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RESPECTAREA DREPTURILOR OMULUI IN PROCEDURA EXTRADARII

Author(s): Irina Ulianovschi,Gheorghe Ulianovschi / Language(s): Romanian Issue: Special /2010

The analysis of the jurisprudence of the European Court of Human Rights gives basis for concluding that the authorities of the states, in their activity of international cooperation in combating crime, are obliged to respect human rights and fundamental freedoms guaranteed by the Convention for Human Rights and Fundamental Freedoms, which may be violated by the extradition procedure. The conflict between the obligations of a State Party to the Convention to respect fundamental human rights and his obligations arising from an extradition treaty concluded with a third-party State should be settled by giving priority to the obligations to respect the bonds of fundamental human rights.

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ADMINISTRATIE PUBLICA SI TEHNOLOGIE INFORMATICA

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

The contemporary administrative phenomenon is undergoing a series of structural and functional changes which derive both from its legal and ideological conditionings, and from the computerization of the economy and of the public services. “The knowledge society” is a major challenge for the European authorities which, within several strategic plans (The Lisbon Plan, The Agenda 2020), have designed the reorganization of the whole social system according to the coordinates of digitalization and e-governing.

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EPISTEMOLOGIA DREPTULUI: TEORIE SI PRACTICA DE STUDIU INTERDISCIPLINAR AL DREPTULUI

Author(s): Rodica Ciobanu / Language(s): Romanian Issue: Special /2010

The article raises important problems of contemporary interdisciplinary sciences. In general, our interest was focused on revealing the essence of the theory of scientific knowledge of the law. Taking into consideration the current trends to combine the subjects, to establish bridges of communication among countries, cultures, communities, the study of theoretical - methodological problems, such as the epistemology of law, is considered to be relevant. Thus, the article deals with problems of epistemology of law, by classifying it in the context of subjects’ conbination, in line with the complex process of integration of sciences and with the contemporary unification of subjects, knowledge, methods, etc.

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CONSIDERATII PRIVIND CONCEPTUL DE CONSTITUTIONALIZARE A DREPTULUI

Author(s): Andra Iftimie / Language(s): Romanian Issue: Special /2010

This article focuses on how human rights are putting their imprint on the civil and criminal law. Moreover the Constitution is a basis of legitimacy of all branches of law. After the analysis is the question of whether constitutional law is the basis of unifying the national law. We can not talk about national unity, but of a closer and more effective collaboration between different branches of law, in compliance with the Basic Law.

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DREPTUL PARLAMENTAR, COMPONENTA A DEMOCRATIEI

Author(s): Gabriel-Liviu Ispas / Language(s): Romanian Issue: Special /2010

The modern state that emerged following the Peace of Westphalia has generated the development of political institutions in which to express the will of citizens and political parties. Parliament is an institution with a fundamental role in any democratic society, along with the institution of the head of state, government and judiciary organization. This article shows how it appeared for the first time, the institution of parliament, its constitution and composition (in different periods of development of society, from the appointment, continuing with the census and to universal suffrage). It also done a comparative analysis of unicameralism with bicameralism, presenting the advantages and disadvantages that each of these modes of existence of the institution of parliament implies. It is presented the political structure of parliament and it is insisted on the functions that Parliament has on the proper functioning of a state in good governance of public affairs, in representing citizens in the control of how the executive exercises the power.

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GLOBALIZAREA PE COORDONATA TEMPORALA: DREPTATEA INTERGENERATIONALA SI RETROACTIVITATEA

Author(s): Gabriel Radu / Language(s): Romanian Issue: Special /2010

Globalisation acts not only in the spatial-geographical axis but in the temporal one.General theories of law have both the capabilities and vocation to solve the controversial issues underlying this subject. This article attempts an approach of the concept of intergenerational justice in an universalist and contextualist paradigms views, emphasizing possible development in the corrective justice domain and presenting a conceptual map of the moral arguments of retroactivity and prescription.

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JUSTITIE RESTAURATIVA. O NOUA PARADIGMA (APRECIATIVA)

Author(s): Simona Damian,Antonio Sandu / Language(s): Romanian Issue: Special /2010

Although the convergence between appreciative ideology and the ideologies derived from the need of preserving human dignity it is not complete, these can still be seen in a single paradigm of affirmative actions. Although restorative justice principles are not inspired by appreciative inquiry methodology, these are at least converging; both of them emphasizing the positive potential of human being. Moving the focus from the criminal act and the deserved retribution of this, on the recovery of prior state offence, for both victim and offender, these can be interpreted for the purposes of quitting the paradigm of deficiency, and the integration of positive experiences generated by the mediation of relationship victim – offender, in an appreciative paradigm. Applying appreciative inquiry in restorative justice and in the probation systems is a unique area all over the world, this being realized only as an experiment in some restorative justice programs.

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ASPECTE TEORETICE SI PRACTICE PRIVIND REJUDECAREA PERSOANELOR JUDECATE IN LIPSA

Author(s): Mihaela Laura Pamfil / Language(s): Romanian Issue: Special /2010

The right to apply for a retrial of the case and to be present at the judgment are one of the most important guarantees for the person who is the subject of an European arrest warrant issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia. The right to apply for a retrial had been issued by the 2002/584/JHA Council Framework Decision of 13 June 2002 and had been inforce in the Romanian Penal Procedure Code in 2003. According to the dispositions of the art. 5221, a persoan who was judged in absentia had the right to to apply for a retrial of the case and to be present at the judgment. Thanks to the summary regulation of the proceedings, the legal practice faced some difficulties to apply the legal text. Another problem raised by this legal text is the discrimination made between the defendants rendered in absentia which have not been arrested under a European arrest warrant and those which have been subject of this kind of warrant. The main aim of this paper is to analyze the proceeding regulated by the art. 5221 and to offer a suggestion for the improving the legal text.

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REGLEMENTAREA JURIDICA A CONCEDIERII PENTRU INCALCAREA DISCIPLINEI DE MUNCA

Author(s): Olga Iovu (Garaga) / Language(s): Romanian Issue: Special /2010

In the given article the main attention has been paid to the research of the bases of cancellation of the individual labour contract for fulfilment of a minor offence; dismissal procedure in this case; mechanisms of protection of the rights of employees at illegal dismissals. The basic way of research of the specified legal categories was the comparative analysis which is made for the first time on the basis of studying of a theoretical, practical and the standard-legal material on a theme. The main objective of the research was revealing of blanks, lacks and discrepancies in legislative regulation of the specified legal categories, and also completion of a missing part of theoretical base on the given theme. As a result of the conclusions and recommendations received on the basis of research the purpose of perfection of the labour legislation regarding to regulation of discipline of work and sanctions for its infringement can be achieved. Also we have an intention to analize the experience of the developed countries on regulation of discipline of work at the enterprises, an order of resolving the individual labour disputes (pre-judicial and legal proceedings), on creation of specialised courts on labour disputes is rather useful. Long practice of functioning of the specified institutes of the judicial power in member countries of the European Union has proved the utility in sense of availability, speed, absence of certain formalities and the big material inputs and, finally, peak efficiency of judgements.

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FORMA DE ORGANIZARE A UNIUNII EUROPENE SI LOCUL PARLAMENTULUI EUROPEAN

Author(s): Gabriel-Liviu Ispas / Language(s): Romanian Issue: Special /2010

European Union is an atypical supranational structure, being different as well from intergovernmental system, as from the confederate or federal political system. It was established in an effort to give European countries a chance to fight for prosperity and development; founders of the European communities have emphasized mainly on the type of work assigned and less on actual legal organization. Thus, by the Treaty of Maastricht, there were not even discussions about european citizenship. The fall of communism, the disappearance of political polarization and the desire for democratization of the states form the centre and southeast of Europe were elements that led to an unprecedented development of the European Union. The Union position on the international scene as a leading actor, the delimitation of competencies of international representation between the states and the Union, application of the principles of proportionality and subsidiarity were issues that concerned states, institutions and field theorists. Conferring legal personality by entry into force of the Treaty of Lisbon is a step forward, but not decisive step. Throughout the paper we present a vision upon the types of skills, taking into consideration how international treaties can be reported to the construction union. Without being defined as a federation, confederation, atypical structure, international organization, federation of nation states, the European Union is an interesting structure, challenging to those who focus on its unique way of organization and functioning.

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TRASATURILE ESENTIALE ALE INFRACTIUNII. ASPECTE CRITICE

Author(s): Calina Andreea Munteanu / Language(s): Romanian Issue: Special /2010

The offense is defined in art.17 of the Penal Code as the socially harmful act committed by guilt and stipulated by the criminal law. The different and controversial ways in which the crime may be characterized has determined the authors to affirm that the legislator should refrain from giving a general definition of the crime as this task has to be assumed by the criminal doctrine. In spite of this fact, the New Criminal Code defines the crime in art.15 as “the act stipulated by the criminal law, committed by guilt, unjustified and imputable to the person that committed it”. The first essential characteristic is that the act should be stipulated by the criminal law, while the guilt appears as the second essential characteristic of the crime. Besides these two essential features, the new Penal Code introduces two new characteristics: the unjustified character of the crime and the imputable character of the crime. The criminal doctrine criticizes the unclear way in which the text of art.15 is formulated in the New Penal Code, laying stress on the fact that a law must not include terms with multiple meanings in order to avoid conflicting solutions. The definition of the concept of crime by means of its components (actual facts stipulated by criminal law, committed by guilt), can be found in all the definitions of the concept included in the reference European criminal legislations. In some cases, this definition has been completed by other essential features, and other times this definition has been compressed. In our opinion, a definition suggested by the specialized literature that is worthy of note is the one according to which the crime is an act stipulated by the criminal law in regard to which none of the justificatory causes stipulated by law interfered and committed by guilt.

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CONSIDERATII GENERALE CU PRIVIRE LA PARADISURILE FISCALE

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

The paper aims at explaining the meaning of fiscal paradise, the emergence and the evolution of fiscal paradises, their main features as well as their advantages. In these small countries, most of them situated on islands, one can choose the tax base, the installation site, one can live here, one can earn money or obtain citizenship and they address either to individuals or to legal persons or to both at the same time. The states regarded as tax havens are a refuge for all types of companies allowing the beneficiaries to reduce and even to entirely suppress taxation within the law in a manner virtually impossible to control by the tax services in the country of origin. Tax havens exist. They can be used to achieve high profit, for money protection or to get rid of the numerous taxes. Nowadays, the best investment opportunities are beyond our own borders, within the many foreign markets.

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PROBLEMA UNIFICARII LEGISLATIILOR VAMALE NATIONALE IN STATELE CSI IN PROCESUL DE INTEGRARE EUROPEANA

Author(s): Zinaida LUPASCU / Language(s): Romanian Issue: Special /2010

Period of 15 years of the post-Soviet collaboration is linked to a number of differences and the customs legislation of the Member States C. S. I. is poor. Thus emerged clearly need to develop a collaborative scientific concept of Moldova with other post-Soviet sphere of customs activity. First, the legal regulation of post-Soviet cooperation in the sphere of customs activity is criticized both by scholars, as well as collaborators in practice. Although customs integration of post-Soviet countries is an objective necessity and serves as an integral part of economic, legal problems related to this have not been adequately studied, therefore, were often misinterpreted. Secondly, the development and establishment of free trade zone with the post-Soviet states-members of CIS are of great importance for Moldova. Legal regulation of customs cooperation serves as a special economic base of Independent States. Unfortunately, at present, this question has not been elucidated in terms of the theory of law. Its scientific research would lead to solving of many problems in the process of unifying the customs legislation of the post- Soviet countries. Therefore, it is noteworthy that the problem requires a thorough scientific research, both in terms of theory and practice. Thirdly, the topic can serve as the concept of customs cooperation in general, including the fact that Moldova was accepted as a member of the World Trade Organization and should strengthen development custom cooperation with states that are not Member of the Community. Possibility for legal issues within CIS show preparedness of post-Soviet states, including Moldova, to participate in the work of international organizations in addressing issues of commercial and customs cooperation. Fourthly, the issue is welcome to legal doctrine, because during the research process will be characterized several new concepts, previously unknown to the general theory of law, such as Free Trade Zone, integration, single customs territory, etc.; which we should give a scientific interpretation. This theme will serve as the topic for scientific discipline of custom law, as well as to the entire public law. The aim of this study is a very compelling elucidation of aproblem for the theory and practice of customs law - the problem of unification of customs legislation of post-Soviet countries, as well as developing proposals, objectives that would lead to resolution of these problems during the process of European integration.

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INFRACTIUNEA DE OMOR SIMPLU IN LEGEA PENALA A REPUBLICII MOLDOVA

Author(s): Sergiu Brinza / Language(s): Romanian Issue: Special /2010

In the present study is carried out the research of the four constituent elements of the offence of murder, stipulated at art.145 of the Penal Code of the Republic of Moldova: the object, the objective side, the subjective side, the subject. Article seeks to clarify some less studied aspects of the offence of murder, while it does not require the presence of aggravating circumstances. Among the results obtained in this study are: the definition of the notions “person's life” and “person’s health”, nominating the fundamental social quality protected against the offence of murder; the establishing of the start and end time of the penal defense of the person's life; the characterization of action and inaction approaches in murder cases; the identification of the circumstances which denote the manifestation of intention in the case of another person's life deprivation; setting the delimitation criteria of murder from some concurrent offences etc.

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ASPECTE GENERALE PRIVIND NECONSTITUTIONALITATEA LEGII NR. 329/2009

Author(s): Daniel Hageanu / Language(s): Romanian Issue: Special /2010

The paper aims at highlighting that the stipulations of the Chapter IV in Law no. 329/2009 break a series of constitutional stipulations and also international documents that Romania has ratified and which are part of the domestic law.

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GARANTAREA DREPTULUI INCULPATULUI DE A FI PREZENT LA JUDECAREA CAUZELOR PENALE

Author(s): Dinu Lazarescu / Language(s): Romanian Issue: Special /2010

The right of the defendant to be present at the judgement of penal trials is a very important issue, seen through the effects that this presence has on the unfolding of the criminal trial. Our purpose was to emphasize oh the juridical consequences that are produced by the presence of the accused to the penal trials.

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CONSIDERATII GENERALE PRIVIND ADOPTIA

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

The adoption is a measure of child rights protection and is made only to protect the interests of the child. The adoption has an important social and family role, contributing not only to the taking over the society's responsibility in raising, educating and training the children without parental care, but also to the establishment of an atmosphere of happiness, love and understanding, similar to that provided by the natural family life. Adoption offers to children the possibility of a permanent family. European Convention on the Adoption of Children, ratified in Romania by Law no. 15/1993 stipulates that adoption is made in the interest of the child (art. 8 par. 1) and the Convention on child protection and cooperation on international adoption ratified in Romania by Law no. 84/1994 provides that the adoption is completed in the best interests of the child (art. 1 letter. A). Based on these international regulations we can say that there are two kinds of interests of the child, but the best interest of the child is not expressly provided in the interests of the child and what differentiates it from the child's interest. The best interest of the child lies in the fact that adoption should ensure the harmonious development of the child and the observance of the fundamental rights that they were conferred, while the child's interest is the superior finality of adoption. Regarding the purpose for which the adoption is consented, the case law established that the adoption is in the interest of the adopted, and in accordance with art. 20 of the Convention on the Rights of the Child, adopted by UN General Assembly on 20 November 1990 (ratified by Law no. 18/1990), any child who is temporarily or permanently deprived of his familiar environment, or who for their best interest, cannot be left in this environment, is entitled to protection and to special aid from the state which can be granted, among others, as adoption.

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POLITICI DE PREVENIRE SI RESOCIALIZARE A MINORILOR DELINCVENTI IN DOCUMENTE INTERNATIONALE

Author(s): Ramona Acsinte / Language(s): Romanian Issue: Special /2010

The issue of criminal liability of the juvenile offender as well as the prevention and combating of juvenile delinquency have been and continue to represent an actuality in the criminal policy in modern states. It is presumed that the child needs special treatment in terms of criminal liability since he does not possess the correct representation of what his procedural rights and obligations provided by law are.At present the principles which govern the global process of reform in the field of juvenile delinquency areabsolute priority of prevention, the necessity of the involvement of the community in criminal liability, and the proportionality of penalty with the status of minor and the seriousness of the crime committed. The penalties applicable to minors although different in nature, limits and method of implementation, appear to be less suitable for achieving the purpose of criminal law in relation to juvenile offenders. Moreover, the sentence in a prison may affect the fragile psyche of the child due to harsh prison regime and the negative influence of other convicted. Prisons and places of detention in general are known as real “ universities of crime”. Such a measure, which avoids placing juveniles in the prison environment and allows them to receive services in the community, enables children to maintain positive ties with their families, school and community, thus increasing the chances of re-socialization and reducing possible trauma resulting from the execution of the sentence in a closed environment. Reintegration is the established purpose of juvenile justice in general. In conclusion we may say that juvenile offenders cannot be isolated from society, in order to prepare them for the realities of social life.

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EFECTELE EVAZIUNII FISCALE

Author(s): Eusebiu Neculai Aniţei / Language(s): Romanian Issue: Special /2010

Tax evasion was first regulated after 1989 by the Law no. 87/1994, which was subsequently abrogated, while the Law no. 241/2005 for the prevention and the fight against tax evasion came into force on 27th August, 2005 and it was published in the Official Gazette, Part I, no. 672 of 27..07.2005. The paper intends to illustrate how tax evasion is defined, the tax evasion means, its causes and the measures used in our country to fight against tax evasion.

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CONSIDERATII CU PRIVIRE LA CONSECINTELE JURIDICE ALE IMPOSIBILITATII VALIDARII PARTIALE A OFERTEI REALE DE PLATA URMATA DE CONSEMNAREA PRETULUI

Author(s): Larisa Demeter,Dan Drugă / Language(s): Romanian Issue: Special /2010

The Governement Ordinance n. 40/1999 has established a right of preemtion in lodger’s favour and the possibility to subrogate himself in buyer position by paying the sale’s price if the owner whom have been restored the real estate ilegally confiscated by the state has been estraged ignoring lodger’s right of preemtion. The same law indicates the means of protection of this right by using the real offer of payement follewed by CEC with the subrogation in the rights of the buyer. The ordinance provisions do not cover the case full practice of selling real estate by tenant housing when right exists only for part of it. Regulated can not exercise the right of first refusal for a part of the building, as there is no legal provision preventing the exercise of this right for the entire property. On the other hand, the express provisions of the Civil Code (Art. 1114-1115) on the actual offer followed by CEC prohibit partial validation of tender offer by stating that real „to be made for the entire amount due”.

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