of 30 days from the submission of the marriage declaration, to modify their initial declaration regarding the name chosen for the duration of marriage or their future matrimonial regime, if they have meanwhile changed their minds and have other possible options. The legislator deemed necessary to determine as well the competence of the diplomatic missions in the matter of marriage conclusion, stipulating that the heads of diplomatic missions and consular offices of Romania can conclude marriages between Romanian citizens or between Romanian and foreign citizens, provided that at least one of the future spouse, a Romanian citizen, has the domicile or residence in the consular circumscription of the diplomatic mission or consular office of Romania. A new provision is that according to which the heads of Romania’s diplomatic missions and consular offices cannot officiate marriages unless the accredited states acknowledge those marriages. A necessary completion of the current regulation regarding the evidence of civil status, so that no other documents should be required for this purpose, is that stipulated in the text of art. 65 line (2) of the bill, according to which, in case of marriages dissolved by divorce/terminated due to the death of one of the spouses, the marriage certificate is issued only with mentions regarding those particular cases. 4.5. Declaration of death and issuance of the death certificate According to the current regulation, the death of an individual should be declared within 3 days from the its occurrence, including the day of death and the day of the declaration. The future regulation maintains the same short term of 3 days, without making further clarifications regarding the way of calculation of this term, indicating only that the “declaration of death is made within 3 days from the day the individual passed away”. By eliminating the references regarding the means of calculation of this term, we understand that a death can be declared within maximum 3 days from the death of the individual, without taking into account the day that particular individual passed away but including the day of the declaration (we take into account the case when this is made on the last day out of the 3 days). The reformulation of the text of law is, indeed, welcome, as it fails to include in this term the day of death, a difficult moment for the closed relatives who are to make the declaration. The bill makes a necessary amendment with regard to the calculation of this term in case of death following suicide, accident or other violent causes, as well as in the case of finding a corpse, stating that the term of 3 days will run from the date of issuing the medical certificate attesting the death (taking into consideration the special circumstances of the death and which require the intervention of a medical agent to certify the death, prior to issuing the death certificate). Furthermore, the new regulation expressly stipulates, with regard to the competence of issuing the death certificate, beside that of the local public communitarian registration office, namely of the town hall of the administrative – territorial unit, the competence of Romania’s diplomatic missions/consular offices on the territory of which the death occurred. With regard to the drawing up of the death certificate based on a court’s decision to declare death, the bill replaces the three possible locations where this act could have been drawn up, as currently stipulated According to art.39, in this case the competence belongs to the local public communitarian registration office or the civil status official within the town hall of the administrative territorial unit from: The birth place of the individual declared dead; The domicile of the individual declared dead, if the birth certificate was issued by the local authorities abroad; The domicile of the person who requested the court decision to declare the death, in the event the place of birth and domicile of the deceased are unknown., with a single location, granting this competence to the civil status officer within the local public communitarian registration office/ the town hall of the administrative territorial unit from the last known residence of the individual declared dead, a necessary modification in view of correlating the current text of law with the provisions of art.947 line (2) of the Civil Procedure Code According to art.947 line (2) Civil Procedure Code, the “content of the decision will be communicated to the tutelary court from the last known domicile of the deceased, to appoint a curator, if applicable”. . To clarify certain situations that have occurred in practice, a new provision (line 4, art. 39) is introduced, which states that, in case the death is not certified by the court’s decision, it will be deemed to be the place of registration of that particular death. At the same time, a new article (39 ) determines the competence of the civil status structures in the country for the registration of the death certificates in case of Romanian citizens deceased abroad, who deaths have not been registered by the foreign competent authorities or by Romania’s diplomatic missions or consular offices (after the Ministry of Internal Affairs previously checks this non-registration abroad, with the help of the Ministry of External Affairs). 4.6. The administrative change of an individual’s name In its amended and modified form, Law 119/1996 will also comprise the provisions of Government Ordinance no. 41/2003 regarding the administrative assignment and change of an individual’s name, a normative act which will be abrogated once the future regulation becomes legally binding. Therefore, naturally, we will have in a single normative act, all the provisions related to the family names and first names of individuals. Among the significant novelties that have appeared in the matter, we would like to signal first the regulation of certain new cases of name change, more specifically the change of the first name, following certain situations that have previously appeared in the practice. Thus, according to art.41 line (2) letter e), the first name of an individual can be amended if a person is known by a first name and they would like to add it to the initial name, complying with the provisions related to the maximum number of three first names accepted by the bill. In the event one or both spouses wish to change the common or reunited family name they had during marriage, the agreement of the other spouse is requested in authentic form or in front of the civil status officer, thus supplying future evidence for the will of the spouses in this matter. A new hypothesis is that in which a person has a name changed abroad and fails to have a foreign administrative document, the only evidence provided being the passport, namely the identity document issued by the foreign authorities. We understand from the formulation of the norm that an individual has a different name in the passport/identity document, without having taken the steps for the administrative change of their name. We cannot but wonder how the foreign authorities have issued such documents without there being a previous underlying administrative document to attest the change of the name? We are of the opinion that prior to the enforcement of this bill, the provision of art. 41 line (2) letter n) should be clarified. Another situation that has occurred in practice and which is necessarily settled by line (3) letter d) of art.41, is the possibility that one of the spouses, who has kept their family name during the marriage, to return, using the procedure of administrative change of name, to the name held prior to the marriage (including the hypothesis of a name from a previous marriage, used after its dissolution) or the name acquired by birth (as currently regulated). The same authentic form of the ex-spouse’s consent (alternating with the consent expressed in front of the civil status officer) is requested by the future regulation, if the other ex-spouse wishes to use the family name held during the marriage after the divorce, to have the same name with the children resulted from that marriage. Another newly regulated situation is that in which the parent requests that the minor child entrusted to them following the divorce should use the family name acquired following the conclusion of a new marriage, with the current spouse’s consent, but also with the ex-spouse’s consent, expressed under authentic form or in front of the civil status officer. We believe that the legislator has found a legally unique, simpler solution for the situation in which the current spouse consents to give their name to the minor child resulted from their spouse’s previous marriage, without intending to adopt the child as well, thus dodging other legal effects of adoption. From a procedural perspective, to the documents that have to accompany the application for the modification of the name stipulated for the moment, the legislator adds the identity act of the individual and replaces the approval of the tutelary authority with that of the tutelary court, in the event the applicant is a minor child and requires the intervention of a state authority to verify the compliance with the child’s best interest. In view of eliminating the cases when both parents request the change of the family name, omitting to request the change of the minor child’s family name, art. 41, p. 7 of the bill stipulates that in such cases the change of the minor child’s family name is mandatory and it is made automatically. Moreover, to eliminate the events in which the application for the name change was made with the intention to dodge or hinder criminal charges, the bill stipulates that the application to change the first/family name will not be admitted if a court measure to limit the right to free circulation abroad (for the duration of such measure) has been ruled Under the conditions of Law no. 248/2005 regarding the regime of free circulation of Romanian citizens abroad, with its subsequent modifications and amendments. or if in the last 5 years the applicant was condemned for willful misconduct, namely if they were expelled or returned from the countries with which Romania signed agreements to this purpose. In view of clarifying the cases when another administrative procedure (such as rectification, typing, recording the mention of name change performed abroad) or a court procedure (such as actions to amend or modify the civil status) should be followed , the text of art. 41, p. 11 stipulates that the local public communitarian registration office or, as the case may be, the town hall which has received a name change application will have to communicate in writing to the applicant the reasons for which the application cannot be admitted. A modification which must be mentioned is that regarding halving the time for the settlement of name change applications, the term for admission or rejection of such applications being reduced from 60 to 30 days [art.41 p. 14, line (2)]. In case the name change application is admitted, according to the new regulation the applicant should be informed as soon as possible in written form (which was not stipulated before). Unlike the current regulation, according to which the name change disposition becomes legally binding as of the date of registration of the mention on the side of the birth certificate, the future regulation stipulates that the disposition becomes binding on the date it is handed in to the owner. If the applicant who is informed with regard to the admission of the application fails to report to the local public communitarian registration office or, as the case may be, to the town hall to have the disposition handed in within 90 days, it will be returned to the issuer, which cancels it. After the 90 days term, the name/first name change application becomes obsolete. With regard to the proof for the name change, if the current regulation stipulates that it is made with the disposition to admit the application or with the certificate issued by the local public communitarian registration office, based on this disposition, the future regulation states that the proof is made with the disposition to admit the name change and the new civil status certificate. The modification made serves to avoid the issuance of the identity act based on the disposition, without having the name change mentioned on the civil status document, the alternative criterion being replaced with a cumulative criterion. Regarding the mentions made on the side of civil status documents (birth, marriage or death certificates), in case of modifications made to the civil status of an individual, beside the determination of filiation, rectification, amendment or cancellation of civil status acts, the change of gender, etc., the future regulation also adds two more cases: the adjudication of incapacity, typing or translating the name, being natural that these situations that occur in the civil life of an individual should also be found on the side of the civil status documents. Conclusions The future regulation will allow, as a form of quantification of this miniature biography, represented by the civil status of an individual and its constitutive components, to be in agreement with the modern operation means of civil status registration, while harmonizing the Romanian legislation with the European legislation in the field. The bill simplifies a series of procedures, decreases or increases, as the case may be, a series of procedural terms in the matter and comes to the help of Romanian citizens living abroad, reuniting in one text of law of a special nature all the provisions regarding the civil status of individuals. It is clear that only after the enforcement of this normative act can the practice underline possible flays or lack of synchronization with future de facto situations, offering the occasion for new scientific research in this direction. Bibliography Legislation Bill for the modification and completion of Law no. 119/1996 regarding civil status acts, republished,https://www.juridice.ro/621939/modificarea-legii-cu-privire-la-actele-de-stare-civila-proiect-update-avizul-csm.html Convention no. 16 of the International Commission of Civil Status to which Romania adhered by Law no. 65/2012, published in the Official Gazette no. 277 from April 26, 2012. Government Ordinance no. 41/2003 for the administrative assignment and change of individuals’ names, published in the Official Gazette, Part I, no. 68 from February 2, 2003. Law no. 119/1996 regarding civil status acts, republished in the Official Gazette, Part I, no. 339 from May 18, 2012. Law no.287/2009 regarding the Civil Code, republished in the Official Gazette, Part I, no.505 from July 15, 2011. Law no. 134/2010 regarding the Civil Procedure Code, with its subsequent modifications and amendments, republished in the Official Gazette, Part I, no. 247 from April 10, 2015; Law no. 273/2004 regarding the legal regime of adoption, republished in the Official Gazette, Part I, no.739 from September 23, 2016;   Law no. 248/2005 regarding the regime of free circulation of Romanian citizens abroad, with its subsequent modifications and amendments, published in the Official Gazette, Part I, no.682 from July 29, 2005. MATERNITY/PATERNITY LEAVE, PARENTAL LEAVE FOR CHILD CARE – LEGISLATION, CHILD PSYCHOLOGY, HARMONIOUS DEVELOPMENT Raluca Laura DORNEAN PĂUNESCU* * university assistant, on payment by the hour, in the Faculty of Law - West University of Timisoara; university assistant, payment by the hour, within the Faculty of Political Sciences, Philosophy and Communication Sciences - West University of Timisoara; postdoctoral researcher of the UVT - Faculty of Law; lawyer Timis Bar; [email protected] Abstract For parents, the meaning of life is represented by children, because they are the reason they love and are loved. Being a parent is like a mission in space, full of challenges and experiments that imply time spent with the children. In this study, we intend to defer the normative framework applicable to maternity/paternity leave, parental leave for child care, and to observe the differences between these types of legal institutions and the conditions for granting, the duration and the amount of the allowances. In addition, we considered it appropriate to address this research in an interdisciplinary manner and to highlight aspects of child psychology in order to understand the overwhelming importance of these types of leave and the effective involvement of parents in the lives of their children. Key words: maternity/paternity leave, parental leave for child care, child psychology Maternity leave Emergency Ordinance no. 158/2005 regarding the leaves and the social insurance benefits Published in the Official Monitor, Part I no. 1074 of November 29, 2005, being amended by the following acts: OG 1/2006; OG 35/2006; L 399/2006; OUG 91/2006; OUG 36/2010; OUG 117/2010; OUG 68/2014; L 183/2015; OUG 99/2017; OUG 8/2018; L 302/2018. https://lege5.ro/App/Document/haytcmrz/ordonanta-de-urgenta-nr-158-2005-privind-concediile-si-indemnizatiile-de-asigurari-sociale-de-sanatate – consulted at13.09.2019., effective from January 1, 2006, ab initio disposes the general conditions to benefit from medical leave and health insurance benefits, establishing in art. 1 paragraph 1 the fact that the persons insured for leaves and social insurance benefits in the social insurance system have the right to medical leave and social insurance benefits, during the period when they have their domicile or residence on the territory of Romania, if: A. earns income from carrying out an activity based on an individual employment contract, an office report, detachment document or a special status provided by law, as well as other income assimilated to salaries, in compliance with the provisions of the European legislation applicable in the field of social security, as well as the agreements regarding the social security systems to which Romania is a party; B. realizes in Romania the income stipulated in letter. A, from employers from states that do not fall under the European legislation applicable in the field of social security, as well as the agreements regarding the social security systems to which Romania is a party; C. benefit from unemployment benefit, according to the law. According to art. 3 of the O.U.G. 185/2005: (1) The right to leave and social insurance benefits, to which the insured persons provided for in art. 1 paragraph (1) lit. A and B is subject, is conditioned by the payment of the insurance contribution for work, intended to support these allowances, regulated by the Fiscal Code. (2) The persons provided for in art. 1 paragraph (1) lit. C are insured in the social health insurance system for holidays and health insurance benefits without payment of a contribution. (3) The right to leave and social insurance benefits, to which the persons provided for in art. 1 paragraph (2) is subject, is conditioned by the payment of a contribution for the insurance for holidays and allowances in the 1% quota, applied on the chosen monthly income entered in the insurance contract, which is made income to the budget of the National National Health Insurance Fund. It is very important to specify that according to art. 1 paragraph 2 of the O.U.G. no. 185/2005 can be insured in the system of social health insurance, in order to benefit from holidays and indemnities of social health insurance, natural persons, other than those provided in par. (1), based on an insurance contract for holidays and health insurance benefits. Further, art. 2 of the O.U.G. no. 185/2005 establishes the types of medical leave and the social health insurance allowances Art. 2 of the O.U.G. 185/2005 provides in the first paragraph the following: (1) The medical leave and the social health insurance allowances, to which the insured persons are entitled, under the conditions of this emergency ordinance, are: a) medical leave and allowances for temporary incapacity for work, caused by common illnesses or accidents outside work; b) medical leave and allowances for the prevention of illnesses and the recovery of the work capacity, exclusively for situations resulting from work accidents or occupational diseases; c) medical leave and maternity allowances; d) medical leave and allowances for the care of the sick child; e) medical leave and maternal risk allowances., to which the insured have the right, among which is the medical leave and indemnity for maternity and the whole chapter IV of this normative act regulates the period of the maternity leave as well as the calculation of the maternity allowance. Specifically, according to art. 23 of the aforementioned ordinance, insured women are entitled to leave for pregnancy PREGNANCY, pregnancy, s. F. 5. Status of the pregnant woman; period when a woman is pregnant; pregnancy. https://dexonline.ro/definitie/pregina - accessed on 09.09.2019. and praise CHILDBEDs. F. while the woman is at confinement; CHILDBEDf. 1) Physiological state of a woman in the first six weeks after birth; state of confinement. ◊ ~ physiological state of an abnormality that evolves normally. ~ pathological condition of an abnormally evolving lesion. 2) Period of time as a woman is at confinement. https://dexonline.ro/definitie/l%C4%83uzie - consulted on 09.09.2019., over a period of 126 calendar days Romania complies with Recommendation no. 191 of the IOM (International Labor Organization), which encourages the ILO member states to increase the maternity leave period to at least 18 weeks, the minimum IOM standards being 14 weeks.. , period in which they receive maternity allowance, respectively: 1. pregnancy leave, which is granted for a period of 63 days before birth, 2. childbed leave, which is granted for a period of 63 days after birth. The ordinance establishes that these holidays can be compensated between them, according to the recommendation of the doctor and the option of the beneficiary, so that the minimum mandatory duration of the leave of absence is 42 calendar days. Based on the univocal and clear character of the previous provisions, prenatal leave (pregnancy leave) is optional, being left to the option of the insured woman as well as to the recommendation of the treating physician, as opposed to postnatal leave (child bed leave), which is mandatory for a period of 42 calendar days from the birth of the child. Regarding the monthly gross amount of the maternity allowance, it is 85% of the calculation base established according to art. 10 of the ordinance Art. 10 of the O.U.G. no. 185/2005 disposes the following: (1) For the persons provided for in art. 1 paragraph (1) lit. A and B, the basis for calculating the allowances provided for in art. 2 is determined as the average of the gross monthly incomes from the last 6 months out of the 12 months from which the contribution period is constituted, up to the limit of 12 gross minimum wages per country per month, based on which the insurance contribution for work is calculated. (2) For the persons provided for in art. 1 paragraph (1) lit. C, the basis for calculating the allowances provided for in art. 2 is determined as the average of the gross monthly incomes representing unemployment benefit, from the last 6 months out of the 12 months from which the contribution period is constituted, up to the limit of 12 gross minimum wages per country per month. (3) For the persons provided for in art. 1 paragraph (2), the basis for calculating the allowances provided for in art. 2 is determined as the average of the insured income, entered in the insurance contract, from the last 6 months of the 12 months from which the contribution period is constituted, up to the limit of 12 gross minimum wages per country per month.., and the maternity allowance is fully supported from the budget of the Single National Health Insurance Fund. Worldwide, the types of financing of cash benefits during maternity leave can be: - national social security system - social insurance related to employment (contributory system); - the employer, through the direct payment of the maternity allowances; - or a combination of the two. Studies show that employer accountability systems run counter to the interests of employed women, as a result of creating a possible source of discrimination against women. Specifically, employers can be reserved for hiring / maintaining / promoting pregnant workers / women with children, or they can find reasons to lay off pregnant employees / young mothers, in order to avoid maternity allowance expenses. In many cases, this results in the non-employment of women of childbearing age. States promoting the employer accountability system are supported by the ILO in the process of progressive transition to social security systems, as this is a priority for the technical assistance provided by the ILO. In order to benefit from holidays and social health insurance benefits, the persons mentioned in art. 1 must cumulatively fulfill the following conditions: a) to fulfill the minimum contribution period provided by the emergency ordinance, respectively 6 months performed in the last 12 months prior to the month for which the medical leave is granted. According to art. 7 paragraph (2) of the O.U.G. no. 185/2005: It is assimilated to the contribution period in the health insurance system periods when: a) the insured person benefits from the leave and allowances provided by this emergency ordinance; b) benefited from an invalidity pension; c) attended the day courses of the university education, organized according to the law, during the normal duration of the respective studies, provided that they graduated with a degree or diploma exam organized in the first session. The proof of graduation of the day courses of the university education is done with the diplomas issued by the authorized institutions, according to the law. Proof of the normal duration of the respective studies is done with the diploma of graduation, the enrollment sheet or with the certificate issued by the higher education institution; d) benefited from a monthly allowance for the period of the accommodation leave, according to Law no. 273/2004 regarding the adoption procedure, republished, of the allowance for the raising of the child according to the Government Emergency Ordinance no. 111/2010 regarding the leave and the monthly allowance for the raising of children, approved with modifications by Law no. 132/2011, as subsequently amended and supplemented.  (3) The periods provided for in par. (2) it is assimilated to the contribution period only if during these periods the insured person has not completed contribution periods within the meaning of the provisions of this emergency ordinance. By way of derogation from the provisions of art. 7, until July 1, 2018, the minimum insurance period for granting the rights provided in art. 2 paragraph (1) lit. a) -d) is one month accomplished in the last 12 months prior to the month for which the medical leave is granted.. b) to present the certificate from the payer of allowances from which the number of days of temporary incapacity for work leave taken during the last 12 months, except for the medical-surgical emergencies or the infectious diseases of group A. In the same register, we add that the insured persons benefits from leave and allowances, based on the medical certificate issued by the attending physician, according to the regulations in force, the attending physician being any doctor in contractual relation with the health insurance houses, as well as any other doctor with authorization of free valid practice, family doctor or specialist, who signs an agreement in this respect with the health insurance houses, under the conditions of this emergency ordinance. Certificates of medical leave can be completed both on paper and electronically, being transmitted by doctors on paper or by electronic means of remote transmission to employers / entitled persons, as the case may be, the latter being signed by doctors with electronic signatures qualified. Doctors have the obligation to complete the medical leave certificates in compliance with the Instructions on the use and the way of completing the medical leave certificates, approved by common order of the Minister of Health and the President of National Health Insurance House. Related to the normative provisions mentioned above, the legal nature of the maternity leave is that of right granted to the future mothers, recognized by the normative acts in force, respectively art. 2 paragraph 1 letter c) of the Emergency Ordinance no. 158/2005 regarding the holidays and indemnities of social health insurance, as well as tangentially through the Constitution of Romania Art. 26 of the Romanian Constitution, marginally entitled Intimate, family and private life, provides:   (1) The public authorities respect and protect the intimate, family and private life.   (2) The natural person has the right to dispose of himself, if he does not violate the rights and freedoms of others, public order or good morals. https://lege5.ro/App/Document/gq4deojv/constitutia-romaniei-republicata-in-2003 - accessed on 13.09.2019., the Labour Code Relevant provisions of the Labor Code regulate the following: Art. 50 The individual employment contract is legally suspended in the following situations: a) maternity leave; Art. 60 para. (1) The dismissal of the employees cannot be arranged: d) during the maternity leave; Art. 145 par. (4) When establishing the duration of the annual rest leave, the periods of temporary incapacity for work and those related to the maternity leave, the maternal risk leave and the leave for the care of the sick child shall be considered periods of activity performed. https://lege5.ro/App/Document/gi2tknjxgq/codul-muncii-din-2003 - accessed on 13.09.2019., Emergency Ordinance no. 96/2003 regarding the protection of motherhood at work places Published in the Official Monitor, Part I no. 750 of October 27, 2003. According to art. 2 of this normative act, the terms and expressions below are defined as follows: d) the employee that has recently given birth is the woman who has resumed her activity after the leave of childbed and asks the employer in writing the protection measures provided by law, attaching a medical document issued by the family doctor, but not later than 6 months from on the date of birth; e) the breastfeeding employee is the woman who, when resuming the activity after the leave of childbed, breastfeeds her child and notifies the employer in writing about the presumed beginning and end of the breastfeeding period, attaching medical documents issued by the family doctor for this purpose; g) childbed leave is the 42-day leave that the mother employee has to perform after birth, within the leave for pregnancy and childbed leave with a total duration of 126 days, which the employees benefit under the law; https://lege5.ro/App/Document/gq3tgmbw/ordonanta-de-urgenta-nr-96-2003-privind-protectia-maternitatii-la-locurile-de-munca - accessed on 13.09.2019.. At the international level, the International Labor Organization has exposed since the establishment (1919) various concerns in the field of maternity protection IOM report Maternity and paternity at work. International Law and Practice - Gender, Equality and Diversity Branch, Conditions of Work and Equality Department, International Labor Office, https://www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva /---sro-budapest/documents/publication/wcms_409460.pdf - accessed 09.09.2019. ILO: Maternity and paternity at work: Law and practice across the world (Geneva, 2014), source available on the web page: www.ilo.org/maternityprotection., which, together with child protection, is a major concern, respectively: - to protect the health of the mother, as well as the health of the newborn; -to allow women to successfully combine the role of production and reproduction; -to promote the principle of equal opportunities and treatment between women and men, respectively to prevent unequal treatment in the workplace United Nations (UN): Men in families and family policies in a changing world (New York, 2011) https://www.un.org/esa/socdev/family/docs/men-in-families.pdf - accessed 13/09/2019; M. O'Brien: "Fitting fathers into work-family policies: International challenges in turbulent times", in International Journal of Sociology and Social Policy (2013, Vol.33, No. 9/10), pp. 542-64, https://www.researchgate.net/publication/259062760_O'Brien_Margaret_2013_Fitting_Fathers_into_work-family_policies_international_challenges_in_turbulent_times_International_Journal_of_Sociology_and_Social_Policy_33_9.09-109. ILO: Maternity and paternity at work: Law and practice across the world (Geneva, 2014) with J. Ghosh: “Financial crises and their gendered employment impact. Emerging trends and past experiences ”, in R. Antonopoulos (ed.): Gender perspectives and the gender impacts of the global economic crisis (Routledge, 2014); ILO: Work – life balance. Governing Body GB.312 / POL / 4, 312th Session (Geneva, 2011), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_163642. pdf - accessed on 13.09.2019.. To this end, the International Labor Organization has adopted conventions in the field of maternity protection, the most recent being Convention no.183 / 2000 on maternity protection https://lege5.ro/App/Document/gi2dgmjq/conventia-nr-183-2000-privind-revizuirea-conventiei-revizuita-asupra-protectiei-maternitatii-din-1952-adoptata-la-cea-de-a-88-a-sesiunea-a-conferintei-generale-a-organizatiei-internationale-a-muncii- Convention No-183-2000-on-review-convention-Revised-on-protection-maternity-of-1952-adopted-to-one-of-a-88th-session-a-conference-general-a labour international organization. . It regulates different protective measures for pregnant women and for women who have recently given birth, such as: - prevention of exposure to risks to health and safety during pregnancy and after, - the right to paid maternity leave, - providing medical care services to the mother and child, - pauses paid for breastfeeding, -protection against discrimination and dismissal in relation to motherhood The period of maternity leave that meets the conditions of the ILO standards regarding the right to maternity leave is at least 14 weeks, meaning that, at present, most countries respect this duration, as provided for in Convention No. 183/2000. The United States offers maternity leave, but does not have general legal provisions regarding the allocation of cash benefits for maternity leave., - the guarantee of returning to work after maternity leave. According to a generally accepted position, maternity in safe and healthy conditions is the very basis of life. At the same time, motherhood is essential for respecting gender equality in the workplace, respectively increasing productivity among women. In the corollary, maternity protection is a fundamental right of work, enshrined in the most important universal treaties on human rights. At present, most countries have adopted normative acts regarding maternity protection at work. From a psychological point of view, the duration of maternity leave is essential and vital in order to allow mothers to recover after pregnancy and childbirth, as well as to return to the apt workplace, but also having the opportunity to properly care for their children. In the event that the duration of the maternity leave would be short, mothers would not feel ready to return to work, with the risk of giving up work. Paternal leave According to art. 1 of the Law on parental leave no. 210/1999 Published in the Official Monitor, Part I no. 654 of December 31, 1999, https://lege5.ro/App/Document/giytqnjt/legea-concediului-paternal-nr-210-1999 - accessed on 13.09.2019., parental leave is granted under the conditions provided by law, in order to ensure the effective participation of the father in the care of the newborn. The law stipulates that if the holder of the right to parental leave is insured within the state social insurance system, he has the right to a paid parental leave of 5 working days Countries such as Finland, Iceland, Lithuania, Portugal and Slovenia offer holidays in excess of two weeks. From a practical point of view, in all countries offering paternity leave, fathers decide whether or not they want to benefit from this right. In Chile, Italy and Portugal paternity leave is mandatory.. Essentially, the paternity leave is granted on request, in the first 8 weeks after the child's birth, justified with his birth certificate, which results the petitioner's father's quality and the allowance for the paternal leave is paid from the unit's salary fund and is equal to the salary corresponding to the respective period, not being supported by the state social insurance budget. If the father of the newborn child has obtained the certificate of graduation of the childcare course, the duration of the parental leave is increased by 10 working days, but the father can benefit from this provision only once. We propose by law the abolition of this legislative norm, since in the case where the parents have the second / third child at a large time from the birth of the first child, a reminder of the notions taught in the kindergarten is welcome, being very important and the help that the father can offer to the mother in the first days after birth, as well as the strong bond that can be formed between the father and the child, meaning that the increase with 10 working days of the duration of the paternal term should not be a singular benefit. From a psychological point of view, it tends to be more involved in raising and educating children from the father, since the paternity leave is a short period of leave granted to the father, immediately after the birth of the child, in order for the father to help care for the mother and the child. Thus, the father can take on the family responsibilities more closely and can be actively involved in the physical and emotional development of the child. However, the research Jennifer Baxter, Fathers and work: A statistical overview, Research summary, May 2019 - https://aifs.gov.au/aifs-conference/fathers-and-work - accessed 09/13/2019. shows that while today's fathers may be more involved in childcare, the number of hours they spend at work remains the same before and after having children. Fathers are more likely to choose flexible work or work from home, rather than reducing working hours to devoting themselves to raising and caring for their child. In a recent study Huerta, M. et al. (2013), Fathers' Leave, Fathers' Involvement and Child Development: Are They Related? Evidence from Four OECD Countries, OECD Social, Employment and Migration Working Papers, No. 140, OECD Publishing. http://dx.doi.org/10.1787/5k4dlw9w6czq-en http://dl.kli.re.kr/dl_image/IMG/03/000000012763/SERVICE/000000012763_01.PDF - consultat la 13.09.2019., it has been found that parents who benefit from maternity and paternity leave are much more attached to their young children, an aspect that can have a positive influence on gender equality both at home and at work, and may indicate changes in social and perceptions regarding the roles of parents and gender stereotypes that are dominant in our society. In the corollary, the father's involvement in raising and caring, respectively the education of infants and young children, has a positive effect on the child's development.. Parental leave for child care According to art. 12 of the Emergency Ordinance no. 111/2010 regarding the leave and the monthly allowance for raising children Published in the Official Gazette, Part I no. 830 of December 10, 2010 https://lege5.ro/App/Document/geztsmbwgi/ordonanta-de-urgenta-nr-111-2010-private-country-and-indemnification-lunara-for-create-copies- consulted at 13.09 .2019., the rights to the foster and child care leave are granted if the applicant cumulatively fulfills the following conditions: a) is a Romanian citizen, a foreign citizen or a stateless person; b) has, according to the law, the domicile or residence on the territory of Romania; c) resides in Romania together with the child / children for whom he / she requests the rights and takes care of the child's care and care. Therefore, the leave for raising the child up to 2 years, respectively 3 years, in the case of the disabled child is optionally granted, at the request of any parent of the child, and the monthly allowance benefits any of the natural parents of the child, if he meets the conditions foreseen by the emergency ordinance. Specifically, the persons who, during the last 2 years prior to the date of birth of the child, have achieved for at least 12 months income from wages and assimilated to wages, income from independent activities, income from intellectual property rights, income from agricultural activities, forestry and fish farming. , subject to income tax according to the provisions of Law no. 227/2015 regarding the Fiscal Code, with the subsequent amendments and completions, hereinafter referred to as income subject to tax, benefit from leave for raising the child up to 2 years, respectively 3 years, in the case of the disabled child, as well as a monthly allowance. The amount of the monthly allowance is 85% of the average of the net income realized in the last 12 months of the last 2 years before the date of the child's birth. The minimum amount of the monthly allowance may not be less than the amount resulting from applying a multiplication coefficient of 2.5 to the value of the reference social indicator, and its maximum amount may not exceed the value of 8,500 lei. The 12 months can also be constituted entirely from the periods in which the persons were in one or more of the following situations: a) have benefited from unemployment benefit, established according to the law, or have completed periods of contribution in the public pension system, under the conditions provided by the normative acts of special character that regulate the collective redundancies; b) they were in the records of the county agencies for employment, respectively of the municipality of Bucharest, in order to grant the unemployment allowance; c) have benefited from holidays and social health insurance benefits provided by the Government Emergency Ordinance no. 158/2005 regarding the holidays and the social health insurance allowances, approved with modifications and completions by Law no. 399/2006, as subsequently amended and supplemented; d) have benefited from medical leave and allowances for the prevention of illnesses and the recovery of work capacity, exclusively for situations resulting from work-related injuries or occupational diseases, based on Law no. 346/2002 regarding insurance for occupational accidents and occupational diseases, republished; e) have received an invalidity pension, according to the law; f) is in the period of temporary interruption of the activity, at the initiative of the employer, without ceasing the employment relationship, for economic, technological, structural or similar reasons, according to the law; g) benefited from leave and monthly allowance for child rearing; h) have received monthly leave and allowance for raising or, as the case may be, for the care of the disabled child; i) benefited from leave without pay for the raising of the child; j) is within the period of 3 months from the termination of a fixed-term employment contract and the beginning of another fixed-term employment contract, as defined by Law no. 53/2003 - Labor Code, as subsequently amended and supplemented; k) accompanied by the spouse sent on a permanent mission abroad; l) they performed or performed the military service on a voluntary basis, were concentrated, mobilized or imprisoned; m) attends, without interruption, the day courses of pre-university education, including in the "Second Chance" program, or, as the case may be, university at the level of the undergraduate or master's degree studies, as well as of the post-university education at the master's level, organized according to the law, at home or abroad, in an area recognized by the Ministry of Education, Research, Youth and Sport, except for the discontinuation of courses for medical reasons; n) have the quality of doctoral student, under the conditions provided by the Law of national education no. 1/2011, as subsequently amended and supplemented; o) is in the period between the conclusion of a form of pre-university education and the beginning, in the same calendar year, of another form of pre-university education, day courses, organized according to the law, attended without interruption; p) is in the period between graduating the day courses of the pre-university education, organized according to the law, and the beginning of the university education, day courses, in the same calendar year; q) is in the period between the conclusion of a form of university education, day courses, with or without a license or diploma examination, and the beginning, in the same calendar year, of another form of university education, day courses, organized according to the law, frequented without interruption; r) is in the period between the conclusion of a form of university education, at the level of the undergraduate or master's degree studies, as well as of the post-university education at the level of the masters, day courses, and the beginning, in the same calendar year, of another forms of university education at the level of the undergraduate or master's degree studies, day courses, organized according to the law, attended without interruption; s) is in the period between the completion of a form of post-university education, day courses, and the beginning, in the same calendar year, of another form of post-university education, day courses, organized according to the law, attended without interruption; t) is within 60 days from the completion of the compulsory education courses or, as the case may be, from the graduation of the day courses of the pre-university, university education at the level of the undergraduate or master's and post-university studies at the master's level, organized according to the law, with or without graduation examination, in order to employ or, as the case may be, the unemployment rate, calculated starting with the date of the 1 month following the completion of the studies; u) benefited from unpaid leave to participate in training and professional development courses at the initiative of the employer or to which he gave his consent, organized according to the law; v) is in the period between the graduation of the day courses of the higher medical education, organized according to the law, with the license exam organized in the first session, and the beginning of the first residence after graduation. A careful and corroborated reading of the aforementioned ordinance leads to the observation that if a person concurrently obtains from several sources income taxable, all the monthly income collected by it will be taken into account. Moreover, for the month of the child's birth, the due income for that month is taken into account, namely the income that the person would have received if he / she worked during the whole month or the cumulation between the income related to the days worked with the maternity allowance. It is necessary to add that the right to parental leave is granted on a non-transferable basis to the persons whose children are born starting March 1, 2012, if both persons in the respective family fulfill the conditions for granting it, as follows: : a) at least one month of the total period of the child-raising leave is allocated to one of the persons who did not request this right, called in the social environment as the FATHER'S MOON; b) in the situation in which the person mentioned in letter a) does not claim the right to leave, the other parent cannot benefit from the right to leave instead, in which case the person who initially applied for leave and child-raising allowance can opt for leave without pay or, as the case may be, for making income subject to tax. With regard to the protection of parents who benefit from the right to leave for child rearing, art. 25 para. 2 of the O.U.G. no. 111/2010 establishes that it is forbidden for the employer to order the termination of employment or service relationships in the case: a) the employee / employee who is, as the case may be, on leave for raising the child up to 2 years old, respectively 3 years, in the case of the disabled child An evaluation of the countries of the European Union has revealed a considerable level of discrimination on the basis of maternity in its Member States, observing different tactics of applying pressure on pregnant mothers / women who have recently become mothers to determine, through harassment, to grant themselves , respectively to submit applications for resignation, which have been reported in Romania, Spain and Lithuania. In Croatia, Greece, Italy and Portugal are reported practices of using "incomplete dismissal applications", represented by undated dismissal letters, which the workers were obliged to sign at the employment stage, and subsequently used to be dismissed in an indirect way if they were pregnant. ILO: Maternity and paternity at work: Law and practice across the world (Geneva, 2014), available source on the web page: www.ilo.org/maternityprotection beside the Madrina Foundation: The crisis in Spain marginalizes at work more than 9 women every hour midwives, Press Release (Madrid, 2010); S. Koukoulis-pilitopoulos: "The Country Report for Greece" in the Analysis of European Gender Equality Law (2012, No.2, pp. 79-85).. In the same sense, art. 51. of the Labor Code states the following: The individual employment contract may be suspended on the employee's initiative, in the following situations: a) leave to raise the child up to 2 years or, in the case of the disabled child, up to the age of 3 years. From a psychological point of view, too long periods of medical leave or the complete leave of absence for the raising and care of the child that most women benefit from, can diminish their attachment to career / work and the possibility to advance in paid positions, what results in wage stagnation / decline. In the same sense, given that in general, women are most likely to apply for and benefit from parental leave after maternity leave, especially if both parents benefit from this right, a reduction in the number of parents can be reduced. the insertion of women in the labor market and the exacerbation of gender inequalities in the workplace, as well as inequitable division of labor at home. Thus, in order to stimulate men to apply for and benefit from child-rearing and child-care leave, it should include granting compulsory allowances and providing adequate incentives and compensation during leave. In the corollary, childcare and childcare leave offers clear advantages for both employers and families, an aspect observed through various researches that found that employees can increase their morale, productivity and work attachment once new parents (especially mothers) they return to work. Furthermore, the leave offers economic security to families during significant life events and gives employees who are facing such events the peace of mind that they are not in danger of losing their jobs. Studies also indicate the positive effect on the health of the child and the mother, reducing the infant mortality rate and stress / depression for mothers. Moreover, leave can also promote gender equality, given the importance of the time both parents spend with their children. Sarah Lynn Kostecki, City University of New York, The Importance Of Paid Family Leave - Done Right, May 30, 2018 Children & Amiliesthe Importance Of Paid Family Leave - Done Rightgender & Sexuality, https://scholars.org/contribution/importance- paid-family-leave-done-right - accessed on 13.09.2019. Conclusions Childhood is a carousel with emotions, which implies that physical, intellectual and emotional development, as well as early education are the concern of both parents, as both cognitive intelligence and emotional intelligence are essential in the smooth and healthy growth of children. Infants and young children are much happier if they enjoy family life, especially in the first 2 years of life, together with one of the parents, discovering in a positive way their identity and personality, the environment, movement, communication and creativity. . Maternity leave plays a very important role for both the physical and mental health of the mother and the baby and the paternity leave favors an intense connection between the father and the newborn. Regarding the leave for the growth and care of the child, it denotes a special significance in the psychological, behavioral and social development, which implies a positive evolution of competence, trust, connectivity, character and compassion. Bibliography Articles. Specialized Studies. The ILO report Maternity and paternity at work. (2019). International Law and Practice - Gender, Equality and Diversity Branch, Conditions of Work and Equality Department, International Labor Office, https: //www.ilo.org/wcmsp5/groups/public/---europe/---ro-geneva /---sro-budapest/documents/publication/wcms_409460.pdf - accessed 09.09.2019. ILO: Maternity and paternity at work: Law and practice across the world (Geneva, 2014), source available on the web page: www.ilo.org/maternityprotection. United Nations (UN): Men in families and family policies in a changing world (New York, (2011). https://www.un.org/esa/socdev/family/docs/men-in-families.pdf - accessed on 13.09.2019. M. O'Brien: "Fitting fathers into work-family policies: International challenges in turbulent times", in International Journal of Sociology and Social Policy (2013, Vol.33, No. 9/10), pp. 542-64, https: //www.researchgate.net/publication/259062760_O'Brien_Margaret_2013_Fitting_Fathers_into_work-family_policies_international_challenges_in_turbulent_times_International_Journal_of_Sociology_and_Social_Policy_33_9209.09-29-29-29-29-22. ILO: Maternity and paternity at work: Law and practice across the world (2014) Geneva, with J. Ghosh: “Financial crises and their gendered employment impact. Emerging trends and past experiences ”, in R. Antonopoulos (ed.): Gender perspectives and the gender impacts of the global economic crisis (Routledge, 2014); beside Fundación Madrina: The crisis in Spain marginalizes every hour more than 9 women workers, Press Release (Madrid, 2010); S. Koukoulis-pilitopoulos: “The Country Report for Greece” in the Analysis of European Gender Equality Law (2012, No.2, pp. 79–85). ILO: Work – life balance. (2011) Governing Body GB.312 / POL / 4, 312th Session (Geneva), https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_163642. pdf - accessed on 13.09.2019. Jennifer Baxter, Fathers and work: A statistical overview, Research summary, May 2019 - https://aifs.gov.au/aifs-conference/fathers-and-work - accessed 13.09.2019. Huerta, M. et al. (2013), Fathers 'Leave, Fathers' Involvement and Child Development: Are They Related? Evidence from Four OECD Countries, OECD Social, Employment and Migration Working Papers, No. 140, OECD Publishing. http://dx.doi.org/10.1787/5k4dlw9w6czq-en http://dl.kli.re.kr/dl_image/IMG/03/000000012763/SERVICE/000000012763_01.PDF - Accessed 13.09.2019. Sarah Lynn Kostecki, City University of New York, The Importance Of Paid Family Leave - Done Right, May 30, 2018 Children & Amiliesthe Importance Of Paid Family Leave - Done Rightgender & Sexuality, https://scholars.org/contribution/ importance-paid-family-leave-done-right - accessed on 13.09.2019. https: //dexonline.ro/definitie/pregina - accessed on 09.09.2019. https: //dexonline.ro/definitie/l%C4%83uzie - accessed on 09.09.2019. 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A VISION OF GOOD FAITH AS A SAFETY VALVE IN CONTRACTS Marius FLOARE * PhD Junior Lecturer, Faculty of Law, Department of Private Law, Babeș-Bolyai University, Cluj-Napoca, Romania, e-mail: [email protected]* Abstract This paper will try to approach the “strategic” role of the concept of good faith in contracts. Even though there are numerous attempts to discover the “tactical” value of this concept by describing all its meanings in the field of contracts, we must take a broader view and see the essential role of good faith in this area of private law. We will only discuss good faith as the equivalent of the German notion of “Treu und Glauben” , meaning good faith and fair dealing, and we will not try to approach the meaning of good faith as an erroneous belief, the equivalent to the German “guter Glaube”. We will also discuss the different approaches to this “objective” good faith, taken by different continental private law systems mainly from Germany, France and Romania, starting from very similar statutory provisions. We will conclude with a case study about the doctrine of frustration of contract as a possible application of the broader principle of objective good faith. Keywords: functions, good faith, safety valve, loyalty, equity, frustration This study will try to approach the “strategic” role of the concept of good faith in the field of contracts. Even though there are numerous “tactical” approaches to this concept, which try to uncover all its meanings in the field o contracts, we must try to take a broader view and see the essential role of good faith in this area of private law. Naturally, our discussion will focus on the objective meaning of good faith as the equivalent to the German notion of “Treu und Glauben” which can be construed as “good faith and fair dealing” and we will not discuss the subjective meaning of erroneous belief (guter Glaube) which is adequate in the context of possession and real estate rights. The statutory provisions referring to contractual good faith in the modern codes of France (Napoleonic Code of 1804), Romania (Civil Code of 1864) and Germany (B.G.B. of 1896) are very similar, but their consequences in the legal life were completely different. To explain these different approaches, one of the starting points must be that the concept of contractual good faith is one of the “safety valves” which allow the current societal moral values to deeply penetrate contracts, with the purpose of ensuring their usefulness, both for the individuals involved and for society as a whole, thus answering to reasonable expectations and enhancing the economic usefulness of the contract. The modern legal systems which also had other “safety valves” at their disposal, or where the social-economic pressure to use this good faith “valve” was not sufficiently powerful, did not use it with the same vigour and as early in their historical evolution of private law. The content of the concept of good faith in the field of contracts is defined by doctrine through naming more or less thoroughly the various duties and obligations which bind the parties: loyalty, cooperation, tolerance, coherence, patience, sincerity, honesty and perseverance (Ancel (2011): 92). The evolution of the approach to contractual good faith in the last millennia is defined by a permanent interaction between law and the social or religious morals that infiltrate the former. The rigour and rigidity of purely legal concepts always gives ground to social pressure. Legal norms frequently represent a static image of the social vision at the time of their enactment and that is why we need fluid general concepts, such as good faith, that function as a true “safety valve”, which allows the connection between contract law and the evolving morals and social-economic needs. Good faith in contracts is a concept with a “safety valve” role, which fills the unavoidable deficiencies of any legal system, that is sometimes too abstract and always unavoidably incomplete in regard to the variety of private law litigation, which also completes every contract that the economic analyses of law has “stigmatized” as being insufficient for the variety of possible real-life situations, which diminishes conflicts specially when the ad litteram legal or contractual solutions violently collide with society's need for equity; good faith is called the “drop of social oil” (Auer (2006): 25) which ensures the functioning of the system of private law and its adaptation to new challenges. Any rule that gives concrete content to the vague and flexible principle of good faith in a specific norm will eventually gain autonomy from good faith and thus separate from it. A specific rule, developed based on the principle of good faith in order to compel a party to take into account the interests of the other party will, at a certain time, also be amended on the grounds of good faith, thus compelling the second party, whose interests had already been given proper consideration, to take care of the legitimate interests of the first party. Historically, good faith had an initial role to compel parties to perform based on informal contracts, even if there was no consideration, to prioritize the meaning given by the parties to the contractual terms in spite of their literal meaning and finally to even prioritize substantial equity over the parties' intended meaning of the contract (Storme (2003): 3-4). Legal doctrine has identified up to four functions of good faith in contracts: interpretation, complementing, correcting (abuse of rights) and adaptive function (the doctrine of frustration of contract). The first three are also the functions of praetorian law in regard to ius civile in the classical Roman definition of Papinian Ius praetorium est, quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam – Digeste 1,1,7 and thus arises the rhetorical question whether these are functions of good faith itself or they are the functions of the judge (Hesselink (2002): 201). The theory of the functions of good faith has arisen as an attempt to limit judicial activism by trying to give substance to the principle in its institutional and formal dimensions (Floare (2015): 87-89). In the French and Belgian civil law, the primary function of good faith is in the area of contract interpretation, mainly to interpret those in accordance to the common intention of the parties which is, from a historical point of view, is a way of correcting contracts especially by relating to the older rule that had favoured literal interpretation (Masse (1994):224; Storme (2003): 4 ). The adaptive function of good faith is illustrated by the doctrine of frustration, which allows for the modification and the re-balancing of a contract when unforeseen circumstances occur during contract performance, making contractual performance unfit for the parties initial intent (Lefebvre, 1996: 352). The creative and “safety valve” role of good faith in German civil law is unanimously recognised today, the concept being the bedrock which allows the grounding in statutory provisions for a series of theories and “doctrines” that have gradually gained autonomy and have drifted from the original “cradle” of good faith, thus becoming self-sustaining concepts nowadays, with particular provisions in the German Civil Code or other special statutes, thus maintaining only a historical link to good faith. This creative and ulterior drifting away phenomenon allowed the downsizing of the Staudinger commentaries about article 242 of the German Civil Code, recent editions having “only” about 500 pages (Markesinis, Unberath, Johnson (2006), p. 120). Good faith works as a true private law “safety valve” also at the performance stage of contracts. Even if the flexibility and the ubiquity of this powerfully moral concept have been frequently criticized, some suggesting its replacement with more precise notions such as reasonableness ( Ramparany-Ravololomiarana (2009)), abuse of rights (Stoffel-Munck (2000)), loyalty (Picod (1989)), coherence (Houtcieff (2000), Houtcieff (2009): 2008-2009), we believe that none of the alternatives has the breadth and versatility of this original concept, the moralizing colouring of which is frequently just an illusion, but an illusion which gives it an increased legitimacy to sustain with a legal and traditional basis diverse innovations from legal literature and case law. Good faith always begins from a moral and equitable contractual standpoint, the excesses of contractual solidarity and altruism being diminished by the economic and utilitarian colouring that this concept has achieved in the latter half of the 20th century. Influenced by utilitarian philosophical currents and the North American-inspired school of “Law and Economics”, this traditional and multi-millennial civil law concept has been “re-valued” as a quasi-objective benchmark of the contractual relationship, the relational and non-antagonistic perspective on contracts being closer to the economic reality, where long-term or prospectively renewable contracts are abundant (White (2001): 683-684, 690-695). By analyzing the effects of good faith on contract performance, we can identify at least three traps: the altruism trap of contractual brotherhood (Thieberge-Guelfucci (1997): 357) or of seeing the contract as a small universe (Demogue (1932): 9), the cynicism trap of good faith as a notion without its own content (Houh (2005), Hesselink (2002): 193-223) or the formalism trap of seeing good faith as a merely moral and subjective concept that overshadows and sometimes unfortunately obstructs the activity of more precise institutions such as the abuse of rights (Stoffel Munck (2000)), reasonableness (Ramparany-Ravololomiarana (2009)) or loyalty (Picod (1989)). Good faith in contracts had been targeting, in the classical analysis of the Napoleonic Civil Code and its derivatives, only the behaviour of the debtor who was required by the pacta sunt servanda principle to honour his given word and duly perform his duties, good faith helping to solve the dilemma of whether contract performance had truly been adequate and useful or if the debtor acted in bad faith or at least without good faith. The modern vision expands to the creditor the duty to act in good faith and avoid any bad faith behaviour, him being also a debtor in reciprocal contracts, but in his capacity as a creditor he might have certain discretionary rights or mere factual opportunities to influence the way in which the other party's performance follows through, the creditor being able to hinder or facilitate performance, or to avail himself of lex commisoria or rights to unilaterally denounce the contract. Good faith is a ubiquitous but not an immovable concept in the field of contracts, the importance of which has oscillated along the centuries, from being considered an essential principle of contracts, to a mere marginal interpretation rule without its own specific meaning. Its force and attractiveness come precisely from its inner flexibility, which allows it to fulfill the role of contractual “safety valve” in different cultures, allowing the ever changing morals of the society to infiltrate the parties deal and the complementary legal provisions. Good faith in contract law usually has three dimensions: the substantial dimension of circumscribing the duties to a contractual ethic, the formal dimension of good faith as a flexible standard, the institutional dimension of the freedom of the judge to create law based on open standards. These three dimensions of good faith can be named called differently, the substantial dimension can be replaced by a duty to cooperate, the formal dimension can be replaced by the concept of reasonable expectations and the institutional dimension can be replaced by adjudicating in equity. Divergences can anyway appear between individual ethics, which promote freedom of contracts, and the altruistic concern for the fate of the other, between the danger of judicial arbitrariness and the need for jurisdictional flexibility to promote equity, between the legitimacy of creating broader rules by the courts and the need to constrain the judge in creating general norms (Summers, White (2010): 11-13). There is also a tendency to narrow the meaning of contractual good faith only to its substantial dimension and transform it in an ethical concept, expressing only an altruistic morality rule. The content of good faith can thus achieve a traditional subjective hue, which narrows good faith to the absence of bad faith, the latter meant as malevolent intent (animus nocendi), this approach being favourable to the restrictive use of the concept of good faith by the judiciary (Summers, White (2010): 11-13). Another reductionist tendency affirms the lack of any substantial meaning for good faith, the lack of any internal coherence of the so-called rules of good faith and that any objective legal rule could be based on this principle. Under the cover of good faith there are hidden all the additions and corrections made to previous case law by the judiciary, whatever their concrete meaning. The only role for a statutory provision about good faith would be to remind the participants to contracts that courts frequently make the law themselves (Hesselink (2002): 208-220). Good faith in contracts has the merit of being able to be valued both from a moralistic and equitable standpoint, but also from an economic-utilitarian point of view, thus reaching, in different ways but guided by the same principle, to the same finality of contract, which can only be a positive one from a social and economic standpoint, of increasing the value for each individual participating in the transaction and, indirectly, benefiting society as a whole. Regardless of our chosen approach, it is a widely accepted truth than any statutory provisions containing fluid notions such as good faith is really a “delegation” of normative powers to the judiciary (Gregoire (2010): 37). Good faith is used by judges to mitigate the rigour of the general rule, the same as with concepts such as urgency and force majeure. The law needs similar “safety valves” to avoid the excesses of an overly meticulous or technical statute with the purpose of maintaining a just balance between legal truth and factual reality (Gabet (2004): 63-64). In the same way, the German Civil Code (B.G.B.) of 1896 has a very careful attitude regarding the duty to exercise contractual rights in accordance to the good faith principle. The duty of good faith is specified only in article 242, which at first seemed only a marginal provision, explicitly concerning only the performance of an obligation. The courts have used this statutory provisions and have transformed it into a general principle that governs and transforms the whole German law of contracts. Article 242 of the B.G.B. has become a starting point for numerous new “doctrines” and for the modification, undermining or repealing of older ones. In numerous cases this principle has been used to avoid drastic or inequitable consequences and has been viewed many times as a “magical” solution to stamp out all the “rough edges” of private law. Nevertheless, as time went by, there were numerous critical viewpoints regarding the excessive proliferation of equitable reasons within established legal principles. On the other hand, there has been a unanimous welcome to some legitimate extensions to the principle from article 242 of the B.G.B., which have become so well established that they are now considered an unavoidable component of modern law (Zimmermann (1992): 675). The attempt to define the concept of good faith in the field of contracts might seem at times like a struggle with windmills, an attempt to shoot perpetually moving “targets”. Although, in both common law (Bayley (2009): 97-114) and especially in continental civil law countries, there have been doctrinal attempts to define the concept of good faith, the results were heterogeneous and mostly inconclusive. The pinnacle of circular definitions was reached by defining good faith, by exclusion, as an absence of bad faith (Summers (1968): 195) and, in turn, defining bad faith as an absence of good faith. Good faith is hardly distinguishable from equity, both of them having an objective hue in the field of contracts. Besides the proximity of the relevant statutory provisions from the French Civil Code of 1804 and our ancient Civil Code of 1864, the concept of equity is itself complex and fluid as much as good faith. It allows the judge to mitigate the strict enforcement of a rule, depending on the particular circumstances of the case (Hesselink (2002): 195). It also allows the filling of the contractual gaps, depending on what the judge finds reasonable. In this latter understanding, equity is no different from good faith, both the duty to inform and the duty of care uncovered by French case law being potentially covered by any of these two concepts. They both carry the same advantages and dangers. Good faith and equity both work as true “safety valves” that give flexibility to contracts. They allow the repression of certain behaviours, guiding interpretation and thus moralizing contracts. Both concepts are relevant to an evolution of law that diminishes the role of the parties' will and an attempt to reconcile the subjective and objective elements of contract by combining the useful with the just. The dangers arise from the fact that this reconciliation is performed under the guidance of the judge, whose role and discretionary power increase so much so that the temptation to rebuild the contract according to his or her views on what good faith and equity are might seem irresistible (Tallon (1994): 25). Similarly to good faith, equity is also a complex concept which can have two meanings, one objective and the other subjective. Objectively, equity is tied to the notion of justice, meaning that everyone is to be given his or her due and every person must be treated equally. This way, equity reminds us of the ideas of equality and equilibrium. Subjectively, equity is a rule that contradicts the statutory provision and which only exists because the legal provision creates injustice in a particular case. Subjective equity seems not to find itself a place in a civil law system in which rules are established by the legislators and not by the courts. However, its mere existence can not be denied when parliament compels the judiciary to rule based on a concept as flexible as good faith, making the judges decide the case based on what they find to be just and equitable. Nonetheless, good faith is not synonymous with equity because it has a much wider field of practice. Good faith strays further from equity when its range is limited in the name of transaction security. As much as equity, good faith is adapting the law to the evolution of the morals and values of the society, being an equitable mechanism, an instrument which allows the law to answer to the needs of contractual justice. Each time the legislators allow the courts to solve a case by referring to what the judges think to be reasonable or appropriate, they are in fact allowing to judge in equity. The subjective character of equity tends to diminish over time, when the case law gets to use the notion of good faith and to uncover the duties that arise from it. The courts that take into consideration previous case law and established solutions are in fact slowly drifting away from judging in equity (Lefebvre (1996a): 24-25) The doctrine of frustration as a function of good faith (Floare, M. (2017), volume 8: 434-438) Romania's Constitutional Court has relatively recently established in the obiter dicta of Decision 623 of 2016, par. 96-101, with a strange certainty for all those who are familiar with the debates on the doctrine of frustration from our legal literature (Zamsa (2012): 1329-1331, Zamsa (2006)), that a judicial revision of contracts for frustration of performance has been applied by our inter-war case law and the post '89 case law, being an apparent exception to the rule of autonomy of the will and being grounded on good faith and equity in contract performance, provided by article 970 of the 1864 Civil Code, also being a complementary principle to the pacta sunt servanda general principle from article 969. The detractors of this viewpoint have on their side vast legal literature and civil case law, from both Romania and France (Malaurie, Stoffel-Munck, Aynes (2009): 396-399), which have never significantly recognised this adaptive function of good faith in contracts (Popa (2017): 117-118; Zamsa (2006): 222). The Romanian civil law jurisprudence, the concrete identified cases of application of the doctrine of frustration under the 1864 Civil Code have been few and isolated, atypical in the inter-war period (Popa (2017): 117) and were mainly about rent revisions in long-term rental agreements and rarely in bank contracts (Popa (2017): 117; Zamsa (2006): 231-233, Hamangiu (1999, II): 468). In France, the writers of the 1804 Civil Code have not provided anything specific on the frustration of contracts, being probably traumatized by the instability generated by the French Revolution, but also the relative economic and social stability of the 19th century has not required the case law to adjudicate it (Malaurie, Stoffel-Munck, Aynes (2009): 397). The pertinent French case on frustration of contract is a decision by the civil section of the French Supreme Court from March 6th, 1876, which had quashed the decisions of the lower courts, regarding an increase from 15 cents to 30 cents per 1900 square meters of the payment for extracting water for crop irrigation from the canal of Craponne, level of payment which had been established more than three centuries previously, in the 16th century, the supreme court thus giving an absolute value to the parties' autonomy of the will (Malaurie, Stoffel-Munck, Aynes (2009): 397). French civil law legal literature has not withheld discussing the necessity and usefulness of applying the doctrine of frustration, to the classical reasons about the supremacy and absolute character of the parties' autonomy of the will being opposed arguments which favour respecting the parties' implied will, such as the theory of the disappearance of the consideration for a party's performance, the theory of the contract being concluded as long as things remain unchanged (rebus sic stantibus), or reasons of equity and economic or social usefulness of contracts (Malaurie, Stoffel-Munck, Aynes (2009): 398-399) that would require at least a duty for the parties to renegotiate the contract, derived from the duty of good faith in contract performance of article 1134 paragraph 3 of the initial French Civil Code (Picod (1989): 199-229). The last great treatise on the law of obligations under the ancient Civil Code (Pop (2009, II): 533-541) synthesized the evolution of the civil law legal literature and court cases from Romania and France, showing that the firm rejection of the judicial revision, in the strictest sense, of contracts for frustration looks obsolete nowadays, good faith and contractual solidarity being the grounds that would allow contractual revisions in cases of frustration, the contract being dynamically adaptable to changes in the economic and social environment (Pop (2009, II): 540). The author detected powerful signs of the tendency of Romanian case law and legal literature to allow for the judicial revision of contracts in cases of frustration, even if the concrete cases at the time were mainly in the field of rent adjustment (Pop (2009, II): 539). In this context of judicial contract revision for frustration, the above mentioned author showed that the principle of paying back the same nominal amount of money, which had been an argument for not applying the doctrine of frustration, is not a public order principle but only complements the parties' implied will since the time of Dimitrie Alexandresco and Constantin Hamangiu (Pop (2009, II): 536-537), our previous Civil Code having a provision in article 1579 paragraph 3, borrowed from article 1822 of its contemporary Italian Civil Code, which was missing from the 1804 French Civil Code, that seemed to favour a principle of paying back the same value, the complete opposite to paying the same nominal amount (Pop (2009, II): 537). Looking at comparative law, the principle of good faith in contracts has this adaptive meaning, besides the interpreting, complementing and moderating functions, which is implemented by the doctrine of frustration. The main statutory provision on good faith in contracts in German civil law is article 242 of the German Civil Code, complemented by article 157 regarding contract interpretation, which states that they will be interpreted according to the requirements of good faith, taking into account the usual customs (Whittaker, Zimmerman (2000): 18). The previously mentioned legal provisions are in no way more generous than those of the French Civil Code of 1804 or the Romanian Civil Code of 1864. What differs markedly between these law systems is the manner and the amplitude of applying this concept in case law, the French civil law giving it its due importance only in the latter half of the 20th century, while Romanian case law has successfully ignored it as an autonomous concept in the field of contracts up until the first decade of this century (Floare (2015): 91-92). The German approach to good faith in contract performance can be described as the three-fold division of the functions of good faith and their subsequent fitting in ever expanding categories (Fallgrupen) of cases where the principle was used. The courts decide what good faith requires in the specific circumstances of each case but the judge can not merely reason in equity but has to determine the requirements of good faith in a manner as objective as possible (Hesselink (2002): 196-197). With the joint endeavour of both legal literature and the courts, the case law is rationalized, objectified and classified in an inductive manner, the legal literature reacting to particular cases and trying to regroup them in a coherent, rational and predictable system. From this effort emerged the system of good faith, a coherent and intelligible ensemble of specific duties, prohibitions, rules and doctrines that make up the core of this open norm (Hesselink (2002): 196-197). Such a situation where courts were compelled to intervene was that of unforeseen circumstances, correcting the compulsory character of contracts in the absence of specific statutory provisions, the 1896 German Civil Code being written in an age of stability, optimism and 19th century legal pozitivism (Markesinis, Unberath, Johnston (2006): 131). The creative function and the following of substantial equity in case law that German contract law gave good faith led to the emergence of the theory of the disappearance of the grounds for the transaction (Wegfall der Geschäftsgrundlage), the equivalent of the frustration of contracts from our legal system, that has been born in the age of hyperinflation after the First World War but which has also found its relevance in the post-German unification period in order to adjust some contracts to the spectacular and unforeseen changes of economic and political circumstance (Auer (2006): 33). In Germany, the judicial revision of contracts for frustration, based on good faith, met a wide and early acceptance, the first significant precedent being a decision by the Imperial Court of November 28th, 1923, that used this concept to abandon the principle of paying back the same nominal amount of money in the unforeseen circumstances generated by German hyperinflation, where 1 golden Mark was the equivalent of 522 billion paper Marks in November 1923 (Whittaker, Zimmermann (2000): 19-21). The reason for the divergent evolution of the two major civil law systems, the French one, to which we are tributary for over 150 years, and the German one, starting from a similar statutory provision, must be searched in the different nature of the two systems as a whole and the different historical times of their codification and of reaching the stability of the jurisprudence based on those codes. The French Civil Code of 1804 was based on flexible principles, concisely written, also having a general principle for tort liability that had allowed the intervention of the judiciary in situations that would otherwise have required a flexible concept such as good faith. The German Civil Code of 1896 had been meant to be an all-encompassing statute, lacking “rubber rules”, but the social needs later required, when a social and economic context arose that was different from the one at the time of writing the Civil Code, only 30 years afterwards, to use one of the few “safety valves” that this Code had, the principle of good faith in contract performance. Our civil legal system has benefited for over 150 years from a text in article 970 of the Civil Code that was very similar to article 242 of the B.G.B., some legal literature (L. Pop (2009, II): 538-540), Zamsa (2006)) from the first decade of this century being favourable, starting from isolated but justified applications of the principle, to a generalization of judicial review of contracts for frustration, based on the adaptive function of good faith in contracts and the principle of contractual solidarity. The pressing social need for a doctrine such as this arose especially in the transition interval from the ancient Civil Code of 1864 and the newly adopted Civil Code of 2009, which only came into force on October 1st, 2011, and which specifically provided for the doctrine of frustration, according to the modern viewpoint from comparative law. During 2006-2010, under the ancient Civil Code, there was a significant number of bank loans for 20, 30 or even 40 years. When the world financial and economic crisis of 2008-2009 struck, with its effects being felt event today, these contracts begun to experience the classical symptoms of frustration of contracts, the regular payments of the debtors becoming increasingly unbearable for different unforeseen reasons: massive devaluation of the local currency in which they were payed compared to the loan currency, decrease in revenues because of unemployment or changes in places of employment, devaluation of real estate securities that could have served to pay back the loan and so on. In the current Civil Code, there is no need to use article 1.170 and the general principle of good faith in contract performance to justify the judicial revision of contracts in unforeseen circumstances, because the specific provisions of article 1.271 paragraphs 2 and 3 describe the requirements and effects of frustration without calling for the “safety valve” of good faith. Good faith has possibly always been only an “emergency” justification for the judicial revision of contracts due to the human instinctive need for contractual equity and to the common historical and moral source with the clausula rebus sic stantibus (Markesinis, Unberath, Johnston (2006): 320). The doctrine of frustration is autonomously recognized by the new Romanian Civil Code (Zamsa in Baias et al (2012): 1329-1331) and other modern civil law systems, like the German one, which has codified in the 2002 revision the previous inter-war case law on the disappearance of the grounds of the transaction, or the Dutch system, that regulated it in article 6:258 of their new civil code, which partially came into force in 1992 (Dankers-Hagenaars (1994): 316-317). We believe that, today, frustration is a doctrine which is distinctive from good faith in contract performance, with a more objective content compared to the latter, and the connections between these two institutions are of a more historical nature, going back to the first attempts to justify frustration on the clausula rebus sic stantibus or on a flexible general principle such as good faith, that has this “safety valve” role wherever current law has no solutions. The dissolution of contracts for reasons of economic expediency is not seen in such a context as a right of the debtor, as it happens in the extreme case of seeing all contractual obligations as an alternative between specific performance and the almost discretionary choice of the debtor to pay expectation damages, but merely as a result of the duty of both parties to behave in good faith all along during contract performance, even if the payment from the initial creditor is substantially lower than a newer offer received by the debtor. The doctrine of frustration provided by article 1.271 of the Civil Code, which itself prioritizes renegotiation and contract adaptation, could also be used in cases of manifest economic inefficiency of the initial contract, which came about due to exterior circumstances that were unpredictable and arose only after the contract was signed. We will readily admit that the reason for the frustration provision of the new Civil Code has more to do with equity than maximizing economic efficiency, but the good faith “safety valve” in contract performance could work even when one of the parties can make a better deal and the other party has no legitimate and reasonable motive to refuse the amicable cancellation of the contract and thus receive integral and diligently calculated damage payments, which take into account all the damages incurred by non-performance. Conclusions The “safety valve” of good faith in contracts is insufficiently recognized and used in current Romanian case law. Besides the adaptive function of good faith, which would have allowed a wider range for the doctrine of frustration even under the Civil Code of 1864, because the whole normative “apparatus” of article 970 is almost identical to article 242 of the B.G.B., which was the root of the widespread application of the theory of the disappearance of the ground of the transaction in German Civil law, not even the complementary function of good faith enjoys a widespread use in our system. Both article 970 paragraph 2 of the Civil Code of 1864, which is still applicable for the contracts that were concluded before October 1st, 2011, and article 1.272 paragraph 1 of the new Civil Code would allow for a more pronounced judicial “activism”, especially in the frequent consumer cases where some abusive contractual provisions are struck out and the contract becomes incomplete, but the courts frequently refuse to complement it with equitable remedies on the erroneous ground that they are not provided for by the law, although the principle of good faith has been used for centuries for similar interventions in contracts. Comparative law and the history of private law offer enough benchmarks for recognizing and using, in contemporary Romanian private law, the “safety valve” role of good faith in contracts. It allows the judge to write law in concrete cases, where applicable law is deficient, by formally grounding his or her decision on an established legal principle. 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(2002), The New European Private Law: Essays on the Future of Private Law in Europe, The Hague, London, Boston, Kluwer Law International Houtcieff, D. (2000), Le principe de cohérence en matière contractuelle, Thesis, Université de Paris XI, Cujas Library Malaurie, P.; Aynes, L.; Stoffel-Munck, O. (2009), Drept civil. Obligațiile, translated by D. Dănișor from the 3rd French edition (2007), Wolters Kluwer, București Markesinis, B.; Unberath, H.; Johnston, A. (2006), The German Law of Contract - A Comparative Treatise, Second Edition, Hart Publishing, Oxford and Portland Picod, Y. (1989), Le devoir de loyauté dans l'exécution du contrat, L.G.D.J., Paris Pop. L. (2009), Tratat de drept civil. Obligațiile, volume II, Ed. Universul Juridic, București Ramparany-Ravololomiarana, H. (2009), Le raisonnable en droit des contrats, L.G.D.J., Paris Stoffel-Munck, P. (2000), L'abus dans le contrat – Essai d'une théorie, L.G.D.J., Paris Summers, R.S.; White, J.J., Uniform Commercial Code, Sixth Edition, West - Thomson Reuters, 2010 Zamșa, C.E. (2006), Teoria impreviziunii. Studiu de doctrină și jurisprudență, Editura Hamangiu, București Zimmermann, R. (1992), The Law of Obligations - Roman Foundations of the Civilian Tradition, Juta & Co Ltd, Cape Town Scientific articles Ancel, P. (2011), Les sanctions du manquement à la bonne foi contractuelle en droit français à la lumière du droit québécois in “Revue Juridique Thémis” (Québec), volume 45:1 Auer, M. (2006), The Structure of Good Faith: A Comparative Study of Good Faith Arguments, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=945594, retrieved in 2013 Dankers-Hagenaars, D. (1994), Rapport néerlandais, Travaux de l'Association Henri Capitant – Journées Louisianaises 1992 – La bonne foi – t. XLIII, Litec, Paris Gabet, C. (2004), La vérité, l'apparence et la rétroactivité en matière immobilière în La verité - Rapport annuel 2004 de la Cour de Cassation, La documentation Française Grégoire, M.A. (2010), Économie subjective c. Utilité et intérêt du contrat – Réflexions sur les notions de liberté, de responsabilité et de commutativité contractuelles, à la suite de la codification du devoir de bonne foi, La Revue juridique Thémis ( Québec), volume 44:1 Houh, E.M.S. (2005), The Doctrine of Good Faith in Contract Law: A (Nearly) Empty Vessel?, Utah Law Review, volume 1 Houtcieff, D. (2009), L'importance d'être constant: vers une consécration du principe de cohérence, Recueil Dalloz, volume 29 Lefebvre, B. (1996), La bonne foi: notion protéiforme in Revue de Droit de l'Université de Sherbrooke (Québec), volume 26:2 Lefebvre, B. (1996), La justice contractuelle: mythe ou réalité?, Les Cahiers de Droit (Université Laval - Québec), volume 37:1 Masse, C. (1994), Rapport général in Travaux de l'Association Henri Capitant – Journées Louisianaises 1992 – La bonne foi, tome XLIII, Litec, Paris Popa, I.-F. (2017), Impreviziunea și creditele oferite consumatorilor. Constituie darea în plată și conversia valutară remedii ale impreviziunii?, Revista Română de Drept Privat, issue 1 Storme, M.E. (2003), Good Faith and the Contents of Contracts in European Private Law in Electronic Journal of Comparative Law, volume 7.1, available https://www.ejcl.org/71/abs71-1.html, retrieved in January, 2019 Summers, R.S. (1968), “Good faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, Virginia Law Review, volume 54 Tallon, D. (1994), Le concept de bonne foi en droit français du contrat, Centro di studi e ricerche di diritto comparato e straniero, Roma Thiebierge-Guelfucci, C. (1997), Libres propos sur la transformation du droit des contrats, RTD Civ volume 31-32:2 Whittaker, S.; Zimmermann, R. (2000), Good faith in European contract law: surveying the legal landscape in Whittaker, S.; Zimmermann, R. (editors), Good Faith in European Contract Law, Cambridge University Press, Cambridge White, J.J. (2001), Good Faith and the Cooperative Antagonist (Symposium on Revised Article 1 and Proposed Revised Article 2 of the Uniform Commercial Code), Southern Methodist University Law Review, volume 54:2 THE ROMANIAN CONSTITUTIONAL COURT AND THE SOLUTION OF THE RCC COMPLAINTS IN THE ACTUAL SOCIAL CONTEXT Neculai LUNGEANU Assistant Professor Phd, "Dunarea de Jos" University Galati (Romania) - Faculty of Administrative and Political Legal Sciences [email protected] Abstract "The idea of ​​bending over this issue has arisen due to the more and more frequent occurrence in the media of the debates and polemics about the decisions taken by the Constitutional Court in 2018 to solve various institutional bottlenecks. The purpose of the paper is to provide a radiograph of the only constitutional legal authority in Romania in order to understand how it works and why the decisions made by it have become ample subjects debated at both the media and in different circles of legal debates . From this perspective, it is intended to bring to the fore the subjects of wide-ranging discussions based on decisions of the Constitutional Court, widely debated at the level of the Romanian society as well as in the European Union. " Keywords: Constitutional Court, decision, law, institutional block, judges Introduction Due to the numerous misunderstandings on some normative acts between the Government, the Parliament and the President of Romania became the only constitutional authority in Romania, in this case the Constitutional Court, to establish the legality of the drafting of the legislation to be promulgated. In Romania, as in any state governed by the rule of law, the only authority of constitutional jurisdiction is represented by the Constitutional Court and is independent of any other public authority. It is organized and operates according to its own laws and is subject only to the Constitution of Romania. The Constitutional Court fulfills its duties according to Law 47/1992 and Art. 146 of the fundamental law. In fulfilling its function as "guarantor of the supremacy of the Constitution", the Court fulfills the attributions stated in Article 146 of the Basic Law, namely: „a) decides on the constitutionality of the laws, before the promulgation thereof, at the request of the President of Romania, of one of the presidents of the two Chambers, of the Government, of the High Court of Cassation and Justice, of the Attorney of the People, of at least 50 deputies or at least 25 senators, as well as ex officio, on initiatives to revise the Constitution; b) decides on the constitutionality of treaties or other international agreements, at the request of one of the presidents of the two Chambers, at least 50 deputies or at least 25 senators; c) to rule on the constitutionality of Parliament's Rules of Procedure at the request of one of the Presidents of the two Chambers, of a parliamentary group or of at least 50 deputies or of at least 25 senators; d) decides on exceptions of unconstitutionality with respect to laws and ordinances brought before courts of law or commercial arbitration; the exception of unconstitutionality can also be raised directly by the People's Advocate; e) resolves the legal conflicts of a constitutional nature between the public authorities at the request of the President of Romania, of one of the presidents of the two Chambers, of the prime minister or of the president of the Superior Council of Magistracy; f) to observe the procedure for the election of the President of Romania and to confirm the results of the sufrage; g) finds the existence of the circumstances justifying the interim in the exercise of the position of President of Romania and communicates the findings to Parliament and the Government; h) advises on the proposal to suspend the President of Romania; i) ensures that the procedure for organizing and conducting the referendum is respected and confirms its results; j) verify the fulfillment of the conditions for the exercise of the legislative initiative by the citizens; k) decides on appeals concerning the constitutionality of a political party; l) also fulfills other duties provided by the organic law of the Court.” (Constitution of Romania, Article 146) This public institution is made up of 9 judges appointed on a nine-year term that can not be extended or renewed. The appointment of the 9 jurors as RCC Romanian Constitutional Court judges is as follows: 3 by the Chamber of Deputies, 3 by the Senate and 3 by the President of Romania. Although they are appointed by the Chamber of Deputies, the Senate and the President of Romania, no report is made on the subordination of the Constitutional Court to the above-mentioned institutions. The President of the Constitutional Court is elected by secret ballot for a period of 3 years and from 3 to 3 years the Constitutional Court is renewed by a third of its judges. Taking into account the aspects emerging in Romanian politics, we can understand how the Constitutional Court functions due to the current social context in Romania, which is rich in examples. The institution has been notified numerous times both by the Prime Minister of Romania and by the President of Romania on a series of normative acts which have been the object of institutional blockages with a special significance in the good state of the Romanian society as well as in the good accomplishment of justice in Romania. We will analyze two distinct examples in the following chapters, which prefigures exactly the state in which the Romanian society is at this moment and if we could sum up everything in a word would be the uncertainty. The principle of the separation of powers in the state and the settlement by the CCR of the institutional blockage between the Government and the President of Romania According to art.1 par. (4) of the Romanian Constitution stipulates that "the State shall be organized according to the principle of separation and balance of powers - legislative, executive and judicial - within constitutional democracy" (Romanian Constitution, Art. 1, paragraph 4). From this it follows that the Romanian state ensures the supremacy of its Constitution, of all laws and normative acts without which this principle does not exist. In order to be able to protect this principle, the Constitutional Court has the task of solving the legal conflicts of constitutional nature that might exist between public institutions. These institutional bottlenecks that may arise between public authorities representing legislative, executive or judicial powers concern the extension or mismanagement of the attributions assigned to them under the law. The activity of the Constitutional Court is aimed at clarifying the issues with which there are doubts about their legality and the legal act has the role to solve the constitutional legal conflict with which it has been notified. The judgment ordered by the Constitutional Court obliges the institutions involved in the institutional block to comply with the stipulated provisions that they must adopt in order to be able to operate in optimal parameters as well as to prevent other situations of gender. According to its attributions, the Constitutional Court is fit to resolve legal conflicts of a constitutional nature, not political, religious conflicts, and so on. In order to understand the route of a CRC notification, we have the example of the Prime Minister of Romania in October 2018 when he wanted the reshuffle of the ministers from the Ministry of Transports and the Ministry of Regional Development and Public Administration, the proposed persons were rejected by the President of Romania and the Prime Minister has maintained his proposed people by reversing them only the ministries have reached a new refusal. The decision taken by the President of Romania falls within his powers but is also a correct decision because it is inadmissible for a person denied to serve as a minister to be again backed to serve as a minister on the sole ground that he is another ministry. On the grounds of non-observance of the provisions of art. 85 par. (2) of the Constitution of Romania and the case-law of the Constitutional Court regarding Decision no. 356/2007 and Decision no. 98/2008 regarding the President's refusal to proceed with the second proposal of the Prime Minister of Romania, the RCC was notified of the existence of a constitutional legal conflict between the Government and the President of Romania, stating that the President blocked it government activity. Over time, the Constitutional Court has also been notified of such a situation, as mentioned above. In Decision 98 of 2008 of the RAC in paragraph 2, the following statement was made: "In the exercise of the duties provided by art.85 par. (2) of the Constitution, the President of Romania may duly refuse, once, the Prime Minister's proposal to appoint a person to the vacant post of Minister. Prime Minister is obliged to propose another person. " (Decision 98 of the 2008 Constitutional Court: 5). The assumed and correct decision of the Constitutional Court, which delimitated the attributions of the President of Romania regarding the procedure of filling the vacant position of the Minister of Government, as well as the fact that the first minstrel is obliged to appoint another person. Practically in 2008 by decision no. 98 The Constitutional Court reverted to Decision no. 356 of 2007, when he stated the following: "In exercising the powers provided for in Article 85 (2) of the Constitution, the President of Romania has no right of veto but may ask the Prime Minister to give up the proposal made when he finds that the proposed person does not fulfill the legal conditions for the exercise of the function of a member of the Government "(Decision 356 of 2007 Constitutional Court: 9) It should also be mentioned the following: "The Constitution does not provide for a deadline within which the President of Romania must exercise the duty to resign and declare vacant the position, nor does Law no.90 / 2001 provide for a term in this respect .If it is considered necessary to set a deadline within which the President of Romania to perform this task, as well as a deadline within which the Prime Minister should refer the President, it is found that such a resolution is exclusively for the Parliament Romania, as the supreme representative body of the Romanian people and the only legislative authority of the country, according to art.61 of the Constitution. The Constitutional Court does not have the power to interpret, by interpretation, a possible term in these respects, or to censor the motivation acts on the date of settlement. "(Decision 356 of 2007 Constitutional Court, 7). This detail of the reasoning decision no. 356 of 2007 of the Constitutional Court has given the President the possibility that when he receives a proposal for a minister, such as the one in our case, he can not be pressured to make a decision. Although he has been harshly criticized by the Romanian Prime Minister for the weight with which he has made a decision on his proposals, the Constitutional Court has offered protection to the President to be able to make a correct and well-reasoned decision in the future when it comes to to appoint or reject a person in a position that decides the future of the Romanian society from the perspective of the ministry he is leading. In the decision no. 875 of 2018, the motives of the Constitutional Court are quite bizarre since it is the only public institution in the state that can concretely determine the scope and limits of the attributions of a public institution and to provide a legal meaning to the abiotic notions in the normative acts. Thus, through art. 24 of decision 875 created a preamble that would prefigure the final decision of the Constitutional Court. The following explanation, respectively, "The notion" reiterate "is synonymous with" repeating "and assumes an identity, and in the present case it transposes both the function and the person. The meaning of the Court's use of this notion is that the prime minister can not again propose the same person for the same ministry, ie the same ministry. Therefore, the possibility of proposing the same person for the post of minister to another ministry can not be ruled out because the identity of the function concerned is no longer maintained. 25. Therefore, while the second proposal is not identical to the former, the President's duty is clear and immediate; in the present case, to take note of resignations and to appoint the persons nominated by the Prime Minister. "(Decision 875 of 2018 Constitutional Court, 3-4) From this it is meant that in the Government of Romania each minister function is unique. We can not agree with the Constitutional Court's speech, as the Prime Minister forms a team of ministers with whom he governs the country. For this purpose in the Government only the function of prime minister is unique, the functions of minister can not be differentiated according to the ministry they lead and they are equal in importance. In the present situation, I believe that this is a personal situation as a result of the fact that the persons concerned are not in the office of minister and is not based on their pure qualities and professional training. In art. 24 of the decision we are talking about a subjectivism of the Constitutional Court which seems to solve only the present situation and not to prevent the emergence of new legal conflicts of a constitutional nature like the one mentioned. It should also be noted that in Decision no. 875 The Constitutional Court did not solve the institutional blockage in the idea that in future such situations there will be only a directive that the President of Romania should execute "Admits the request made by the Prime Minister of Romania and notes the existence of the legal conflict of a constitutional nature between the President of Romania , on the one hand, and the Government, represented by the Prime Minister, on the other hand, generated by the refusal of the President of Romania to issue decrees of revocation from the office of two ministers and / or to issue decrees for finding the vacancy of the positions of minister as following the resignations of the two ministers. 2. The President of Romania shall immediately issue the decrees for the observation of the vacancy of the two functions of the Minister; 3. The President of Romania shall respond promptly, in writing and in a motivated manner, to the proposals made by the Prime Minister of Romania regarding the appointments to the Minister. "(Decision 875 of 2018 Constitutional Court, 14) Considering the phrase in paragraph 2 "immediately to issue the decree of the vacancy of the two functions of the minister" (Decision 875 of 2018 Constitutional Court, 14), we can ask that the ministry function was regarded as an entity of the Government and not it was specifically stated that the appointment of the ministry vacancies for the ministries concerned was to be vacant. Also, the Constitutional Court has not drafted a clear decision on the conditions to be met by those who will be nominated for the ministry. We can not fail to admit that at the level of the Romanian society, through the media, it is known that the President of Romania was in an open conflict with the President of the Chamber of Deputies and the Prime Minister due to the political doctrine and the way Romania is headed . The Government, represented by the Prime Minister, decided to notify the Constitutional Court of the existence of a constitutional conflict between the Government and the President on the grounds of the institutional blockage created by the President of Romania. The presented aspect does not represent a real institutional blockage, but it is just a pressure exerted by the executive power using the RCC as a constraining tool for the President of Romania to make him nominate the people whom the Prime Minister has proposed. Statements of the Constitutional Court on the legal conflict of a constitutional nature between the Romanian Parliament and the High Court of Cassation and Justice In the context of changes to the laws of justice, criminal, civil and procedural codes of the two, a number of controversies emerged at the level of society as to how they are modified, considered as dedicating to various persons in key positions in the country's leadership. The conflict between the Parliament of Romania and the High Court of Cassation and Justice occurred amid the entry into force of the amendments to Law 304/2004 and the erroneous interpretation of the Supreme Court regarding the composition of the 5 judges. With the changes brought, the panels of 5 HCCJ High Court of Cassation and Joustice judges had to be drawn by lot, not by the time the amendments to Law 304/2004 entered into force, namely 4 judges being sampled and the fifth being a member right. However, Law 304/2004 with the modifications made does not provide for transitional provisions imposing in 2018 a new casting of lots for the five judges already constituted, because in the new provision of the law, the completions of 5 judges from the ICCJ are constituted at the beginning of each year by lot. At the time of the entry into force of the amendments to Law 304/2004 it was July 2018 and for this the ICCJ considered it inopportune to organize new draws for the 5 judges. The Romanian Prime Minister's referral to the Constitutional Court on the constitutional legal conflict between the Parliament and the High Court of Cassation and Justice was due to the lack of communication between the executive power of Romania, Parliament and the judiciary. We believe that this can not be an institutional blockade but rather a pressure on justice in Romania. Thus, the notifications made by the Prime Minister of Romania to the Constitutional Court were solved by the decision no. 685 of 2018, taking into account that although in Law no. 207/2018 which brought the amendments to Law 304/2004, there are no transitional provisions and only the obligation to draw lots of the members of five judges at the beginning of each year. CCR appreciated that Art. 32, as amended by Law 304/2004, has its own transitional value, allowing the legal relationship to be completed by the end of the year. In its decision, the Constitutional Court also took into account the ICCJ's 208 judgment of 2018, in which it considered it to be an explicit refusal of the institution to comply with the foregoing. 32 of Law 304/2004 as the ICCJ asserted: "Notes that the provisions of the new law are rules of organization for specific regulatory formations established at the beginning of each year which, in the absence of a transitional rule, are applicable as of 1 January 2019 "(Constitutional Court Decision 685 of 2018: 13). Thus, the ICCJ does not consider that it is necessary to reconstitute the panels of 5 judges as they constituted at the beginning of each year and when the amendment of art. 32, of the previously mentioned law, was the second decade of 2018, and it was no longer appropriate to restore the judgments. According to opinions formulated in the media, the panels of judges of 5 judges formed before the amendments of art. 32 are unlawfully constituted. It is inadmissible to formulate such an opinion in the conditions in which the Supreme Court is the last forum of judicial decision. It can be clearly seen that through the amendments to Law 304/2004 and on delicate articles like Art. 32 that a constraint and limitation of the power of justice in Romania is attempted. However, the Constitutional Court has specified that the High Court of Cassation and Justice "The ruling of the College of Governors only complies with the law, as it was amended and adopted by the legislature, not a refusal to apply a legal norm in within the framework of the activity of carrying out the act of justice, which would lead to an overrun of the duties provided by art.126 of the Constitution, but by the adoption of measures for the organization of the activity of the supreme court, respectively the constitution of the 5 Judge's Supplements according to the amended texts, of the temporal element indicated in the paragraph (1) of art. 32 of the Law no. 304/2004. Therefore, the manner in which the High Court of Cassation and Justice has complied with the law in adopting the judgment in question can only be subject to the review of the courts. In this regard, the Constitutional Court's decision no. 108/2014 is invoked. "(Decision 685 of 2018 Constitutional Court, 25-26). Also, one can not speak of an institutional blockade between the Parliament and the High Court of Cassation and Justice, because by applying the law, the Supreme Court did not affect the constitutional attributions of the Romanian Parliament. There is no refusal of the HCCJ to apply the provisions of Art. 32 of Law 304/2004 as amended by Law 207/2008, since the intention to enforce the provisions exists but for a period other than that stipulated in the amendments to the law. By art. 175, the Court's decision "In conclusion, the Court notes that the High Court of Cassation and Justice, through the Governing Board's Decisions No. 3/144 and No. 89/2018, amended by an administrative act a law adopted by the Parliament, which denotes opposition / counteraction of the legislative policy. It follows that, under these conditions, the High Court of Cassation and Justice has assumed jurisdiction over the judicial function of the Supreme Court, a function which is carried out through court panels, the only ones to decide on the law of composition of them. Thus, the College of Governance of the High Court of Cassation and Justice, through its administrative practice, unduly influenced the judicial practice of the Supplements of 5 judges, on the issue of their legal composition, since the 5 judges' , tacitly, to an unlawful composition, themselves violating Law no.304 / 2004, from 1 February 2014 until now. "(Constitutional Court Decision 685: 74) The Constitutional Court has shown that, until the moment of modification of art. 32 of Law 303/2004, these complete judgments were unlawfully constituted, but we can remind that until now there has been no referral on the issues raised by art. 175 of the Court's decision. It is unacceptable the transition made by art. 32 of Law 303/2004 and the manner in which the Constitutional Court decided to settle the complaint. On this issue, the Constitutional Court decided to admit the notification by the Prime Minister of Romania confirming the existence of a constitutional legal conflict between the Parliament and the HCCJ, requiring the Supreme Court to immediately draw lots of all judicial panels 5 judges. Taking into account the aspects presented in the Decision no. 658 from 2018 of the Constitutional Court we can say that there is a contradiction between the statements in the decision and the decision of the Constitutional Court showing that between the Parliament and the HCCJ there is no legal conflict of a constitutional nature but only an erroneous interpretation of art. 32 of Law 304/2004, modified by Law 207/2008 by the ICCJ. The issue of the timing of sowing in the year 2018 of the 5 HCCJ judges' panels is not a legal issue of a constitutional nature, but rather a situation of interpretation of an ambiguous text that Parliament has just elaborated on. Also in drafting the reasoning of the decision, the Constitutional Court stated that there is no institutional blockage between the Parliament and the ICCJ on the grounds of the formation of the panels. Conclusions Taking into consideration the aspects highlighted above, the importance of the Constitutional Court in the proper functioning of the public institutions of the Romanian state is indisputable. In the current social context of the numerous Constitutional Court referrals, it acted as a constraining mechanism, generating ample discussion topics through its decisions. Although this institution is independent, we can not fail to notice that the decisions of the instigation were mainly in favor of executive and legislative powers. At the same time, according to media opinion and debates in legal circles, the Constitutional Court is no longer the standard of independence but rather a means of coercion, a tool used to satisfy various interests. Regarding how to determine the five HCCJ judges who will be part of the panel, they should be elected by secret ballot so that there is no suspicion of impartiality in their decisions. Bibliography Lectures Mihai, Badescu. Catalina, Nastase. .Catalin, Andrus. (2011). Constitutional Law (Drept consitutional) , The Universe Juridic . Legislation The Constitution of Romania Decision of the Consitutional Court no. 356 of 2007 on the request for settlement of the legal conflict of a constitutional nature, between the President of Romania and the Government of Romania, made by the Prime Minister Calin Popescu Tariceanu Decision of the Constitutional Court no. 98 of 2008 on the request for settlement of the legal conflict of a constitutional nature between the President of Romania and the Government of Romania, formulated by the Prime Minister Calin Popescu Tariceanu Decision of the Consitutional Court no. 875 of 2018 on the request for settlement of the legal conflict of a constitutional nature between the President of Romania, on the one hand, and the Government of Romania, represented by the Prime Minister, on the other Decision of the Constitutional Court no. 685 of 2018 on the request for settlement of the legal conflict of a constitutional nature between the Romanian Parliament, on the one hand, and the High Court of Cassation and Justice, on the other. III. Law and Related Sciences V. Legal Practice  ACQUITTAL SOLUTION. UNAUTHORIZED REPRODUCTION OF COMPUTER PROGRAMS ON COMPUTATION SYSTEMS Calina Andreea GARDIKIOTIS PhD Lecturer at Faculty of Law – “Petre Andrei” University from Iasi, Romania, lawyer , e-mail: [email protected] Abstract By virtue of art. 396 paragraph 5 of the Criminal Procedure Code as related to art. 16 paragraph 1 letter c of the Criminal Procedure Code, the Appeal Court shall hereby acquit the defendant S.C. F. S.A. for the commitment of the crime relating to “unauthorized reproduction of computer programs on computation systems”, which is stipulated under art. 139 index 9 of Law no. 8 / 1996, as republished. The Court shall hereby deny the civil action filed by the civil parties Microsoft Corporation and Autodesk Incorporates. Convicting the defendant S.C. F. S.A. cannot be done based upon suppositions and presumptions, instead it has to be based on certain and solid proof of guilt, which is missing within the present case file. The prosecutor’s office has failed to conduct one complete and effective investigation within the meaning of collecting evidence able to prove, beyond reasonable doubt, the actual charges brought against the defendant. The Court, in the absence of any certain and material evidence regarding the installation and use of the 14 design program of “AUTOCAD” range, belonging to Autodesk Incorporated, and of one Windows 7 Ultimate program belonging to Microsoft Corporation, may not engage the criminal liability of the defendant S.C. F. S.A., and the acquittal solution issued by the court of first instance is legal and grounded. Keywords: acquittal solution, lack of solid proof of guilt, criminal liability of a legal entity, The Defendant SC F. S.A. has been sent to trial, by virtue of the indictment from 16.06.2016 drawn up by the Prosecutor’s Office attached to Barlad Court within the case file no. 3327 / P / 2012, for the crime regarding the unauthorized reproduction of computer programs on computation systems, as stipulated under art. 139 index 9 of Law no. 8 / 1996 regarding copyrights and related entitlements, consisting of the fact that during the period 2007 – 2012, within the process of accomplishing its object of activity, the said company has installed and used for profit making purposes, without holding the due legal licenses in force, 14 design programs of the “AUTOCAD” range, belonging to Autodesk Incorporated, as well as one Windows 7 Ultimate programming belonging to Microsoft Corporation. The court of first instance has ruled in favor of the acquittal of the defendant for the aforementioned crime (which is currently regulated under art. 195 of Law no. 8 / 1996, as republished in 2018, with the renumbering of the relevant articles), finding that the incidence belongs to the dispositions of art. 16 paragraph 1 letter c of the Criminal Procedure Code – there is no evidence that a person has committed the crime. Having reviewed the entire evidence duly procured within the case file, the Appeal Court finds that the court of first instance has issued one legal and grounded solution, both in terms of the criminal law and the civil law as well. The Court shows that, although the theoretical arguments brought by the prosecutor’s office in terms of the grounds for the appeal regarding the circumstances under which one may engage the criminal accountability of a legal entity, are fair and correct in principle, yet in the present case file, the same cannot fully apply given the specificity of the criminal charge brought against the legal entity – defendant (a crime on intellectual property), on the one hand, and the gaps of the criminal investigation conducted by the prosecutor’s office, on the other hand. Thus, the primary obligation in terms of a legal entity within the process of running its business activity, shall be the obligation of the criminal prosecution body to conduct one full and complete investigation subject to the charges it files. Whereas, within the case file subject to trial, the defendant S.C. F. S.A. is charged for having installed, without holding the due legal licenses in force, 14 design programs of the “AUTOCAD” range, belonging to Autodesk Incorporated, as well as one Windows 7 Ultimate program belonging to Microsoft Corporation, which it has also used for the purpose of accomplishing its object of activity (installing industrial machines and equipment) In terms of the installing activity, without holding the legal licenses, for the 15 programs, the Court finds that the prosecutor’s office has failed to identify the persons having installed such programs on the computers belonging to the defendant S.C. F. S.A. Barlad or the persons based on whose orders and instructions the same have been installed by one or several such individuals, even if unidentified. In the absence of identifying any such individuals, the prosecutor’s office has also failed to explain if and / or how exactly, following the installation of such programs, the defendant legal entity, by its due representatives, has agreed upon the activity relating to the installation of such programs without holding a due license to that end. It is true that the engaging of the criminal liability of a legal entity is not conditional upon the engaging of the criminal accountability, prior to, concomitant with or subsequent to the one of the natural person who is directly guilty of having committed the material deed, under the stipulations of art. 19 index 1 of the Criminal Code from 1969 (art. 135 paragraph 1 of the new Criminal Code), namely within the process of accomplishing the legal entity’s object of activity, or to the latter’s best interests or on its due behalf. However, in order to engage the criminal liability of a legal entity it shall be necessary that in-between the natural person’s activity and the legal entity’s will, by the latter’s due representatives, there is one certain connection. Establishing such certain connection has to be made on evidence basis. Just as also found by the court of first instance, the Appeal Court finds that within the present case file there is no evidence bringing proof as to the fact that it has been the result of the legal entity’s order or that the latter has agreed upon one or several natural persons having or not a legal connection with the defendant legal entity, the latter has initiated the installation of 15 programs that the defendant held no legal licenses for on the 18 computers having been checked upon conducting the IT investigation. In the absence of any evidence providing the court with an opportunity to check if the license – free installation of the programs (which is a certain fact having been proven in the case file), has been carried out with the due will or permission of the defendant legal entity, it shall not be possible to engage the criminal liability of the legal entity since one has failed to cumulatively meet the conditions for the latter’s criminal liability. Given the lack of evidence, one may establish the connection between the individuals having materially installed these programs, who have not yet been identified, and the will of the legal entity subject to the activity of such unidentified individuals, so that one can assess if such activity aimed at accomplishing the legal entity’s object of activity or it has been actually done to the latter’s best interest or on its due behalf. The same goes also in terms of the activity relating to the use of license – free programs within the process of accomplishing the defendant legal entity’s object of activity. The court considers that the prosecutor’s office has failed to submit any evidence regarding the material use by the defendant S.C. F. S.A. of the 15 license – free programs within the process of accomplishing its object of activity. There is no material result deriving out of the case file as to which particular projects belonging to S.C. F. S.A. have been accomplished based upon such programs, one mentions no such project whatsoever, the file includes no writs containing any such projects. Consequently, the Appeal Court shall hereby find that the prosecutor’s office has only presumed that the defendant has used such programs, as held without a license, within the process of accomplishing its object of activity by the mere fact of the same being installed on its computers. Whereas, the material element of the crime stipulated under art. 139 index 9 of Law no. 8/1996, in its alternative method of an unauthorized use of the programs, means the conducting of material actions of such use. Convicting the defendant S.C. F. S.A. cannot be done based upon suppositions and presumptions, instead it has to be based on certain and solid proof of guilt, which is missing within the present case file. The court also finds that within the process of running the criminal investigation, the legal representative of the legal entity S.C. F. S.A., who during the reference period 2007 – 2012 has held the position of a deputy manager, namely general manager, has failed to be questioned and heard in order to be asked for material explanations as to the charges brought against the legal entity. The latter has been heard for the first time by the court of first instance on 23.05.2017, 10 years back from the presumed onset of the criminal activity. On such hearing, the witness H. T. has submitted the Decision no. 31/06.01.2009 to the case file, which decision he has issued in his capacity of general manager of S.C. F. S.A., by which he warned the company’s employees on the fact that they did not have the agreement on the part of the plant’s management to use IT programs that have no due license. Within the grounds for the appeal, the prosecutor’s office has claimed that the relevance of this address has been misinterpreted by the court of first instance, being taken as such, without being reviewed in relation with all the evidence procured within the case file. The prosecutor’s office has also claimed that the issuance of one such internal disposition by which the employees were forbidden to use hacked programs without a due license in force stands for no proof as to the due diligence and efforts that the defendant company was under the obligation to make, since basically, on the one hand, it stands for an indication of the fact that one had knowledge of the said license – free programs being installed and used without a due license to that end, and on the other hand, because one such decision, containing warnings and notifications, does nothing else but “transferring” the guilt and accountability to the company’s employees. The court is unable to find such defense whereas the strictly procedural framework that the court has been invested with in terms of the deed imputed to the defendant S.C. F. S.A. Decision no. 31 / 06.01.2009, as issued by the witness H. T. in his capacity of general manager of S.C. F. S.A., fails to have the value of a certain piece of evidence subject to the criminal charge within the present case file, instead it only provides a hint within the meaning that the company’s general manager issued a disposition, having more or less legal value and consistency, in terms of the issue relating to the use within the company’s business activity of those IT programs that the company appears not to hold valid license for. Not even the indictment procured within the trial stage of the appeal has been able to remove the presumption of innocence of the defendant S.C. F. S.A. More witnesses have been heard during the appeal, but not no such witness has been able to supply any details, material elements of fact regarding the criminal charge brought against the defendant S.C. F. S.A. The witnesses having been heard have told the same things they have also told before the court of first instance. None of the witnesses having been heard have supplied any details on the individuals who might have installed the license – free programs considered within the present case file, or who would have issued the relevant instructions to this end, or who would have agreed, following their installation, upon the same being used for the purposes of accomplishing the company’s object of activity, so that one can establish a certain connection in-between these individuals and the accused company. These witnesses have also failed to provide any information on any material projects that the defendant company would have accomplished by using the license – free programs, so that one can bring proof to the action of using the same within the process of accomplishing the legal entity – defendant’s object of activity. The prosecutor’s office has failed to conduct one complete and effective investigation within the meaning of collecting evidence able to prove, beyond reasonable doubt, the actual charges brought against the defendant. Thus, the Court shall hereby draw the conclusion that, in the absence of any certain and material evidence regarding the installation and use of the 14 design program of “AUTOCAD” range, belonging to Autodesk Incorporated, and of one Windows 7 Ultimate program belonging to Microsoft Corporation, one may not engage the criminal liability of the defendant S.C. F. S.A., and the acquittal solution issued by the court of first instance is legal and grounded. In terms of the solution relating to the defendant’s being acquitted, the court has accurately and duly denied the civil action of the civil parties Microsoft Corporation and Autodesk Incorporated. References: The Decision no.804/16.11.2018 of the Court of Appeal from Iasi, Case file No. 4025 / 189 / 2016 , unpublished decision V. Book Reviews and Editorial Signals  CATHERIN E HOREL, ADMIRAL HORTHY - THE REGENT OF HUNGARY, Humanitas Publishing House, Bucharest, 2019, 417 pages Cristian SANDACHE PhD Associate Prof. “Dunărea de Jos” University of Galaţi, Faculty of History, Philosophy and Theology. Abstract The author is a historian and research director at the French National Centre for Scientific Research, a specialist in the history of Central Europe, a professor. The volume of the French Catherine Horel represents a valuable contribution, not only on the biography of an important personage of Hungarian history, but also on the history of interwar Hungary. Key words: history of Hungary, Miklos Horthy, Regent Horthy, French Catherine Horel. In the pantheon of significant figures in the history of Hungary, Miklos Horthy comes as an illustration of the old time conservatism, the image of the controversial state man, but whom embodied (at one point) the personalization of national irredentism. Horthy's entire educational-intellectual formation was reminiscent of the late Habsburg Empire, and (as he himself confessed) his formative model was Emperor Franz Joseph, the almost legendary sovereign, to whom he was a loyal supporter. Horthy was a man of worldliness and good manners, an excellent husband and father, a Protestant with noble country roots, fluent in several languages, and passionate about sports and travel, like a modern adventurer. Military and noble, chivalric and leader, had the grace of interesting conversation and possessed a natural religiousness, not at all rigid. The former admiral retained this grade, precisely because the nostalgic people of the Kingdom of Greater Hungary could not give up the idea that their homeland had lost any access to the sea, as long as Croatia (even with its increased autonomy status) was no longer between the borders of the Crown of St. Stephen. So - we are dealing with a more subtle interpretation, with a kind of living symbol of a geopolitical situation, to which the Hungarian nationalists continued to aspire. The volume of the French Catherine Horel represents a valuable contribution, not only on the biography of an important personage of Hungarian history, but also on the history of interwar Hungary. The author is a historian and research director at the French National Centre for Scientific Research, a specialist in the history of Central Europe, a professor. The restoration of the borders before Trianon will be the target of all the regimes and all the governments carried out in Budapest, even though this goal had not always been officially declared. But more than that, the sadness of the territories lost in 1920 would protrude as an acid in the deepest layers of the Hungarian collective mentality, turning into a major collective frustration. The interwar Hungarian foreign policy was conceived having as an essential reference, the obsession with the territories lost to Trianon, and the government of the "fleet less" admiral Miklos Horthy, was circumscribed exactly to the same structural-national aspiration. The fact that in the period 1938-1941, Horthy’s Hungary recovered about 40% of the lost territories in Trianon, placed Horthy in full myth, his last nickname of "land collector", being, in this sense - perfectly explainable. Horthy could declare himself relatively contended, as long as part of the great Hungarian revisionist plan was beginning to materialize, the alliance with Nazi Germany and Mussolinian Italy representing the only chance for Hungary to recover (or even partially) the territories lost to Trianon, in 1920. It was obvious that by its own forces, the country could never even hope for such a revival, because (if we consider at least a comparison in military terms with Romania) it was inferior to it, both in terms of human potential, as well as in terms of economic capabilities, without which the success of a military action remains strictly limited to the utopian sphere. The regime of Regent Horthy had been one of the first which introduced anti-Semitic laws in Europe after the First World War, which caused a natural shock among the ethnic Jewish in Hungary, knowing that for the most part, they had not only integrated very well into the Hungarian society, but among their ranks there were factors influencing the public opinion, totally dedicated to the Hungarian national idea. And yet, part of the current Hungarian historiography considers that the anti-Semitic policy of Miklos Horthy was rather a tactical-formal one, in order to offer (first of all to Germany) the arguments of an ideological affinity with a pragmatic purpose. On the other hand, the representatives of the same historiographic school try to diminish Horthy's responsibilities regarding the horrors committed in Hungary against the Jews, considering that these were mainly due to the representatives of the Party of the Crosses With Arrows - the Hungarian variant of fascism. Let us think, however, that after leaving Hungary (and by the end of his life, Horthy was financially supported by some Jewish businessmen as well ... Paradoxes of history and of his destiny .. . In many ways, the Regent was an exponent of the dualist period and therefore he may seem somewhat anachronistic in terms of mentality, to many young radicals, eager to transform Hungary, into a great power, starting from the recovery of the territories it had lost in Trianon. He was an undeniable patriot, but his pace of action and sensibilities remained forever typical of the nineteenth century. He was a prudent legalist, a follower of lavish formalism, and an analytical decision-maker, and many of the excesses of his governing were either due to periods in which he seemed either distracted from the flow of events, or overtaken by them, or to the excessive zeal of his collaborators. The odyssey of Miklos Horthy's exile was long and complicated, with his taking over by the units of the German army, with periods of internment in Germany, and then with the fear of not being extradited to either the Hungarian or Yugoslav Communist authorities, the latter insisting that the former Hungarian Regent be handed over to them, holding him directly responsible for the aggressions of the Hungarian armies on their country. The paradox in Miklos Horthy's fate lies in the fact that he has benefited from the discreet support of influential people (including the former US ambassador to Budapest at the time), or of Jewish businessmen, who did not cease to support him effectively even from a financial point of view. It can be said that until his death (occurring in 1957) Horthy kept his pay thanks to the help of these influential people. Salazar agreed to offer him political asylum, and the old fleet less admiral could (at least) escape from prison, or, perhaps, from the capital punishment. In those years he wrote his (published) memoirs, in which he portrayed himself as a loyal admirer of Emperor Franz Joseph and generally of the Austro-Hungarian Empire, one of the most glorious periods (in his opinion) in the modern history of Hungary. His biography is drawn on the general background of historical events, without which the Hungarian destiny cannot be decrypted, and the manner of writing is an attractive one, the admiral showing clarity and logic of expression. His "memories" can also be considered as an evocation of a world that had been lost forever, a world of vast refined lounges, of sumptuous balls, of rigorous etiquette and behavioural customs, rigid and impressive, with a medieval colour full of romance. A world that remained only in his memories of exiled, and in the hearts of those who were now forced to face the new realities of Hungary. Benefiting from an extensive archival and bibliographic documentation (to which an extremely attractive writing style is added) the author of this biography-fresco, finally manages to present us the complex portrait of a character, whom the current Hungarian political regime is trying to recover in a nationalist-propagandistic sense, often unjustified. Catherine Horel draws attention to the fact that the Hungarians themselves should learn to rethink Horthy, excluding any cliché. In any case, for the Transylvanian Romanians (in particular) the image of Horthy can only be received in predominantly negative tones, an absolutely justified perception, both from a historical and psychological point of view. 9 10 1