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Institutia plangerii impotriva solutiilor de netrimitere în judecata dispuse de procuror în Noul Cod de Procedura penala. Perspective ale unei noi reg

Author(s): Carmen Uzlau,Andreea Uzlau / Language(s): English Issue: Suppl. 3/2012

The article is an analysis of the complaint against the prosecutor’s decision not to indict, from the perspective of the new Code of criminal procedure and of the amendments which are intended to be brought to this law, through the law implementing the Code of criminal procedure, which is currently in the drafting procedure at the level of the Ministry of Justice. The article deals with the subject, the holders and the term of the complaint as well as issues concerning the jurisdiction and the settlement procedure, which are of current interest for both theorists and especially for law practitioners, starting with the numerous problems that may arise in this field, as well as with the frequency with which such problems are to be found in the jurisprudence of the courts.

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Incidenta Articolului 8 din Conventia Europeana a Drepturilor Omului cu privire la protectia dreptului la viata privata si de familie

Author(s): Carmina Aleca,Amelia Veronica Gheoculescu (Singh) / Language(s): Romanian Issue: Suppl. 3/2012

The right to private and family life is one of the fundamental human rights enshrined in Article 8 of European Convention on Human Rights, generically called „right to respect privacy and family life”, protecting a wide range of interests of personal nature. The essential foundation of these rights is the human dignity, regarded as being the base of fundamental human rights. Considering the whole sphere of human rights and fundamental freedoms, the right enshrined in Article 8 of European Convention on Human Rights comes to complete the wide range of personality rights, rights acquired by any human being by the mere fact of birth. This is the reason for this right has a very broad scope. Regarding article 8 of the Convention, the first paragraph comes to proclaim absolute rights related to social respect due to individuals, while the second paragraph sets up certain conditions for restricting the exercising of the guaranteed rights and freedoms. Therefore, the European Court of Human Rights is responsible for determining the scope of the rights and freedoms guaranteed by these provisions, by a dynamic interpretation and a continuously adjusting to the rapidly pace of society.

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Traficul de persoane in reglementarile internationale

Author(s): Alexandra Manea,Gabriel-Liviu Ispas / Language(s): Romanian Issue: Suppl. 3/2012

Human trafficking is a problem facing contemporary international society frequently. On the sale of slaves primary sense, the notion of human trafficking has expanded, with particular attention paid to trafficking in children for work, trafficking in women, especially as a form of sexual slavery, and trafficking in organs. Communication we present the conference aims to comparative and analytical presentation of the field, in law, considered in its evolution, constantly under the rules of public international law, but also in European law.

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The Preciput Clause in the Matrimonial Agreement

Author(s): Nadia-Cerasela Aniţei / Language(s): English Issue: Suppl. 3/2012

By provisions of art. 333 the preciput clause was introduced in the new civil Code. In the Romanian law, the preciput operates in favor of the surviving spouse, whether of the husband or of the wife, all the more so as the spouses cannot have any certainty in this regard at the time of marriage. As a clause of the matrimonial agreement, the preciput can only exist as far as the future spouses conclude such an agreement, the preciput clause being an accessory to the matrimonial agreement. On the other hand, the existence of a matrimonial agreement does not necessarily imply such a clause, however, once they have opted for it, the legal rules on the preciput will be fully applicable, having a binding character. In this context, the article aims to study: a historical journey on the preciput clause; the preciput clause: concept, parts, object, legal and judicial character; compatibility of the preciput clause with the separation of property matrimonial regime and with the legal community matrimonial regime; the enforcement of the preciput clause; consequences of the special nature of conventional freedom of the preciput clause and the impact of the preciput clause on the division of inheritance.

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INFRACTIUNEA DE TRAFIC DE PERSOANE IN DREPTUL COMPARAT AL REPUBLICII MOLDOVA CU UNIUNEA EUROPEANA

Author(s): Mihai Ştefănoaia / Language(s): Romanian Issue: Special /2010

The defending of the fundamental rights and liberties of a person represents a constant concern, common to all law systems, especially to those under the jurisdiction of the European Union. The modernization of the society we live in has attracted with itself, as it was expected, the developing not only of the positive sides, but also the flourishing of the organized crime and of the human traffic, obliging the authorities to adopt the adequate actions in order to stop these phenomena. The human traffic represents a violation of the human rights, of his dignity and liberty, a phenomenon which exists and manifests itself in almost all the countries in the world, no matter their degree of development. Being caused by a multitude of psycho-social factors such as poverty, the lack of education, disorganized family relations, the human traffic develops itself into a real phenomenon especially in the underdeveloped countries or in the course of development. Its effects can bring damage to a multitude of areas in the life of a community, such as demographic movements, health, public security, the level of education, the degree of occupation of labour force. In our era, this phenomenon has become more evident, when the term traffic was for the first time used to refer to the so-called commerce with white slaves, at the beginning of the 1900s, manifesting as a side of commerce. The human traffic continues to be on the front page of the international governmental organizations. The constant occupation of the agencies to apply the Law in the Republic of Moldova in order to diminish the human traffic will have the expected results when all the governmental agencies will be involved in the prevention and fighting of this phenomenon, taking into account the international standards in this field and the experience gathered until now.

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CONDUCEREA MIJLOCULUI DE TRANSPORT IN STARE DE EBRIETATE ALCOOLICA CU GRAD AVANSAT SAU IN STARE DE EBRIETATE PRODUSA DE ALTE SUBSTANTE

Author(s): Vitalie Stati / Language(s): Romanian Issue: Special /2010

In this study is carried out the research of the three crimes specified at art.2641 “Driving means of transportation with an advanced degree of alcoholic intoxication or intoxicated with other substances” from the Penal Code of the Republic of Moldova: by a person with an advanced degree of alcoholic intoxication or in a state of intoxication produced by narcotic substances, psychotropic and/or other drugs with similar effects; teaching driving knowingly to a drunk person, if the action caused the consequences provided by art.264 of the Penal Code of the Republic of Moldova; the refusal, evasion or resistance of the driver from breathanalysers testing, from medical examination in order to determine the state of a possible intoxication and its nature, or from collecting biological samples during the medical examination. Accordingly, the stipulations of this penal norm are interpreted on different positions, where is taken into account a new traffic regulation. The obtained results can be used in penal law application activity, but also in teaching and scientific activity.

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CREDITAREA CA O SURSA DE FINANTARE A ACTIVELOR CIRCULANTE A INTREPRINDERII VINICOLE

Author(s): Inna Zlatovcen / Language(s): Romanian Issue: Special /2010

If the enterprise can’t find investors or enough size of investitions, it must use its own financial resources. In this context the improvement of the using of the current actives has an important and actual mean. From theoretical point of view, temporarily free money can be directed to the production development. In this article was analyzed possibility of some wine production enterprises from the South of Moldova to use intern resources instead of the compliment investitions from the enterprise outside.

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CONSIDERATII PRIVIND NULITATEA RELATIVA A CASATORIEI POTRIVIT DISPOZITIILOR DIN CODUL CIVIL

Author(s): Nadia-Cerasela Aniţei / Language(s): Romanian Issue: Special /2010

Our article studies the cases of relative nullity of marriage, the legal status of relative nullity of marriage and the effects of relative nullity of marriage in terms of art. 297-303 of the Civil Code. If necessary, we will make suggestions of lex ferenda on certain provisions regarding the relative nullity of marriage. The nullity of the legal act of marriage is the civil penalty which follows the inobservance of some of the requirements of validity established by law, its acknowledgment or ruling removing the effects of that marriage. The Civil Code stipulates in articles 296-303 the following cases of relative nullity of marriage: 1. Marriage is contracted without the consent of parents or guardian or without the authorization of court guardianship; 2. Marriage is contracted without the consent of the parent who exercises parental authority; 3. Marriage is contracted by the existence of one of the following error vices of consent: error, fraud or duress; 4. Marriage is contracted by a person temporarily devoid of discernment ; 5. Marriage is contracted between a guardian and a minor person under his/her guardianship. Regarding the legal status of marriage nullity we distinguish between absolute nullity and relative nullity of marriage. In case of the relative nullity of marriage the following rules may be applied: - it may be invoked by the spouse claiming that his consent was vitiated by error, fraud or duress; - it can be raised by parents or guardian or court guardianship as well as by the parent representing the parental authority where consent or authorization is required. - limitation of action in finding the relative nullity is of 6 months; - the nullity grounds can be proved by any of the evidence allowed by law. As far as the consequences of nullity of marriage, regarding both the absolute nullity and the relative nullity, although produced by different reasons and under different legal rules, they generate the same effect, namely the abolition, both in the past and in the future of marriage as if it never existed. So, the provisions of art. 291, 334 and 335 of Civil Code shall apply accordingly.

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PRINCIPIILE GENERALE ALE DEVOLUTIUNII LEGALE A MOSTENIRII IN NOUL COD CIVIL

Author(s): Ilioara Genoiu / Language(s): Romanian Issue: Special /2010

The new civil regulation brings no news regarding the enunciation of the general principals of the legal devolution of the inheritance. But as regards the successional representation, which represents an exception for two of these principles, the new Civil Code reforms it quasi-totally. In the present paper we will analyze the matter of the general principles of the legal devolution of the inheritance, under all its aspects, in a comparative mode, in the light of the civil regulations in force and of the dispositions of the new Civil Code.

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EFECTELE DESFACERII CASATORIEI

Author(s): Ana-Maria Vulpoi / Language(s): Romanian Issue: Special /2010

The legal act of marriage dissolution shall take effect only for the future, not the past. The effects of divorce can be on personal relationships, and exercise capacity and produce economic relations between spouses, on the one hand, and between husbands and their children on the other side. The effects of divorce on personal relations between spouses refer to the status of a spouse, the name of spouses, the ability to exercise the moral support obligation, the obligation of loyalty, duty and obligation marital, cohabitation and citizenship. The effects of divorce on property relations between spouses relate to community property of spouses, the common house, the obligation to bear the costs of marriage and required material support to the legal obligation of maintenance and right of inheritance. The effects of divorce on property and personal relations between parents and their children are: custody of minor children, exercise parental authority, parental contributions to expenditure growth, education, teaching and training, exercise parental rights and duties regarding the child’s property, receiving state child allowance.

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REVIEW. LEGAL REGIME OF THE MORA INTEREST, AUTHOR Maria DUMITRU

Author(s): Liviu Pop / Language(s): English Issue: Special /2010

„Legal regime of the mora interest” is an original work of certain scientific value in the matter of obligations. Positive proof of this assertion are also the awards given in 2010 by the Lawyers Union in Romania, by the magasines „ Dreptul” and „Palatul de Justitie” and also by the „Titu Maiorescu” society. The objective of the scientific approach in the reviewed paper is a legal category of particular importance in the space of private scientific law, namely the issue of legal regime of the mora interest, which occupies a special place among different types of interest.

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ACORDUL DE VOINTA AL STATELOR- FUNDAMENTUL DREPTULUI INTERNATIONAL

Author(s): Cristina Mihaela Gheghes / Language(s): Romanian Issue: Special /2010

The legal basis of the international law is given by the agreement will of the sovereign states composing the international society at a given time. In the absence of some public authorities having international legislative, administrative and juridical attributions, through which some of the legal rules could be adopted and imposed, the international law is built on the state agreement will. The purpose of the current work is to highlight this aspect.

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ACTIUNILE CARE DEZORGANIZEAZA ACTIVITATEA PENITENCIARELOR IN REGLEMENTAREA LEGII PENALE A REPUBLICII MOLDOVA. ANALIZA DE DREPT COMPARAT

Author(s): Vlad MANEA / Language(s): Romanian Issue: Special /2010

In this study, are analyzed the views of the foreign legislatures on the conception of victim, subject, approaches of actions of disorganization the penitentiary activity. But above all, there are analyzed the legislatures view on the conception of the juridical generic object of those actions. Namely, of it generic identity profile. It’s concluded that only one of the analyzed foreign regulatory models (the Albanian model) is based on the same conception of the juridical generic object of the actions of disorganization the penitentiary activity, as the conception promoted by the Moldavian legislature. Several others examined foreign regulatory models are based on the conception of protection of the order of administration against actions which disorganize penitentiary activity. Several such models are based on the conception of protection of justice against the respective acts. Finally, the Maltese and Romanian regulatory models are distinguished by their eclecticism and disparity, based on an approach qualitatively different from the one implemented in the Moldavian penal law.

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TRANSMITEREA PROPRIETATII PRIN VANZARE IN TEMEIUL NOULUI COD CIVIL

Author(s): Iolanda-Elena Lungu-Cadariu / Language(s): Romanian Issue: Special /2010

The new Romanian Civil Code, under serious requirements of a social, economic and legal nature, brings a series of modifications in the matter of the transfer of the property right through the sale purchase contract. Some of these modifications are welcome and meant to eliminate the equivoque from the actual regulation (such as the rights creating constitutive effect of registering in the land register book of the building sale). Other modifications are, nevertheless, controversial and capable of shaking the thinking and legal Romanian logic at the moment (the transfer of the property right stipulated as a contractual obligation of the seller, the moment of the transfer of the contractual risk to the buyer). A reassessment of these latter modifications would be welcome on the part of the legislator.

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SUCCINTA PREZENTARE A CONTRACTULUI DE MANDAT IN NOUL COD CIVIL ROMAN

Author(s): Iolanda Boti / Language(s): Romanian Issue: Special /2010

The author intended to propose o brief presentation of the mandate from the new Romanian civil code perspective and he started from the actual rules of the mandate and from its presence in the day to day practice. The presentation of the mandate in the new Romanian civil code is concluded by the analysis of the articles with general application. The author points at the concrete application of the dispositions of the mandate in different circumstances under the law, in family matters, the physical person and the moral person, as well as in the special contracts matters. The connection with the new provisions of the institutions of representing and administration of the property of others is another aspect analyzed in the present material. In the closing, the author underlines the importance of jurisprudence and of practice in implementation of the provisions of the new Romanian code, once with its coming into force.

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ROLUL JUDECATORULUI IN IDENTIFICAREA LACUNELOR LEGISLATIVE

Author(s): Catalina- Elena Tudurachi / Language(s): Romanian Issue: Special /2010

Human evolution, everything that defines diachronic social, proved that, very often, gaps are revealed after the regulation took place.When the law is imperfect or when it is silent, when it meets the new requirements resulting from changes in society, it is backward, even unjust, is it possible that the judge, through interpretation to recover or adapt, even create the rule? In other words, can we provide case law, within certain limits, the possibility to be one of the sources of law? It is legitimate the law creation made by a body of magistrates whose power is not based on universal suffrage ? The question is to know who is right and who is required to cover these gaps in the law to prevent future cracks in the legal system. It is therefore inevitable that the laws have gaps. The first question placed to the judge is to decide when we are in the presence of a legistativ gap system. This requires defining the notion of gaps, decide which are the causes of poor writing or customary law and which are the solutions.

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POLITICA EUROPEANA COMUNA IN SECTORUL CERCETAREDEZVOLTARE- INOVARE & POLITICA EUROPEANA COMUNA IN DOMENIUL CONCURENTEI

Author(s): Roxana-Elena Lazăr / Language(s): Romanian Issue: Special /2010

The european politicy in the filed of research, development, innovation and the european policy in the field of competition are strongly interacting. Cooperation between firms, universities and other legal entities is very important for research, development and innovation; that is the reason for allowing different forms of cooperation, despite the strict rules of competition in European market. Common enterprises, collective projects in the filed of research contribute at economic growth and development. In order to have a functional Euromarket in the field of research, development, innovation, first of all, the gaps between the member states of the European Union must be reduced a fortiori before trying to catch up with The United States of America, Japan or China.

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CONSIMTAMANTUL LA PRELEVARE SI TRASPLANT

Author(s): Călina Jugastru / Language(s): Romanian Issue: Special /2010

The procurement and transplantation of organs, tissues and cells of human origin are regulated within the Law No. 95/2006 on health care reform. The primary condition for the two acts is the consent of the living donor, or of his legal representative – in the case of the deceased donor (for the procurement) and of the organ receiver (for the transplantation). The consent for organ procurement and transplantation is a special consent, considering the conditions expressly requested by law. Thus, it is regulated that the physician is compelled to obtain the previous, clear consent of the patient, according to the forms embodied in the annexes to the Law No. 95/2006. Prior to the intervention, the obligation to inform the patient about the risks involved by the procurement or transplantation and the foreseeable evolution of the state of health, must be performed. The sole case in which one can proceed to transplantation in the absence of the consent is that of the impossibility of the sick to express his agreement. The members of his family or his legal representative will give their consent on his behalf: in the event when they cannot be contacted, the physician will surgically intervene if any delay would lead to the patient’s decease.

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IMPEDIMENTE LEGISLATIVE IN DEZVOLTAREA ECONOMICA DIN REPUBLICA MOLDOVA

Author(s): Ciprian Valah / Language(s): Romanian Issue: Special /2010

Within the present article are presented the main legislative impediments that the Republic of Moldova enterprises are connected with. The legal barriers are related to the imperfect legislation in this country and were identified by the author as a local expert in commercial policies during some specific projects within the Organization for Promotion of Investments and Export from Republic of Moldova along with the European Union Delegation in Republic of Moldova. Correspondingly there were selected 4 branches, representative for the Republic of Moldova economy: agro alimentary industry, vine industry, textile industry and technology industry.

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DREPTUL DE AUTOR SI CONFLICTUL DE LEGI

Author(s): Adrian Circa / Language(s): Romanian Issue: Special /2010

Le droit d'auteur comme les droits voisins ignorent d'autant mieux les frontières que les oeuvres littéraires et artistiques ont vocation à l'universalité. Les règles de conflit de juridictions ne revêtant pas de spécificité remarquable, on se limitera aux deux autres questions habituelles en la matière que sont la condition des étrangers et le conflit de lois. Car une chose est de savoir si un auteur étranger bénéficiera d'un droit d'auteur en Roumanie, une autre de déterminer la loi applicable. En effet, on peut concevoir d'appliquer sur le sol roumain le droit d'auteur du pays d'origine de l'auteur étranger. Le Nouveau Code civil roumain détermine parfois la loi applicable. En matière de droit d’auteur, les règles de conflit de lois sont principalement édictées au niveau du droit international conventionnel. La Convention de Berne constitue à cet égard la référence. La Convention universelle sur le droit d’auteur contient également des règles de conflit de lois, mais depuis l’adhésion des Etats-Unis à l’Union de Berne, cet instrument conventionnel a perdu beaucoup de son intérêt pratique et a dès lors été quelque peu éclipsé au profit de la Convention de Berne. La principale difficulté affectant le conflit de lois en matière de droit d’auteur réside dans le caractère peu clair des dispositions conventionnelles contenant les règles de résolution dudit conflit de lois.

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