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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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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 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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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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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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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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ACCESS TO JUSTICE IN THE TIME OF PANDEMIC: FUNCTIONING OF LEGAL AID FORMS IN NORTH MACEDONIA

Author(s): Ivona Shushak,Vesna Shapkoski / Language(s): English / Issue: 1/2021

The international community has significantly increased its focus on the improvement of justice systems around the world, in recent years. With the increase in effort and interventions in the sector, there has been a need to create tools to assess justice systems, to identify the main elements affecting the workings of the justice machinery. In a context of increasing interest and engagement in justice systems reform, the ability of citizens to access justice institutions to address their needs has come to be seen as an essential element of development, human rights, democracy, and the rule of law. The Republic of North Macedonia has been dedicated in a certain amount to improving the access to justice following these global trends. However, the pandemic has brought to the surface many obstacles in the realization of these efforts and imposed serious issues that need to be further solved. In this paper, we will elaborate on the present situation in North Macedonia from the personal experience of law clinics and civil society organizations that work and contribute closely on this issue. Furthermore, we will identify particular points that need to be advanced and relevant stakeholders to be engaged, to improve the situation, and bring justice closer to everyone.

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Access to Patient’s Medical Records in the Light of the Case Law of Administrative Courts

Author(s): Agnieszka Wołoszyn-Cichocka / Language(s): English / Issue: 1/2021

This study contains an analysis of legal regulations on the access to patient’s medical records and the compliance with these regulations in Poland. Based on the extensive case-law of the administrative courts, the following were examined, i.a., the forms of making medical records available, with particular respect to the making available of the original of these records, the possibility of charging fees for the provision of medical records, the form of the request for access to medical records and the time within which the provider of health services is required to make that documentation available. The list of entities authorised to get access to patient’s medical records has been discussed and attention has been drawn to problems in gaining access to the medical records of a deceased patient.

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ACCESS TO STANDARD ESSENTIAL PATENTS AND ANTITRUST ENFORCEMENT: THE CASE FOR LICENSING COMPONENT MANUFACTURERS

Author(s): Rafał Sikorski / Language(s): English / Issue: 2/2020

The ability to compete on numerous markets today depends on access to technological standards. When standards are protected by standard essential patents (SEP), a license to use such SEPs will be required. There have been numerous disputes in various jurisdictions over refusals to license SEPs. Most recently, disputes concern access to SEPs by the manufacturers of components. Some SEP holders deny access to their standard essential patents to component manufacturers and prefer to license end product producers. This practice has become a highly contentious issue around the world. In particular, manufacturers of components who are denied access to SEPs claim that such refusals amount to violations of competition rules. The author examines this highly contested practice is an attempt to show when denying access to an SEP license could harm competition.

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Accessing Judicial Decisions with Electronic Sources

Author(s): Ondřej Korhoň / Language(s): English / Issue: 2/2012

This paper is based on research conducted for a diploma thesis focusing on the accessibility of electronic sources of judicature in the Czech Republic. The paper deals with publicly as well as commercially accessible sources. Publicly accessible sources include NALUS administered by the Constitutional Court, the retrieval system of the Supreme Court and the retrieval system of the Supreme Administrative Court. Commercially accessible sources include Beck online, ASPI, and CODEXIS. All of these sources were evaluated on the basis of content range and search engine and user interface quality. This paper argues that the quality of public sources is generally comparable to commercial ones, in some cases even exceeding their quality (e. g. the NALUS system). The narrower specialization of the public sources makes them more user-friendly in terms of accessing judicature. On the other hand, judicature only constitutes one part of the services provided by the commercial systems: their search engines are shared by other services, which makes them more difficult to navigate. However this also enables them to provide judicature in the context of other relevant information such as legislation or literature.

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Accident de muncă ce a produs incapacitate temporară de muncă. Acţiune în obligarea angajatorului la plata daunelor materiale şi morale. Culpa angajatului. Lipsa de răspundere a angajatorului

Author(s): Author Not Specified / Language(s): Romanian / Issue: 7/2013

Curtea de Apel Cluj, secţia I civilă, decizia civilă nr. 471/R din 18 februarie 2013

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Accident de muncă. Calificare. Despăgubiri. Prejudiciu material. Prejudiciu moral. Plată muncă suplimentară

Author(s): Author Not Specified / Language(s): Romanian / Issue: 5/2011

Curtea de Apel Suceava, secţia conflicte de muncă şi asigurări sociale, decizia nr. 645 din 19 mai 2009

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