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The new Civil Code brings back into the Romanian legal landscape a very rare and apparently obsolete institution – the engagement. This article analyses the evolution of engagement, its substantial and formal conditions, the content of this sui generis act and also the sensible issues concerning the judicial effects of the engagement, especially as regards its cessation. Also, elements of comparative law are depicted, highlighting the correlation between the consequences of breeching the engagement and the fault of parties in other law systems.
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Based on legal personality, EU won through Treaty of Lisbon, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The representatives of the governments of the Member States may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.
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This paper has taken into account the legal practice generated by the two texts excerpted from Law no. 554/2004, respectively articles 14 and 15. The need of such an endeavour is justified by a heterogeneous practice, which has created confusion amongst justiciable people. The suspension of administrative acts represents an institution in itself, and in this situation, we deal with the cancellations ruled by the courts when certain cumulative conditions are not complied with. This is precisely why we need both a theoretical and a practical analysis of the institution of administrative suspension by an administrative court, in the context of the two texts of the law mentioned above.
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By studying the legal practice in the field of criminal provisions application regarding the prevention of and fight against illegal trafficking and consumption of drugs, the authors observe that in art. 4 of Law 143/2000 regarding the illegal drug holding for personal use, the interpretation made by the legal organs is not unilateral, two points of view taking shape. Thus, it is considered, from one point of view, that the infringement stipulated by art.4 of Law no. 143/20001regarding the illegal holding does not subsist when a person who acknowledges that he/she is a drug consumer is caught by the police when he/she wishes to buy drugs for personal use, and prohibited substances subject to national control are not found on him/her. According to the other point of view, it is considered that this infringement subsists even when a drug consumer admits having consumed such substances subject to the national control, even if such substances where not found by the police on him/her or at the personal residence. The authors analyze the two points of view and give a series of solid arguments showing that the interpretations based on which it is considered that the lack of existence of the material object of the infringement regarding the illegal holding, the act does not meet the constitutive elements of the infringement stipulated by art. 4 of Law 143/2000 is correct and legal.
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Depriving a person of his/her freedom for trial purposes for a longer period of time represents an issue that, in all legislations, is considered very carefully, the provisions issued reflecting to a large extent the position of the law regarding the real and effective guarantee of the individual freedom. The absolute character of the initial duration of 30 days for the preventive arrest can only be cancelled by the use of a procedure, which is recognised by the Consittution, to continue depriving a person of his/her freedom. Considering that the constituent lawmaker regulates differently the duration of the preventive arrest for the two phases of the criminal trial, the same dual modality of regulation also applies in the case of the juridical tools based on which one maintains the temporary deprivation of freedom.Through this article, I propose an analysis of the juridical tools used, during the trial, in order to extend the provisional detention. This implies both the approach of the trial moments of maintaining the preventive arrest and the analysis of how the national legislation complies with the guarantees established at European level in order to avoid the arbitrary in terms of deprivation of freedom.
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In the present study I outlined a number of situations that, in our opinion, should be reconsidered in order to avoid all ambiguities concerning the interpretation and application of certain norms, as well as in order to come in accordance with fundamental human rights and liberties. The areas of discussion presented in the following pages cover problems identified throughout the entire Code of Criminal Procedure, rather than limiting themselves to a single criminal procedure institution.
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In this paper we propose to analyze the felony known as infanticide. We start by presenting the importance of the right to live and the international treaties which ensure its protection, then we determine which are the initial and the final moments of life and present a brief history and the legal definition of infanticide in Romania. We continue by presenting the judicial and the material object of the felony, as well as the active and passive subjects. It can be committed only by the infant’s mother and only against her own newborn baby. If other people participate in the crime they will be held responsible for murder. We then analyze the material element and the result, as well as the causality link between them. It is necessary to establish that the mother’s actions or inactions led to the death of the infant; if death does not occur or it is determined by other events, the mother is not liable. We continue with the analysis of the subjective aspect of infanticide, which can consist of direct or indirect intent. The mother is in a state of mental disturbance caused by the birth process, and therefore her judgment is impaired. Then we present aspects regarding the felony’s attempt, sanction, as well as procedural matters, and conclude by analyzing the changes to infanticide brought by the new Criminal Code.
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The judiciary individualization is the logical and legal operation done by a court of law of establishing punishments by taking into consideration certain elements provisioned by the law, such as the degree of social danger of the crime and of the perpetrator, in order to apply punishments and dispose their execution, thus enacting the penal policy of the Romanian State of preventing and combating criminality. Within this definition we can distinguish three operations that the court undergoes in the process of judiciary individualization: establishing punishments, applying them and disposing their execution. Under the current Criminal Code there are only two distinguishable phases of individualization: the judiciary individualization of punishments (in a narrow sense), through which the court establishes punishments by taking into consideration the criteria provisioned by the law, as well as mitigating or aggravating circumstances, if applicable, and the judiciary individualization of the execution of punishments, though which the court determines the manner in which the execution of the established punishments is to happen. The New Criminal Code innovates in this matter through the regulation of the institution of delaying the application of punishments and the institution of renouncing the application of punishments. Through delaying the application of a punishment, the court actually delays the conviction, thus setting a term of surveillance during which the offender is to fulfill certain obligations and respect certain surveillance measures. Furthermore, if the crime is of a reduced seriousness and the other conditions provisioned by the law are fulfilled, the court can renounce applying a punishment to the offender, thus applying only a warning. Considering that the legal nature of the suspension under surveillance remains that of a means of judiciary individualization of the execution of punishments, the legal nature of delaying and renouncing the application of a punishment is that of a means of judiciary individualization of the application of punishments. The abovementioned legal nature is reflected in the process of judiciary individualization of punishments, and as a consequence, under the new regulation, we will distinguish three phases of individualization: the judiciary individualization of the establishment of punishments, the judiciary individualization of the application of punishments as well as the judiciary individualization of the execution of punishments. It is observable that in this manner each of the three operations is incident only within a single phase of individualization.
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This study presents briefly the legal provisions concerning the procedure named “judgment in case of admitting guilt”. The main idea is that the Romanian legislator gives little support to a new vision about negotiated justice. Although the analyzed institution involves many problems of interpretation and especially of enforcement, in this study we will focus on two of them. Firstly, we considered essential to understand the fundamentals behind a procedure transposed from the common-law (A). Then we tried to highlight by a recent judicial decision the dangerous consequences of misunderstanding the concept of plea of guilt (B). Finally, it should be outlined several guidelines in the context of criminal and criminal procedural reforms to be made (C).
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The current article tackles a delicate issue that is usually kept aloof from criminal doctrine and jurisprudence, namely the possibility of a legal entity to commit murder. The essay starts by exploring some historical aspects regarding the point in question, alongside presenting a series of cases that the author considers to be actual murders committed by different legal entities. The first part of the article deals with corporate criminal liability as a whole. The writer attempts to dismantle the “societas delinquere non potest” principle in order to prove that it is, in fact, obsolete. Throughout this stage, the paper treats every possible aspect of corporate criminal liability, alongside pointing out which types of legal entities can be held criminally liable, what sort of crimes they can commit and which terms and conditions need to be satisfied in order for genuine corporate criminal liability to occur. Both during and subsequent to this examination, the writer doesn’t miss the opportunity to provide a short glimpse of some analogous European legal provisions, doctrinal views and case-law regarding the matter at hand. The author also examines the current trends in corporate criminal liability, by providing empirical evidence on the types of companies convicted, and the magnitude and nature of the imposed sanctions. In addition to this, the writer is aptly devoted to proposing a series of compulsory changes that would remodel and consequently optimize corporate criminal liability in Romania. The second part of the article deals with the general concept of murder. At first, the author analyses different theories regarding the moment of transition from foetus to person, in order to determine at which point in human evolution, a specific action or omission can be considered a homicide. At this stage, the pros, cons and possible interpretation quandaries are exposed. Next in line for analysis is the moment in which life leaves the human body, thus no longer being protected by criminal law. The writer points out the fact that, whether it is separating siamese twins, malpraxis cases or even euthanasia, every now and then, health institutions can and should be held liable for murder. Moving on, the author starts dissecting the concept of homicide, by indicating it’s components. During this phase, dismantling other authors’ thought-to-be outdated opinions on the matter becomes the writer’s main concern. The paper then moves on to delving into the emblematic postures in which legal entities usually find themselves when committing murder. After scrutinizing all the basic issues, the article sets forth a series of solutions to questionable matters regarding the possibility of a legal entity to commit murder.
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The adoption and the opening for signature, on the 10th of December 2008, by the United Nation, of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights constitutes, in our opinion, a strong step ahead in the field of economic, social and cultural rights protection. It continues the road paved in the last decade by the UNESCO Universal Declaration on Cultural Diversity (2001) and UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005). We will point out the main provisions of this Protocol and we will conclude in the sense that this instrument, the others before it and the General Comments of the Committee for Economic, Social and Cultural Rights (namely General Comment no. 20 and General Comment no. 21 of 2009), are meant to sustain this desired evolution in the field of cultural rights.
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The rules of family law which form the legal background for a valid marriage, differ significantly, and are partly deeply rooted in society and culture. In the herein paper we shall dwell upon the rules concerning the conditions for marriage of the two legal systems (Greek and Romanian). In what follows, we analyze the differences between the two laws comparing different legislative solutions.
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The functioning of the state governed by the rule of law cannot be conceived unless an adequate legislative frame, an impeccable organization of the public order forces that can ensure, maintain and restore public order. The resolution of the Council of Europe Parliamentary Assembly No.690/1997 established the right of each state to create public order forces that can preserve the state of equilibrium and harmony. In Romania, public order is ensured by the components of the national system of public order. The national system of public order comprises the legislation, the authorities and bodies of the public central and local administration, the institutions as well as other forces that act to grant the fundamental rights and freedoms of the citizens, the protection of the property and the normal functioning of the state.
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The principal of individualisation of penalty must govern both the activity of determining the sanctions and the activity of enforcing the law by the courts of justice, as well as the entire activity linked to the execution of sentences. In relation to these three stages, we can talk about the three types of individualisation of penalty: legal, judiciary and postcondamnatorie. The latter type enters into scene after a final conviction. Despite the fact that, traditionally it is known as administrative individualisation1 in order to outline the fact that it happens at the place of detention and on the grounds of the decisions made by the commissions on the execution of sentences, we believe that the notion of postcondamnatorie individualisation is more appropriate, because, firstly, there are several situations in which a new individualisation after a final sentence may occur, besides the administrative individualisation of the manner of execution of the imprisonment penalty, and even within the procedure of administrative individualisation of the execution of penalties, the decisions of the commission of the individualisation of the execution regime of imprisonment sentences are subject to the control of the delegated judge and the decision of the latter may be censored by the court of instance. Given the alteration brought during time to the criminal legislation, a problem of permanent interest linked to the postcondamnatorie individualisation of penalties is represented by the enforcement of the more favourable criminal law when a new law was issued, after a final conviction, if it states a penalty which is less severe for the crime for which the sentence was ruled.
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There are times when private, individual or group interests tend to take priority over the general public interest or the legitimate interest of a person, causing a subjective, biased or unfair behavior from the person invested with certain official or professional duties. As human nature is always fallible, this trend is often materialized in decisions or measures that are meant to ensure the promotion of private interests in achieving the specific purpose of obtaining financial benefits, material benefits or benefits of some other nature. Such a situation gives the outline of the concepts of „conflict of interests”, „corruption” and „fraud” whose presence in almost all areas requires not only the control intervention and sanctions, but also the improvement of the legislation in order to streamline the identification operations and to prevent their commission. This rationale requires prior clarification of the three concepts whose multiple understandings may cause difficulties in identification and assessment strategy for corruption and fraud risks caused by conflicts of interest.
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Le dol représente ce type de vice de consentement qui consiste dans la tromperie d’une personne, par des méthodes trompeuses ou dolosives, afin de la déterminer de conclure un certain acte juridique. Le dol est une erreur provoquée, non plus spontanée comme c’est l’erreur proprement-dite, étant la réalisation de l’autre partie faite par des méthodes malhonnêtes. À la différence de l’erreur proprement-dite qui constitue un vice de consentement seulement alors quand celui-ci affecte la substance ou la personne, l’erreur povoquée par le dol suppose, en général, l’annulation de l’acte juridique, n’importe pas quel en est son objet, si celle-ci a été déterminante au moment du consentement. La structure du dol est composée par deux éléments, qui doivent être réunis d’une manière cumulative: a) un élément objectif, matériel, qui consiste dans l’utilisation des méthodes malhonnêtes par l’intermède desquelles la personne est trompée; b) un élément subjectif, intentionnel, qui consiste dans l’intention de tromper une personne, pour la déterminer à conclure un acte juridique civil. Pour pouvoir annuler l’acte, le dol doit accomplir, d’une manière cumulative, les conditions suivantes: a) être déterminant pour la conclusion de l’acte juridique civil, c’est-à-dire la partie ne l’aurait pas contracté autrement; b) provenir de l’autre partie ou plus exactement provenir de l’une des parties contractantes. La sanctionne qui intervient dans le cas du dol principal est la nullité relative de l’acte juridique, l’action en annulation pouvant être promue seulement par la victime des manipulations dolosives. S’agissant d’une nullité relative, la victime du dol peut confirmer l’acte frappé par une telle nullité, soit exprès, soit tacit. Parce que le dol a une nature juridique double dans le sens qu’il constitue tant un vice de consentement, tant un fait illicit de l’auteur des manipulations dolosives, cela peut constituer un motif tant pour l’annulation de l’acte juridique, tant pour une action de compensation.
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Insofar as the under age child lacks physical and mental maturity it is necessary that his individual and his/her legacy be protected by a mature and capable individual to make mature and reasonable decisions with the aim of a harmonious development of his personality and ensuring his material welfare. As a consequence, the adults in whose care the child is as a legal provision, have the task to ensure his protection and full accomplishing of his personal and material interests which the law bestow on him. With the view to accomplish this task, the adult person has certain duties and rights which together constitute the contents of parental care. Naturally speaking the function of protection of the underage child has to be performed by the proximity of the blood relationship and real affectivity relationship that exists among the parents and child. Within the Romanian Law this rule flows from Article 5, second paragraph of the Law 272/ 2004 concerning the protection and promotion of the rights of the child that establishes that the responsibility for the child bringing up and ensuring his developing is held first and foremost by the parents. The same are provided by the dispositions of the article 6 of the same law. In certain situations the child may be separated by one or both of his parents. As a principle the separation of the child from his parents does not have as a consequence the pay off of all the duties or losing the parental rights. Thus the parent is entitled by the law to have personal relationships with the child, to oversee his bringing up, education and the professional training (Article 43 paragraph 3 Fam. C). On the other hand, under the direct incidence of the Convention regarding the respect to the child’s rights whose dispositions were taken on in the internal law, the Romanian law gives by means of Article 16 of Law 272/2004 the child the right to maintain personal relationships and direcs connections with both parents in the case he was separated by one or both of the parents by a provision of the law, except those situations when they are contrary to the child’s interest.
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L’essor de la copropriété des immeubles batis résulte de la conjonction de facteurs divers: industrialisation et urbanisation, les techniques modernes de construction, expansion démographique et accroissement du prix des terrains, la crise du logement... Une telle copropriété se singularise par une combinaison originale de propriétés individuelles et d’un indivision forcée. Chaque propriétaire est titulair d’un droit de propriété exclusive sur son appartement et copropiétaire indivis des partis communes de l’immeuble (sol, escaliers, toiture, murs porteurs etc.). Etre copropriétaire dans un immeuble par appartements n’a seullement cette signification, mais aussi d’être membre d’une personne morale et, en particulier, de son assemblée, débiteur des charges occasionées par la conservation de l’immeuble et par l’administration des parties communes. C’est pourquoi dans cette étude nous avons essayer d’analiser tous ces problèmes.
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