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The manner in which the legal vocabulary supported the clarity of legal norms and the traditional elements of juvenile criminal liability (age of criminal liability, different sanctions in amount and nature) ensured a more organic assimilation of the novelties at the entry into force of each penal code. At the same time, starting with 1864, the answers given by the legislator, more or less explicitly, to questions related to the right balance between the best interests of the child and the interest of society in reducing crime, depended on experiences arising from the implementation of the Codes and the consistency of the case law with the rationale of the law. The present material aims to explain the meaning of legislative evolution and, implicitly, the reasons for giving up some criminal policy solutions, in order to facilitate future legislative steps in this field.
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Although the new Criminal Code introduced a new structure to all election offences, problematic aspects can still be identified when it comes to the application and interpretation of the legal texts. The present article is structured in two parts. In the first part, the study aims to analyse the regulation pattern, the main issues and problematic aspects regarding the offence of preventing the exercise of electoral rights. In the second part, the offence of corruption of voters was analysed in the same parameters. Where applicable, offences committed in relation to a referendum were also analysed.
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In certain circumstances, the international community cannot effectively create the institutional framework for the prosecution of international crimes. For such grave crimes not to go unpunished, individual states, through their domestic courts, have the possibility to step in and cover the limitations of international tribunals. The available tool that enables this is the institution of universal jurisdiction. This study will focus first on the permissive universal jurisdiction, that particular strain of universal jurisdiction that enables states to prosecute international crimes without the related obligation to do so. In the second chapter the focus will shift towards the analysis of the duty to prosecute and the mandatory universal jurisdiction. The first two chapters will provide the definitions, limits, historical background, and an analysis of how different international crimes interact with the two types of universal jurisdiction. The article will end with a comparative study of how different states have implemented universal jurisdiction into their own legislation and case law.
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Before establishing, from a legislative point of view, certain conducts for which sanctioning and correction through criminal law is required, any tendency to generally repress them must reveal a deep and rational comprehension, as proximal as possible to the factual reality of the consequences of an antisocial attitude. From the precise perspective suggested above, the criminalization of the acts specified in the following article seems not to be based on theoretically conclusive grounds, given the positioning in the structure of the national Criminal Code in force, which differs significantly from the majority of ideas or norms externalized in foreign doctrines and legal systems, respectively. Thus, the aforementioned acknowledgement will be developed, for the beginning, by means of a concise presentation of the juridical treatment of indecent exposure/ public lewdness in comparative law and subsequently, in the Romanian framework. In support of such statements, the article will attempt to dispute, in a second chapter, which of the offences regulated by the former codification of 1969 are worthy of being considered in the corresponding current incrimination, even though both the legislator and the doctrine tend to be uncompromising with their respective statements. In order to provide the premises for a correct conceptualisation of the phenomenon, this research examines, we state that the primordial purpose is to naturally raise some doubts, because the observance of all fundamental principles of criminal law cannot be effectively carried out without a proper understanding of the factual motives that stand beyond unlawful behaviours.
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In the Decision no. 236/2020 (published in the Official Gazette no. 597 of July 8, 2020) the Constitutional Court admitted a constitutional challenge and found that the legislative solution contained in Article 118 of the Code of Criminal Procedure is unconstitutional, because it does not provide the witness's right to remain silence and non-self-incrimination. In the statement of reasons of this decision, the Constitutional Court examined the wording of Article 118 of the Code of Criminal Procedure in the light of the case-law of the European Court of Human Rights. Following this analysis, seeing that the legislative solution did not meet the standards imposed by the ECHR and the national case-law often found solutions that directly applied the principles imposed by the case law of the Strasbourg Court, the Constitutional Court declared the legislative solution unconstitutional. The problem that arose after this decision is one of interpretation and application. In this respect, it should be noted from the outset that this decision transformed the witness's rights to silence and non-self-incrimination into absolute rights, thus introducing an even higher level of protection than that conferred by ECtHR case law. It remains to be seen whether this protection will not exceed the discretion of states when it conflicts with the rights to an effective investigation conferred on victims who allege violations of other rights guaranteed by the ECHR. “We also consider, on the assumption that the person heard as a witness makes false statements in order not to incriminate oneself, that such conduct does not exonerate the witness from responsibility for the crime of perjury, unless it refers exclusively to his actions (for example, in this case, the witness P.G.D. said that he did not raise the knife), but he cannot declare a lie, vis-à-vis the defendant/person who is suspected of having committed the act (in this case, that the defendant B.I.P. did not have a knife on him, did not throw it etc.)” (majority opinion). The difference of opinion in the present dispute focuses, in essence, on the interpretation of Decision no. 236/2020 (...). Thus, contrary to the finding of the majority opinion, I believe that the correct interpretation of this decision is to give any witness heard regardless of the nature or object of the case, an absolute right to silence and non-self-incrimination” (dissenting opinion).
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The first interaction with a contract begins with the operation of seeking to classify it, in order to establish the applicable legal regime. The institution analysed in this study enjoys a high degree of attention in the literature. The novelty element of this approach consists in proposing a methodology that can be used in order to classify the contract. After exposing a series of theoretical considerations regarding the analysed notion and its role, we proceeded to the presentation of the methodology which we propose and of its steps. Hence, in order to classify the contract, it is first necessary to interpret the convention in order to identify the obligations assumed by the parties. Then, it is necessary to delimit the main obligations from the accessory ones, presenting in our study the criteria that we deem applicable for this purpose. Afterwards, it is necessary to compare the main obligations identified with the main obligations that are specific to the nominated contracts, in order to see whether an identity relation can be found or not.
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The abundance of explanations and definitions present de lege lata is also noticed from a superficial look at the contemporary legislation. In these lines, we have tried to find the place of the legal definitions in the formal normative set, investigating whether these rules are or not basically legal rules. After detecting a presumption of normativity applicable to any normative act, we have made a distinction between the law as a discourse and the discourse about law, assaulting the legal metadiscourse, for the purpose of calculating the deontic force of the legal definition in a more accurate manner. The study ends with certain proposals to state the definition and order it.
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Ratione temporis, the contract, a planning and forecasting legal document, is completely and always subject to the applicable law upon its conclusion (Fr.C. von Savigny) – tempus regit contractum –, the new law not being able, without retroactivity, to amend, totally or partially, the conclusion conditions and its legal effects either. Lex temporis contractus, respectively the tempus regit contractum principle govern, in principle, the anticipative or progressive contracts, the new law, insofar as it is applicable to the final contract, concluded according to a provisional or preliminary agreement (promise to contract), or, as the case may be, to the progressive contract (the option agreement, the contract concluded between the absent parties) having to observe the effects of the provisional (preliminary) contract or, as the case may be, the already achieved constituent elements of the successive contract and which, without any retroactivity, can neither reverse, nor amend.
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In the form enshrined in Article 1.173 of the new Romanian Civil code, the distinction between commutative and aleatory contracts reflects the jurisprudential image of these categories, developed, in France and in Romania, based on the texts of the Napoleonic Civil code and the Romanian Civil code of 1864, but with notable deviations from the original meaning of the classification. In particular: (i) the dichotomy thus inherited in the new Civil code uses, as its criterion, the degree of certainty of the contract’s legal effects – the existence (effectiveness) of rights and obligations, as well as the extent of their object – with the result that, in a technical sense, in an aleatory contract the anticipation of a chance of gain and a risk of loss flows from the possible variations of such legal effects, and not from mere fluctuations in the cost of performing or the value of the performance; (ii) the legal definition of the aleatory contract acknowledges the possibility that, in such agreement, the uncertainty of gains and losses itself, rather than just the uncertainty of legal effects, may be allocated to a single party, but Article 1.224 of the Civil code, which precludes reliance on lesion in aleatory contracts, is based on the jurisprudential consensus that the distribution of chances of gain and of risks of loss is always bilateral or multilateral. Against this background, the domain of contracts in which at least one party acts with a speculative purpose exceeds the category of aleatory contracts in a technical sense. At present, the legal classification of agreements in commutative and aleatory is not necessary for examining the validity of contracts regarded as essentially aleatory – the general requirement of the purpose fulfils this role – and has no practical use in establishing the scope of legal institutions which are generally regarded as incompatible with the assumption of risks, such as lesion, hardship and the doctrine of risks. The application of such institutions depends, in each particular case, on an individual analysis of the risks assumed, and not on the global classification of the agreement as technically commutative or aleatory.
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The clauses of holding harmless or limitation of liability are included within the conflict area of those two great principles governing the law of civil contracts and, for this reason, they bear the tension generated by the concurrence of the contrary forces with which they act. The principle of the contractual freedom sustains the parties’ competence to set up the rules which will govern their behaviour and the legal consequences of their breach. However, the specific nature of the clauses of mitigating liability makes them disturbing until endangering the rule of the binding force of the contract. For the purpose of conciliation thereof, the system of law imposes barriers of the freedom to stipulate any clauses of mitigation of liability, setting up exceptions from their main validity, either based on restrictions of public order or on their need to preserve the structural balance of the contract, or on moral reasoning. However, their application remains a challenge, since many notions are uncertain, and the appreciation margin belonging to the judge is wide enough.
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The architecture of the civil process is a variable one: the role of the judge in finding out the truth, configured by art. 22 C. pr. civ., acts in accordance with other fundamental principles applicable to jurisdictional activity, its forms and mutations being, in most cases, unpredictable. In this regard, the legislator drew on the French Code of Civil Procedure, in line with the doctrine, in order to set up a legislative solution flexible enough to allow the simultaneous application of the principle of availability, which reserves the right to set the limits of the procedural framework, and that of finding out the truth, in which the judge, in the exercise of his judicial function, has the main role. How active this role should be is probably a question as old as the procedure or the notion of process. The article analyses a series of theories present in Romanian and French doctrine and tries to delimit a series of concepts, in an attempt to re discuss some of the “classic” sub themes of a traditional debates on the limits of the active role of the judge in the classification or reclassification of acts and facts brought before the court.
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The text below is a summary paper regarding a potential research topic: to what extent do procedural interpretations of the texts included in the European legal instruments generate only procedural effects? The essential idea of the presentation is that, often, apparently procedural solutions transgress the procedural framework and produce significant effects, namely they openly influence the solutions which can be adopted by applying the substantive law. The legal benchmarks of the research aim at the influence of the European autonomous interpretation conferred by the Court of Justice of the European Union on certain texts from Regulation no. 1215/2012 (Brussels I bis) regarding the jurisdiction in the civil and commercial matter (including also the instruments which anticipated this document, namely the 1968 Brussels Convention and Regulation no. 44/2001, both referring to the same jurisdiction in civil and commercial matter) and the “radiant force” which these interpretations have on the substantive rules of conflict [mainly, with reference to Regulation no. 593/2008 regarding the law applicable to contractual obligations (Rome I) and Regulation no. 864/2007 regarding the law applicable to non contractual obligations (Rome II)], and also on the national substantive rules which are virtually applicable. To this end, three procedural “clarifications” and their impact on the solutions on the merits are aimed at: the question of provisions regarding the designation of jurisdiction, the topic of direct actions and that of the non option rule between the contractual and non contractual liability. The impact of these procedural solutions is variable, however, consistent, certifying that almost always, when the procedural solution manages a concept based on which both the procedural law and the substantive law operate, the effect of this solution exceeds the limits of the procedure and amends or removes the application of the substantive law – a phenomenon which may be qualified as the “influence of form over substance of the legal relationship”.
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In private international law, applications of “substance over form” are in close connection to the principle of autonomous interpretation, according to which the terms and concepts found in European regulations of private international law (international jurisdiction, applicable law, cross border enforcement and recognition) are to be interpreted in a uniform manner, independent from the understanding that similar concepts would have within the national legal systems of the Member States. As a first application, even though the “form” is given by national law, as a first classification of the legal concepts readily available to practitioners, the “substance” may be completely different if the matter is one of international jurisdiction, applicable law or cross border enforcement or recognition. Secondly, if the “form” is given by the phrasing of the regulations themselves, sometimes the “substance”, as the autonomous interpretation given by the European Court of Justice to that phrasing, may be substantially different regardless of recourse to national law. This paper aims to analyze these applications mainly from a procedural standpoint (international jurisdiction, cross border enforcement and recognition), complementing a previous study centered on applicable law.
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Contemporary economies may not be imagined in the absence of standard form contracts, concluded by the adhesion of the customer to the professional’s offer. This undeniable reality forces private law scholars to study the contract as product and the modularity of its terms, as well as the relationship between core terms and ancillary terms in contracts. At the same time, the analysis must focus on the structural and functional relations between contractual clauses, contractual terms (elements) and the contract in its entirety, because, from an economic point of view, these aspects are of extraordinary relevance for the functions of contract law in a market economy. Therefore, from a legal perspective, the study of markets is, alongside with the study of property, no more than the study of contracts. It is the merit of the economic analysis of law to have emphasized this reality and to have brought it to the center of the interdisciplinary approach to private law, thus contributing to a debate which, however formal it may appear, focuses on the substance of fundamental concepts. Centered on standard form contracts, the following paper studies the relation (i) between contractual clauses and contracts, (ii) contractual clauses and contractual terms (elements), (iii) the standardization of contracts and their conclusion by adhesion, and (iv) the standard form contract and the (derived) object of contractual obligations.
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The first interaction with a contract begins with the operation of seeking to classify it, in order to establish the applicable legal regime. The institution analysed in this study enjoys a high degree of attention in the literature. The novelty element of this approach consists in proposing a methodology that can be used in order to classify the contract. After exposing a series of theoretical considerations regarding the analysed notion and its role, we proceeded to the presentation of the methodology which we propose and of its steps. Hence, in order to classify the contract, it is first necessary to interpret the convention in order to identify the obligations assumed by the parties. Then, it is necessary to delimit the main obligations from the accessory ones, presenting in our study the criteria that we deem applicable for this purpose. Afterwards, it is necessary to compare the main obligations identified with the main obligations that are specific to the nominated contracts, in order to see whether an identity relation can be found or not.
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In the recent years, there has been a growing interest in obtaining exclusive prerogatives conferred by intellectual property rights such as copyright, registration as an industrial design or trademark on folk or religious creations. In 2017, the High Court of Cassation and Justice recognized the copyright for a craftsman and his heirs on 151 crosses in the Săpânţa Cemetery. Starting from this case, this analysis aims to clarify aspects related to the application of the law in time and the classification of respective contracts that had for object real estate goods by their nature or by destination, possibly protected by copyright. The arguments that formed the basis for the recognition of copyright for crosses made over 40 years ago are related to the originality of the crosses and the protection conferred for the original works by Decree no. 321/1956. The challenge of this analysis consists in the classification of contracts in a procedural framework in which not all parties were present. The classification of the agreements by which the crosses were alienated as contracts for creating future works, protected by copyright, without the buyers of the crosses or their heirs being parties to the proceedings, creates a new legal situation. This has effects regarding the property right on these goods and especially with regard to the material disposition as its attribute. Moreover, even recognizing this classification, the compliance of the formal conditions for the transfer of copyright is also of interest.
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The impact of the changes in the management of international private relations is visible in the context of the connecting factors. The era of some of the connecting factors has been “consumed” (the case of domicile), while other criteria prove the flexibility, predictability and security of the legal circuit (the situation of will and habitual residence). The segment of couple unions highlights a multifaceted will, with notes common to the substantive law and, respectively, with particularities imposed by the element of foreignness. This analysis considers the property status of spouses and partners, as European law and national private international law have been innovating in recent years, in terms of the freedom to organize property relations. Regulation (EU) 2016/1103, Regulation (EU) 2016/1104 and the Romanian private international law (as an example of national law) contain provisions addressed to the matrimonial agreement and the partnership agreement, as well as to the two conventions, by which the law applicable to the legal relationship is designated and by which the competent international court is elected.
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Even if the characterization of contracts related to software raises actual problems of undoubted practical interest, the solutions on the matter are neither unanimously followed nor evident at first sight. Having as starting point the Vienna Convention on the International Sale of Goods, the article aims to discuss to what extent and under what conditions the qualification “sale” would be appropriate in their regard; issues such as the categorization of software as a good, the transfer of ownership despite the existence of an IP right on software or the incidence of the software customisation on the nature of the contract will be subsequently reviewed.
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