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(IM)POSSIBILITY TO RECOVER THE DAMAGE CAUSED BY EMBEZZLEMENT AFTER THE CONVICTION TO A SUPERVISED SUSPENDED SENTENCE

Author(s): Sandra Grădinaru / Language(s): English Issue: 2/2019

The present paper intends to analyze the real and effective possibility of a civil party in a criminal trial torecover the damage created by the convicted person, under the conditions in which the criminal court orders the sentence to imprisonment but chooses as the option of executing the sentence, a supervised suspension. The basic idea of the present study starts from the possibility of the civil party to request the revocation of the suspension under supervision of the sentence applied to the convicted person, given that it has no other methods to recover his damage by other means of coercion. Present study aims to analyze the jurisprudential optics of the Romanian courts, notified with the solution of such a request, the argumentation being concentrated around the criteria in relation to which the conduct of the convicted person is analyzed during the probation period. The institution of the revocation of the suspended sentence under supervision established by the Romanian legislator is not adapted to the socio-economic conditions in Romania, in the sense that the provisions of the positive law do not establish the criteria in relation to which the criminal court can settle such a request. The academic and practical interest of the present approach is mainly given by the comparative presentation of the solutions pronounced in this field, starting from a specific case analyzed critically. The scope of addressability of the work is relatively extended, being useful not only to the legal practitioners: lawyers, executors, probation counselors, prosecutors, judges, etc., but also to the civil parties - naturalor legal persons (public institutions or commercial companies), being in the impossibility of recovering the damage definitively found by a criminal decision convicting the defendant who committed mainly an economic offense, or subsidiary any offense against the patrimony.

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(Nie)przekładalność języków. Analiza korpusowa opinii sądowo-psychiatrycznych

Author(s): Agnieszka Karlińska / Language(s): Polish Issue: 4/2020

The paper presents challenges faced by psychiatrists who venture into the justice system. Based on the analysis of sixty-five forensic psychiatric reports, strategies assumed by expert witnesses in order to reconcile the language of medicine with the language of law were reconstructed. Methods and tools of corpus linguistics were used, such as: frequency lists, keyword analysis, and concordance analysis. The results indicate that forensic psychiatrists have difficulty in translating the language of medicine into the language of law. They use lexis and linguistic structures characteristic of medical genres, while appropriating legal vocabulary in the form of phrases drawn from the criminal code. The tensions resulting from the collision of the legal and the psychiatric discourse have been described in terms of the clash of two types of logic: “either/or”, typical of the justice system, and “both/and”, prevalent in contemporary clinical psychiatry. This analysis has also captured ethical challenges which stem from the double role of forensic psychiatrists as doctors and as representatives of the criminal justice system. It has shown that psychiatrists focused on playing the latter role, situating themselves on the side of the law.

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(NON)RELIGIOUS FREEDOM: A CRITICAL PERSPECTIVE ON THE CONTEMPORARY UNDERSTANDING OF FREEDOM OF CONSCIENCE AND RELIGION

Author(s): Rafał Prostak / Language(s): English Issue: 71/2021

Nowadays, liberty of conscience as an inalienable right is a standard of demoliberal constitutionalism. It is an obvious component of a well-organized society and state. However, at the very beginning of its presence in the political discourse, it was more a product of Christian theology (the free conscience perceived as a gift of God) than a legal category; more an endowment of divinity than an intrinsic human value. In the contemporary, secularized world, our understanding of freedom of religion includes not only free exercise of religion but also freedom from religion. An increasing number of non-believers changes our expectations of the state that is obliged to protect the freedom of conscience of all citizens regardless of their beliefs. The goal of the article is to consider the difficulties faced by people with a theistic worldview in the reality of a state founded on the principle of ideological neutrality.

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30 години конституционно правосъдие : За решенията на Конституционния съд, правовата държава и правосъзнанието

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30 години конституционно правосъдие : За решенията на Конституционния съд, правовата държава и правосъзнанието

Author(s): Krasimir Vlahov / Language(s): Bulgarian Issue: 7/2021

The article focuses on the significance of the practice of the Constitutional Court of the Republic of Bulgaria and its respect by the public authorities. Two examples of non-compliance with interpretative decisions of the Constitutional Court are looked into, the first of which concerns the mandate of the Supreme State bodies established in the Constitution. The second is related to the Courts’ “monopoly", laid down in the Constitution, regarding the judicial function and its attribution to the regulation of the disciplinary liability of lawyers in the Bulgarian Bar Act - in particular, the possibility of exercising judicial control over the decisions of the Supreme Disciplinary Court. The need to respect the case law of the Constitutional Court is furthermore discussed. In this regard, attention is also given to the useful tool in the management of the courts, which is the so-called "Judicial self-government” and its establishment in law while ignoring a previous decision of the Constitutional Court.

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A Concise History of United States Resale Price Maintenance Arrangements and its Current Status under State and Federal Laws

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A Concise History of United States Resale Price Maintenance Arrangements and its Current Status under State and Federal Laws

Author(s): Anthony J. GRECO / Language(s): English Issue: 47/2020

Resale price maintenance (RPM), a form of vertical price fixing is the practice whereby manufacturers of brand-name or trademark goods stipulate and attempt to enforce minimum, maximum, or actual wholesale and retail prices of such goods as they progress through the distribution chain to the final consumers of said products.

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A Critical Legal Perspective on the Recent Czech Transgender Case

Author(s): Nikolas Sabján / Language(s): English Issue: 1/2022

The purpose of this short commentary is to present a critical legal analysis of the recent Czech Constitutional Court’s judgment on trans rights. The paper puts forward an external legal perspective characteristic for critical jurisprudence and it aims to show the presence of antagonistic interests and the extra-legal (ideological) factors that permeates and influences the judicial decision-making. It outlines some of the theoretical assumptions of critical jurisprudence which are, subsequently, applied to the Court’s judgment. More specifically, it follows the theoretical project of agonistic jurisprudence and attempts to show how it could be utilised in the context of judicial decision-making.

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A Gloss to the Decision of the Supreme Court of 16 October 2014, File Ref. No. III Csk 301/13

Author(s): Grzegorz Wolak / Language(s): English Issue: 2EV/2018

The gloss addresses the decision of 16 October 2014, III CSK 301/13, in which the Supreme Court adopted the position that a member of the governing body of a legal entity may, in principle, be a witness to making a testament in which a benefit is provided for that legal person. Similarly, in the Supreme Court’s opinion, a witness to the making of a will may, in principle, be a member of a corporate legal person for which a benefit is provided in that will. The author offers a critical assessment of that position. He considers as appropriate the view according to which a last will in which a benefit is envisaged for a legal person cannot, in principle, be witnessed by either an officer of such a legal entity, or by any member (shareholder) of a corporate legal person.

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A Kolozsvár-tábla ügye

Author(s): Sándor Attila Szőcs / Language(s): Hungarian Issue: 3/2020

The present case study points to the arguments of those lawsuits that lasted for years, which resulted multilingual town nameplates on the city limits of Cluj-Napoca, after decades of omissions. In addition to describing the related rules of both domestic and international law, the study not only explores the legal arguments developed on the basis of them but also points out the controversial points of the regulation and the omissions of the Cluj-Napoca municipality. It also presents the activities of civic initiatives and organizations that, in addition to legal conditions and mere statistics, demonstrate a real societal need for multicultural cooperation and peaceful coexistence.

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A Settlement Reached before a Mediator and a Court Settlement—a Gloss to the Judgment of the Court of Appeal in Katowice of 23 September 2016, File Ref. no. I Aca 404/16

Author(s): Marek Dąbrowski / Language(s): English Issue: 4EV/2018

The gloss discusses the considerations of the proposition formulated in the justification for the judgement of the Court of Appeal, in which it was assumed that the difference between a settlement agreement concluded before the court and an agreement concluded before a mediator and approved by the court is that only the agreement concluded before the court has the legal force equal to that of a notarial deed. The presented doubts relate to the part of the reasoning concerning a settlement reached before a mediator and which has been “approved by the court.”

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Abatere disciplinară. Aplicarea criteriilor stabilite la concedierea colectivă. Imposibilitatea invocării unui alt criteriu în timpul litigiului

Author(s): Author Not Specified / Language(s): Romanian Issue: 6/2012

Curtea de Apel Bucureşti, secţia a VII-a civilă şi pentru cauze privind conflicte de muncă şi asigurări sociale, decizia nr. 2797 din 9 aprilie 2012

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Abatere disciplinară. Consum de alcool în incinta societăţii în afara programului de lucru (Curtea de Apel Constanţa, secţia I civilă, decizia nr. 366 din 14 noiembrie 2017)

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Abatere disciplinară. Consum de alcool în incinta societăţii în afara programului de lucru (Curtea de Apel Constanţa, secţia I civilă, decizia nr. 366 din 14 noiembrie 2017)

Author(s): Not Specified Author / Language(s): Romanian Issue: 1/2018

Abaterea constând în consumul de alcool în incita societăţii sau la punctele de lucru nu este condiţionată de săvârşirea acesteia în timpul programului de lucru, susţinerile reclamantului cu privire la aflarea în afara orelor de program neavând nicio relevanţă sub aspectul existenţei faptei.

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Abaterea disciplinară prevăzută de art. 99 lit. i) din Legea nr. 303/2004 privind statutul judecătorilor și procurorilor. Jurisprudență

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Abaterea disciplinară prevăzută de art. 99 lit. i) din Legea nr. 303/2004 privind statutul judecătorilor și procurorilor. Jurisprudență

Author(s): Tamara Manea / Language(s): Romanian Issue: 1/2022

Incompatibility. The obligation to abstain. The participation of the prosecutor in the trial of a case in the conditions in which one of the parties in the case filed a complaint against him for committing a disciplinary violation.

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Abolitio criminis – evoluţia conceptului în dreptul penal român contemporan şi analiza unor aspecte de teorie şi de jurisprudenţă naţională obligatorie privind noţiunea de dezincriminare

Author(s): Mihai Dunea / Language(s): Romanian Issue: 2/2019

The article addresses the concept of decriminalization - abolitio criminis - from the perspective of contemporary Romanian criminal law, under a series of theoretical aspects, as well as by analyzing the compulsory national jurisprudence (decisions of the Constitutional Court of Romania and some mandatory decisions of the Supreme Court). The following are considered: the relationship between the operation to criminalize, the essential feature of the crime to be a fact stipulated by the criminal law and the concept of decriminalization; the relation between the concept of decriminalization and that of a more favorable criminal law (mitior lex), considering the broad meaning, as well as the restricted meaning of the latter notion; the differences and the implications of understanding the notion of decriminalization in an abstract sense or concretely; the ways of demise of a criminalizing disposition and the corresponding consequences capable of occurring; the possibility / obligation and the implications of the integration into the concept of decriminalization of the decisions of admission of the exceptions of unconstitutionality of some rules of incrimination; the sphere and content of the actual concept of decriminalization (by reference to the essential feature of the crime represented by the typicality of the act - the property of the act of being typical), as well as the problem of a potential assimilation of the legal solution that decriminalization implies, in relation to the hypothesis of the emergence of new extinctive criminal cases (justifying and / or causes of non-imputability); the possibility of assimilating the situation where the double incrimination is lacking (when the verification of this condition is required for the application of the Romanian criminal law) with the appreciation of the concrete fact that has been committed as atypical (in the sense that it lacks a condition equivalent to that of its mandatory provision in the criminal law) and the relationship between this hypothesis and the concept of discrimination.

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$Abordări conceptuale privind latura obiectivă a infracţiunii de insolvabilitate intenţionată$

Abordări conceptuale privind latura obiectivă a infracţiunii de insolvabilitate intenţionată

Author(s): / Language(s): Romanian Issue: 3/2022

According to statistical data, the number of entities that declared insolvency in the Republic of Moldova has increased significantly. Thus, if, in 2016, 673 economic agents were declared insolvent, then only in the first quarter of 2022 their number stood at 2968 . In all countries of the world, no matter the level and degree of development of their economy, there is such a phenomenon as insolvency. It is obvious that a natural or legal person could become insolvent because of excess debt or lack of liquidity. In other cases, however, it is found that insolvency occurs because entrepreneurs are not able to manage their business, or they intentionally, through illicit actions, cause the company's poor economic condition. Therefore, the economic and financial difficulties of an enterprise may have the "domino" negative effect of attracting the financial collapse of business partners . We consider that the legislation of the Republic of Moldova provides sufficient instruments for the authorized administrator and the State Tax Service to have the possibility, together with the insolvency process, to identify offenses committed by the debtor even after the insolvency proceedings have been initiated. At the same time, we can assume that the detection of the insolvency offense in the Republic of Moldova is a rare phenomenon, because we are confronted with the problem of lack of professional training and specialization in the given field of the criminal investigation bodies, the competence in examining these crimes is assigned to the general organs of Ministry of Internal Affairs, according to art. 266 of the Criminal Procedure Code of the Republic of Moldova. However, the offense of insolvency (fictitious and intentional), as an economic crime, requires extensive knowledge of the financial and accounting field, civil law, insolvency, etc., for the instrumental provision of complex strategic investigations following the experience of the European Union. It is therefore important that criminal investigation structures investigating economic offenses in general and insolvency offenses in particular should have a high return through full use of institutional and professional capacities

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Abordări conceptuale privind tactica audierii persoanelor care fac declaraţii cu bună ştiinţă false

Author(s): Vitalie Rusu,Andrei Nastas / Language(s): Romanian Issue: 4/2022

An interrogation is a process of obtaining statements from a person who has information relevant to the investigation and examination of criminal cases. This is the most common and, at the same time, the most complicated procedural action. However, this is not only due to the fact that in front of the representative of the law enforcement body there are often people who do not want to communicate the truth, or they generally refuse to make statements; even the person who sincerely wants to communicate everything he/she knows about the circumstances of the case may be confused or make mistakes. False statements are particularly dangerous, especially in modest, „weak”, evidence cases, where the statements of certain persons are relied on as evidence, as a result of which the risk persists and the likelihood of unlawful rulings increases. False statements may relate to any circumstance of the criminal case and may be made by any person subjected to the act of interrogation. For the law enforcement body, the statements are a source of information and the data they contain have the status of evidence. For the suspect and the accused, the statements represent a means of defense against the suspicion or accusation brought against them. All these aspects are to be considered, thus appreciating the importance of the interrogation in criminal proceedings. To a large extent, these issues justify the importance and timeliness of the establishment and application of specific tactical procedures for the interrogation of persons making intentionally false statements.

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ABOUT THE VALUE AND DURATION OF LIFE IN THE “VICIOUS CIRCLE” DISPOSITION OF THE OWNER OR THE STATE

Author(s): Dragana Petrović / Language(s): English Issue: 2/2019

In no other form of life, but human life, time plays major role. Human life is not just present time, it is the “touching point” between the past and the future, the epicenter of the unbearable contradiction between life and death. For all of us time is primary factor since future offers the possibilities of living a quality life, opens new horizons for the realization of our motivations, expectations and achieving of human freedom. Discussions on this topic are older than life itself, which is a passing phenomenon, while the deliberation on euthanasia is a constant. Therefore, the opinions on this issue can be temporary and inadequate, satisfactory and definite – constantly being upgraded with new stands and changes and critics of the old ones. The history of this issue is full of speculations, scrutiny, unproven and disputable statements. This is so much true about euthanasia since this phenomenon is complex, extremely plural in its form, with “many faces” of merciful ending of life of a dying patient and with many possibilities for the abuse. In this paper the author under lines that to attempt to explain this phenomenon actually means to shed light on both moments, that is its both sides and make conclusions on the basis of these findings. This is even more important in this moment of the civilization’s growth glorifying individual freedoms, but at the same time facing moral alienation as its recognizable trait. Thus, unveiling all the aspects of this human drama becomes a prerequisite by itself.

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Absolvent al Universităţii „Spiru Haret”. Îndreptăţire la ocuparea unui post de profesor. Admitere recurs

Author(s): Author Not Specified / Language(s): Romanian Issue: 1/2014

Curtea de Apel Cluj, secţia I civilă, decizia nr. 4403 din 12 noiembrie 2013

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Abuse of Dominance in the Case-law of the Hungarian Competition Authority – a Historical Overview

Author(s): Ákos Réger,Andor Horváth / Language(s): English Issue: 21/2020

This paper provides a historical overview of the case-law and practices applied by the Hungarian Competition Authority (HCA) in abuse of dominance cases. The paper is co-written by practitioners of complementing antitrust fields, which ensures that both legal and economic considerations are explored. The paper identifies the unique characteristics of Hungarian legislation and case-law and critically evaluates them in light of EU competition law and economics principles. We analyse (i) the reasons for the high number of exploitative cases before 2010, (ii) the general principles applied by the HCA in exclusionary cases, (iii) the cost allocation assessments in dominance cases, and (iv) the issue of significant market power of retailers. The general starting point is that, judging by the number of dominance investigations, there is less antitrust enforcement by the HCA in recent years. However, the article concludes that less enforcement does not mean weaker enforcement. In fact, the quality of dominance cases, considering both legal and economic aspects, has increased over time. This tendency has also led to higher legal certainty in Hungary, which is beneficial for market players. Stronger criticism is only formulated against the concept of significant market power of retailers.

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Acces la documente. Decizia BCE de a plasa Banca Carige SpA sub administrare temporară. Refuzul accesului. Judecare în lipsă

Author(s): Not Specified Author / Language(s): Romanian Issue: 1/2021

Hotărârea Tribunalului, Camera a patra, 25 iunie 2020, cauza T-552/19, Malacalza Investimenti Srl împotriva Băncii Centrale Europene (BCE)

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ACCESS TO FILE: RIGHT(S) OF THE DEFENCE OR DEFENCE OF THE RIGHT(S)?

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ACCESS TO FILE: RIGHT(S) OF THE DEFENCE OR DEFENCE OF THE RIGHT(S)?

Author(s): Cosmin Flavius Costaş / Language(s): English Issue: 5/2018

In November 2017, the Court of Justice of the European Union ruled in the Romanian Ispas case and decided that taxpayers are entitled to have access to file in VAT inspections. The unprecedented recognition of the fundamental right(s) of the defence leads to a number of questions as to the extent of the breach the Court made in the regular defence of national tax administrations. The paper aims to look into the lights and shadows of the European VAT inspections and to scientifically build a specific model for the appropiate exercise of taxpayer’s access to file, in particular with regard to VAT fraud cases. In this respect, the author shall consider comparative approaches and a thourough analysis of the Court’s case law concerning VAT and procedural rights. Equally important, the paper shall consider the possible effect of the Ispas Judgement on the general development of the European rights of defence in all tax cases.

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