"CUSTODIA", "RECEPTUM" И ДОГОВОРНАТА ОТГОВОРНОСТ. ЕДНО ПРЕПРОЧИТАНЕ НА ДОГМИТЕ НА ГРАЖДАНСКОТО ПРАВО В СВЕТЛИНАТА НА КАЗУИСТИЧНИЯ РИМСКИ МЕТОД

Author(s): Carlo Peloso / Language(s): Bulgarian Issue: 1/2016

The issues relating to liability under contract occur - regardless of their respective individual system - on the plane of the structure of decision and responsibility on the plane of the allocation of the burden of proof. The contribution, after consideration of the main classical sources on the topic of custodia and receptum, offers a rereading update of the criterion, carved in the expression praestare custodiam, by strict interpretation of Art. 1218 of the Civil code and the provisions relating to liability so-called ex recepto which focuses on general and objective one based on contractual liability (a.k.a.: what is considered a violation in itself, not guilt) and re-interpretation of the sign cause ‘that can not be attributed to the similar language and descriptive phrases in the field of lack of responsibility for duties that focus on flexibility 'classical method' of classical Roman jurisprudence and flow into the regula nautilitas contrahentium.

"Dialogue" of the High Courts CJEU – CCR – HCCJ, regarding the prescription of criminal liability

Author(s): Tudorel Toader / Language(s): English Issue: 01/2022

The constitutional order is ensured by the jurisprudence of the constitutional court. The Court of Justice of the European Union cannot call for violation of the balance between state powers, nor for non-compliance with the principle of legality. The Supreme Court cannot disregard the case-law of the the Constitutional Court of Romania, it cannot establish the existence of a systemic risk, it cannot violate the principle of legality. The competences of the three High Courts are complementary without any collision.

"GEO-CULTURAL IDENTITY" IN MULTICULTURALISM: CAN IT BE A SOCIAL CONTRACT?

Author(s): Munir Hossain Talukder / Language(s): English Issue: 1/2019

Multiculturalism is the system of society that allows people of different cultural backgrounds to live together in harmony, whereas geocultural identity is the framework by which to classify a person based on their geographical and cultural roots. If identity and culture are to be intertwined in a social contract, then in a multicultural society, people shall have a right to protection of culture only. However, in the case of geo-cultural identity, some other rights (for example, identification with one's geographical heritage and cultural values) are also fundamentally deserved by all. Since this will create a more reasonable notion of rights and justice, which is the goal of any modern society, it is rational to say that geo-cultural identity in multiculturalism can be seen as a social contract. In this paper, I have analyzed the possibility of the coexistence of geo-cultural identity and multiculturalism through a social contract.

"NASCITURUS PRO IAM NATO HABETUR QUOTIENS DE COMMODIS EIUS AGITUR". РИМСКОТО ПРАВИЛО И СЪВРЕМЕННОТО МУ ПРИЛОЖЕНИЕ

Author(s): Malina Novkirishka- Stoyanova / Language(s): Bulgarian Issue: 2/2017

The report presents the rule "Nasciturus pro iam nato habetur quotiens of commodis eius agitur" as it exists in Roman legal texts in relation to the ancient Greco-Roman concept of personae, different from that which we conceive today. In this context, the capacity of human embryo to be subject of right comes from social, religious, medical, moral and especially legal recognition. We discuss some of the heritage aspects of this rule, as well as the issues of early human life, abortion, infanticide and murder of pregnant women, recognition of the newborn by the father, State, etc. Some decisions of the Roman jurisprudence are surprisingly topical and are part of many discussions on its bioethical and legal aspects.

"Panama żyrardowska" w okresie dwudziestolecia międzywojennego – wyrok Sądu Obywatelskiego w sprawie Aleksandra Lednickiego

Author(s): Przemysław Dąbrowski / Language(s): Polish Issue: 1/2014

„The Żyrardów Affair” was the loudest case of interwar period. It is an excellent source to learn about the history of foreign capital in Poland. A major role was played by Alexander Lednicki – a lawyer, the leader of Moscow’s Poles in the period of the Russian Empire, former president of the Liquidation Committee for the Affairs of the former Kingdom of Poland, and president of the American Bank in Poland in the interwar period. He participated in the signing of the agreement in Biskupice, for what he was called a traitor to the Polish state. After this event, he committed suicide. His son, Wenceslaus, stood in defense of Alexander Lednicki’s honour. Thanks to his initiative, the convened Civil Court composed of well- known people in contemporary Poland. After initial process, Lednicki was acquitted of the charges against him.

"Sucks Cases" in WIPO Domain Name Decisions

Author(s): Michal Koščík / Language(s): English Issue: 1/2007

Does the use of a domain name for criticism constitute the use of the domain name in Bad Faith? Is there any right to register a domain name confusingly similar with the name of a well known company to tell other people that it is vivisecting animals? Or is it a legitimate interest to register domain name like bridgestonesucks.com when your car skids on the wet road? Generally speaking there are two approaches to answer these questions. The first approach says that the right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark. Second approach considers the freedom of speech and says that there is a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial. Both approaches can be found in the WIPO domain name decisions. The main issue is to consider whether defendants in “sucks cases” are really intending to practice their freedom of speech or are just trying to blackmail the complainants. To prove a good faith defendants have to prove that they are not competitors of complainants in any way and that they have no commercial profit from their sites. If there is no other intent than to protest and to ridicule the complainants, the defendands have legitimate interests in respect of the disputed domain name.

"The Confined Woman of Poitiers” and the Guarantor's Position of the Brother

Author(s): Cristina Nicorici / Language(s): English Issue: 02/2021

The concept of the state penalizing a person for his or her failure to act must be understood and analyzed as more than criminal responsibility for something that a person has failed to do. The idea that, unless a person complies with the obligations imposed by the state and acts accordingly, he or she will receive a court sentence, is related to the principle of legality in criminal law, individual liberty to act, and the rule of law. This article will underline the concept of improper omission, and how the criminal liability for improper omission is affecting the principle of legality in the perspective of the French criminal law theorists. In contrast with other European countries that have a long-standing tradition in accepting and analyzing criminal omission (such as Germany or Spain, for instance), in France, the idea of criminal responsibility for an omission that is not expressly regulated by the law was rejected. This longstanding position is based on a famous case – law that was very popular and is still mentioned by the theorists of criminal law when talking about responsibility for omission (known as the "Poitiers Case"). This decision, however, besides being an important case-law for the French criminal law, raises a problem that has not been solved even in the systems where the commission by omission is accepted. The main question that must be answered is whether a brother has a guarantor's position, or, in other words, has a duty to act, if his sister is in danger, and in this article, I present the main ideas developed as an answer to this problem.

"Tirania" clauzelor neuzuale

Author(s): Ionuţ Florin Popa / Language(s): Romanian Issue: 01/2016

Art. 1.203 of the Civil Code regarding the unusual standardized clauses produces unjustified fear among the authors of agreements. The purpose of this study is to give the legal text the due importance and to identify an action intended to avoid the distorted enforcement of the legal text. Starting from the identification of the origin of the legal text (art. 1341 par. 2 of the Italian Civil Code) and after getting through the common sense comparisons with any texts provided by newer laws, this study is intended to actually identify the reasonable limits of the scope of the legal text: circumscribing the standardized clauses in the context of the fundamental mechanism of the offer and acceptance, the interfaces between art. 1.203 of the Civil Code and the legislation of abusive clauses, the formalism of special acceptance of the unusual clauses, the analysis of the legal list provided under art. 1.203 of the Civil Code. The unfriendly formalism of the special acceptance, as well as the restrictive nature of the legal list represents certain indisputable shortcomings of the legal text. A different and more flexible legal solution, the model for which was found in the comparative law, might have been taken into account.

"Words hurt for life" – legal aspects of verbal punishment of children

Author(s): Sylwia Różycka-Jaroś / Language(s): English Issue: 05/2016

This paper is dedicated to the issues of verbal punishment of children during the upbringing process. Statistics show that this is the most common type of punishment of children used by parents. Unfortunately, it often takes the form of a humiliating criticism, shouts or intimidation. All this affects negatively the child’s psyche. Taking into consideration the amendments which introduced a total prohibition on using corporal punishment towards children to Polish legislation, the issue of the limits of verbal punishments permitted by law still remains unsolved. Apart from a short definition and the description of the scale of this phenomenon, this paper is mainly dedicated to a legal analysis, which takes into account the stances of the doctrines of criminal and civil law. This paper attempts to give a straight answer to the doubts concerning this matter.

"Zlaté rybičky" aneb jde platit náhradu škody za res nullius?

Author(s): Jaroslav Knotek / Language(s): Czech Issue: 3/2006

S účinností od 14. dubna tohoto roku došlo k významově poměrně zásadní novelizaci zákona č. 115/2000 Sb., o poskytování náhrad škod způsobe­ných vybranými zvláště chráněnými živočichy, ve zně­ní pozdějších předpisů (dále jen zákon o náhradách). V čem lze význam této novely provedené v rám­ci zákona č. 130/2006 Sb., kterým se mění zákon č. 154/2000 Sb., o šlechtění, plemenitbě a evidenci hospodářských zvířat a o změně některých souvise­jících zákonů (plemenářský zákon), ve znění pozdějších předpisů a některé další zákony (dále jen novela) spatřovat? Nota bene, jde-li o novelu spočívající v do­plnění všeho všudy sedmi slov do stávajícího zákona o náhradách? Je to právě v samé podstatě provedené novely, která výrazně vybočuje z dosavadních manti­nelů zákona o náhradách a možná nejen jich.

"Постконфликтно уређење" одржаја на Косову и Метохији-ка поразу права прогнаних лица и "легализацији"противправних аката узурпатора?

Author(s): Duško M. Čelić / Language(s): Serbian Publication Year: 0

Violence against property, which in Kosovo continues to be made and in terms of the “post-conflict peace“, through the activity of quasi-governmental institutions, favors and systematic encroachment on property-legal relations to real estate through „normative“ activities of self-proclaimed authorities in the province. The Law on Property and Other Real Rights, adopted by the Kosovo Assembly in 2009, changed the rules on acquisition by prescription by altering the requirements of bona fide and lawful possession existing under the previously applicable law. The long absence of the rule of law,mass usurpation of real estate of refugees from Kosovo and Metohija, the lack of continuity of keeping the public registers and storing collections of documents and difficult or impossible access to justice for the greatest number of refugees, some of the reasons for the critical attitude towards these authors "provisions“. Bearing in mind the relevant international and domestic legal standards for the protection of human rights of displaced persons, we believe that ‘the provisions’ of the possession, flung open the door for legalization violent established the factual situation on the real estate of refugees from Kosovo and Metohija.

(1) Faptă tipică şi antijuridică îndreptată împotriva siguranţei circulaţiei pe drumurile publice. Imposibilitatea confiscării vehiculului condus de subiectul activ. (2) Faptă tipică şi antijuridică pentru care prin rechizitoriu s-a dispus clasarea.

Author(s): Cristian Valentin Ştefan / Language(s): Romanian Issue: 01/2020

1. In the event of a typical and unlawful act directed against the safety of traffic on public roads, the vehicle driven by the active subject cannot be confiscated under art. 112 paragraph 1 letter b C. pen. 2. If the confiscation is ordered through the indictment by the cessation of the prosecution for a typical and unlawful act, the competence to take the safety measure belongs to the preliminary chamber judge, not to the court seized with the indictment and the applicable procedure is the special confiscation in the case of cessation, not that of common law, in which the trial starts as normal.

(I) Competenţa instanţelor române. Divorţ. Pensie de întreţinere. (II) Motive temeinice pentru încuviinţarea păstrării numelui după divorţ. Respingere

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian Issue: 1/2021

(I) Dare de mită. Elementul circumstanţial agravant referitor la săvârşirea infracţiunii în raport cu un funcţionaravând atribuţii de control. Condiţii

Author(s): Cristian Valentin Ştefan / Language(s): Romanian Issue: 04/2018

I. According to art. 7 par. 2 of the Law no. 78/2000 for preventing, discovering and combating corruption, in force at the time of the events, bribery, in the form of offering, was more seriously punished if committed in relation to an official having control duties. Firstly, control duties involve prerogatives so as to verify certain situations, as well as powers to follow up on these situations and, if necessary, to take or propose measures accordingly. Secondly, the aggravating circumstantial element can be enforced only if the offense of bribery is committed in connection to the exercise of the control duties. II. a) Decriminalization occurs through two mechanisms: the abolition of criminal provisions in the context of an objective impossibility to frame the committed acts in another criminal provision in force and by modifying the constitutive elements of the offense in such a way that the in concreto act is no longer found in the legal content described by the new law. b) The activity of criminal law and the retroactivity of the decriminalization are based on different premises, so they cannot coexist. In the event of a succession of legal provisions, the activity of the criminal law claims that the act should be incriminated both in the old law and in the new law, the new law not being favourable. The retroactivity of the decriminalization claims that the act, incriminated in the old law, is no longer incriminated in the new law.

(I) Prerogativa părintelui nerezident de a avea legături personale cu copilul său. Structura complexă a prerogativei. Obligarea părintelui rezident de a aduce copilul în ţară

Author(s): Bogdan Dumitru Moloman / Language(s): Romanian Issue: 2/2020

(IM)POSIBILITATEA EVACUĂRII PE CALEA PROCEDURII SPECIALE A LOCATARULUI PENTRU NEPLATA CHIRIEI ÎN LIPSA REZILIERII ANTERIOARE A CONTRACTULUI DE LOCAŢIUNE

Author(s): Cristian Alexandru Mitroi / Language(s): Romanian Issue: 08/2020

Pursuant to art. 1038 para. 1 et seq. C.pr.civ., The court notified exclusively with the eviction request by special procedure, finding the simple fact of non-payment of rent, can not simply consider the lease contract terminated and can not directly order the eviction of the tenant if he did not intervene previously termination of the lease. Until the termination of the lease, the basis on which the tenant has the right to use the property is the lease that is still in force and which obliges the landlord to ensure the continued use of the property and the mere fact of non-payment of rent does not affect these rights. obligations as long as the specific sanction did not intervene - termination for the culpable non-execution of the obligation to pay the rent.

(IM)POSIBILITATEA PRELUNGIRII DREPTULUI DE CIRCULAŢIE ÎN LIPSA DOVEZII ÎNLOCUITOARE CU DREPT DE CIRCULAŢIE ‒ ÎN TEORIE ŞI ÎN PRACTICA JUDICIARA

Author(s): Andrei Sebastian Murariu / Language(s): Romanian Issue: 03/2022

The article purpose is to present the author's opinion related to the right of driving which can be prelonged based on the article 111 paragraph 6 in G.E.O. No. 195/2002 even when the replacement proof of the driving license is without the right of driving. The jurisprudence is not clear in this matter and the judicial bodies deny the request based on the fact that the right of driving cannot be prelonged as long as it was not granted in the first place. In the author's opinion, the judicial bodies wrongly believe that it exists two distinct rights, the right to drive provided by the license of driving and the right to drive provided by replacement driving license or temporary driving allowances.

(IN)ADMISIBILITATEA CONTESTĂRII PATERNITĂŢII STABILITE PRINTR-O HOTĂRÂRE JUDECĂTOREASCĂ DEFINITIVĂ, ÎN SITUAŢIA PROBELOR NOI OBŢINUTE PRIN PROCEDEE TEHNICO-ŞTIINŢIFICE CARE NU ERAU DISPONIBILE LA DATA SOLUŢIONĂRII CAUZEI

Author(s): Georgeta Bianca Spîrchez / Language(s): Romanian Issue: 05/2022

The following study focuses on those cases involving paternity, which at the time of their ruling took into account scientific evidence by which the filiation could not be established with certainty. If under the relevant domestic law the applicant has no possibility of challenging the judicial declaration of his paternity, the conclusion is that the authorities failed to secure his right to private life. In order to highlight the legal remedies that need to be considered, we have also referred to the main principles developed through the European Court of Human Rights case-law.

(In)aplicabilitatea dispozițiilor art. 127 din Codul de procedurăcivilă în determinarea instanței competente să soluționeze cererea de încuviințare a executării silite, contestația la executare

Author(s): Nicolae-Horia Ţiţ / Language(s): Romanian Issue: 3/2020

The article examines the compatibility of the legal provisions regarding the determination of the jurisdiction of the enforcement court with those regarding the optional territorial jurisdiction. Arguments are made in favour of the interpretation that optional jurisdiction is applicable only in litigation. Therefore, in non contentious proceedings, such as the approval of forced execution, the competence will return, in all cases, to the enforcement court, while in the case of enforcement appeals or other incidents or contentious requests, the provisions of art. 127 para. (1) and (2) in the Code of civil procedure become applicable, depending on the procedural position of the subjects mentioned in it.

(NE)DOSUĐIVANJE MEHRA U PARNIČNOM POSTUPKU BOSNE I HERCEGOVINE

Author(s): Adis Poljić / Language(s): Bosnian Issue: 83/2020

The subject-matter of this article is the real prospect of mehr being paid in lawsuits in Bosnia and Herzegovina. The article presents some aspects of mehr and analyzes positive regulations that are similar in their nature to mehr. Thus the analysis is made of the marriage contract and gift contract. The comparison is also made between these and the mehr. Considering the aspects of the time of payment, there are two kinds of mehr: mehr mu’ajjel and mehr muwejjel. Mehr mu’ajjel is paid straight away at the time of the marriage thus its payment is not considered here. The analyses made in this article are in regards to the second kind, mehr muwejjel which is paid later on. After the comparison between the marriage contract and the mehr we were able to conclude that there are differences in the actual effect of these two. This is so particularly with regards to formal validity; this is to say that mehr does not produce legal consequence whereas the marriage contract does. However, when mehr is compared to gift contract the comparison showed that mehr can itself be considered as a gift contract; such can produce legal consequence according to the law of Bosnia and Herzegovina. This is very important for it can bring about more responsible approach of men towards the mehr and would mean that women can exercise their rights in these cases.