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Puțini sunt termenii din vocabularul științelor politice care să fi primit atât de multe definiții și caracterizări, de-a lungul timpului, cum este democrația. Fragmentul din Declarația Universală a Democrației pe care vi-l propun reflecției surprinde două aspecte ale termenului de democrație: unul instituțional, raportat la constituirea prin proceduri electorale democratice a instituțiilor reprezentative ale unui stat, la nivel național și local, și altul funcțional, raportat la puterea reală a poporului și mijloacele eficiente de care acesta poate dispune pentru a contribui, desigur, prin reprezentare, la activitatea legislativă și de control asupra acțiunilor Guvernului. Dacă primul aspect este relativ ușor de realizat, deși cunoașteți dovedite fraude electorale la nivel central și local, cel de-al doilea merită o atenție mai specială, întrucât nu cred că există un cetățean-alegător, grupuri de cetățeni-alegători, care să fie pe deplin convinși că sunt reprezentați, în mod real, în activitatea legislativă și, mai ales, în exercitarea funcției Parlamentului de control parlamentar. -
The study brings to attention the distinction, but also the relation between the operation of trust and the contract of trust, as a means of achieving an autonomous patrimonial property with character of destination. After analyzing the substantive, form, content and registration requirements of the contract, as well as the opposability of the assets in the trust property, the study focuses on the significance of the acceptance of the contract of trust by its beneficiary, as well as the acceptance mechanism, when one of the contracting parties is beneficiary. In the analysis of the prerogatives of the trustee’s property right as an effect of the contract, it is emphasized that this right is limited by the achievement of the purpose of the trust, found in the contract clauses and the duration of the contract, after which the trust property is subject to retrocession. The study tends to mark the distinction between the mandatary, term used or suggested by the regulation, and the position of the trustee in the configuration of the contract of trust, given that it concludes legal acts in the interest of the beneficiary and with an impact on the trust property. In regard to the trustee’s obligation to return the trust property at the expiration of the term or the achievement of the purpose of the trust, it is analyzed the distinction between this legal obligation of the trustee and the sale contract with repurchase agreement. The study also focuses on the acts of disposition that the trustee can make on the basis of a proxy, in the process of exploiting the trust property, stating that this right can be exercised only on the components of this property, individually or as a whole, and not on the trust property, which must remain intact, as a fraction of a universality.
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The object of the contract 1 represents an essential substantive condition and validity of the contract and is a subject disputed in doctrine. The doctrinal dispute regarding the definition of the object of the contract generally has its origin in the polysemantic character of the term „object” 2 . Starting from the provisions of Article 962 of the Civil Code of 1864, the legal doctrine 3 has limited the object of the contract to the conduct of the parties established in that contract, to the action or inaction to which they are entitled or by which they are bound. In another opinion 4 it was mentioned that the object of the contract consists in the object of the obligations generated by it, i.e. in the service or services concerning the transmission of a right and a positive or negative fact of the debtor, as well as in the object of these services. The relation of determination between the object of the contract and the object of the obligation follows from the fact that all the characteristics of the latter have their origin in the nature of the object of the contract. In this sense, the current Civil Code removes the inaccuracy of the old Civil Code, which, in Article 964, confused the object of the contract with the object of the obligation. Thus, Article 1225 (1) of the current Civil Code provides that „The object of the contract is the legal operation, such as sale, lease, loan and others similar, agreed by the parties, as it appears from all contractual rights and obligations”. In other words, the object of the contract designates the legal operation through which an obligation is born, modified, extinguished, i.e. a legal relation, the content of which includes the rights and obligations of the parties 5 . The object of the obligation is the service to which the debtor is committed.
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The article aims to give a new interpretation of the functioning of the separation of powers principle, starting from the tango metaphor. Within it, music represents the principle (the supreme norm), dance, the gesturing of music, so the principle. The two protagonists of the dance (the man and the woman) are seen as the embodiment of the legislature and the executive. The judiciary is constituted by the dance teacher who is the main pawn in the tango logos, adapting the movements (sermo) to the music (ratio), while giving the framework in which to evolve the two protagonists who improvise starting from the principles. From the combination of music and dance, as ways of social organization, it results happiness. Against the background of a subtle harmony, the tango metaphor can account for the functioning of society, the relationship that is established between the tango partners, between them and music, between them and the dance teacher, but also between the protagonists and the public, shows how it works society as a whole.
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Recognizing the climate emergency, and officially assuming the objectives of limiting the temperature growth up to 2 ° C and carbon neutrality work as an impulse for the establishing the constitutional basis of an adequate juridical and political reaction and for the institutionalizing the State’s and public authorities’ obligation to act against climate change. The presen ce of express referrals to climate in 10 fundamental laws and the ongoing initiatives for their modification and update in the sense of „climatizing” the pertinent provisions, reflect a vigorous process of constitutionalizing of the eco-climatic issues. Until then, assimilating climate to the enveloping concept of environment allows the extensive interpretation of existing dispositions, but the consolidation of the trend and the expression of the demands of the environmental transition impose inserting express constitutional provisions, well-articulated to the juridical and constitutional system as a whole. In this context, a special part is to be played by case law that by creative interpretation of existing text, supplies the directly regulated means of expression and suggest its apparition and its meanings. Regarding the Constitution of Romania, by interpreting the existent provisions (Article 35 which recognizes the right to a healthy and ecologically balanced environment, Article 44 (7), and Article 135 (2) E and F), one can apprehend the general duty of any person, of the State, and of the public authorities, to protect and improve the environment, including climatically, the principle of non-regression and of constant progress in the field. The case law of the Constitutional Court of Romania, as well as the ECHR, is predisposed to „acclimatizing” developments, even if, for the time being, it has not had the chance to manifest itself notably in this direction. Under the impulse of international developments and of the strategic EU context (the Green Deal, the Climate Pact), more and more propositions come to life, in the sense of inscribing climate within the contents of the fundamental law.
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Guilt is that psychic attitude of the active subject, who – voluntarily committing an act provided by the criminal law, anti-juridical and imputable – is aware of the objective circumstances in which he externalizes his conduct or, although he does not have this conscience, should and could have it. Guilt is separate from the foresight of the criminal law and covers the subjective elements of the content of the crime. The structure of guilt includes two psychic processes, which are called factors thereof. The first is conscience or the intellective factor, and the second is the will or the volitional factor. The conscience deliberates on the deed and decides whether it will be committed. The will mobilizes the energy necessary for the implementation of the decision taken. The forms and modalities of guilt are defined by relating the conscience and the will to the objective circumstances. Intellectively, what relates to objective circumstances is the presence or absence of conscience. Volitionally, what relates to objective circumstances is the content of the will. Conscience can be present and objective circumstances can be represented correctly, when there is intent, direct or indirect. Conscience may be present, but objective circumstances may be misrepresented when there is premeditated guilt. Conscience may be absent when – in the presence of the obligation and of the possibility of predicting objective circumstances – there is guilt without foresight. Direct intent, indirect intent, and premeditated guilt are defined by the foresight of the objective circumstances. The direct intent is defined by pursuing the result, the indirect intent is defined by accepting the result, and the guilt with foresight is defined by rejecting the result. Guilt without foresight is defined by the failure to foresee the objective circumstances and by the obligation and the possibility to foresee them. The classification of the intent in direct and indirect is made according to the way of reporting the will to the result of the crime. The intent is direct, if the active subject pursues the result of the crime. According to the way in which the active subject prefigures the result of the crime, the direct intent has two degrees of intensity. Each degree in its turn has two stages. The active subject prefigures the result of the crime as an end in itself (the first stage of the first degree), as a necessary means to achieve another goal (the second stage of the first degree) or as an inevitable consequence (the first stage of the second degree) or very probable (the second stage of the second degree) of the manner in which the commission of the crime is conceived. The intent is indirect, if the active subject accepts the result of the crime. In case of indirect intent, two results are discussed. Indifference to the second result (which is illegal, provided by criminal law) is the essence of indirect intent. The classification of the intent into simple and qualified is made according to the existence of a special purpose or motive, expressly provided in the incrimination norm. The intent is simple, if the active subject commits the crime without pursuing a certain purpose and without being pushed by a certain motive, expressly provided in the incrimination norm. The intent is qualified, if the active subject commits the crime pursuing a certain purpose or being pushed by a certain motive, expressly provided in the incrimination norm. The qualified intent is direct when the characteristics of qualified intent and those of direct intent intertwine. The qualified intent can also be indirect, when the characteristics of the qualified intent dissociate from the characteristics of the direct intent. The qualified intent is direct, if: a certain circumstance is foreseen in the content of the crime both as a result and as a purpose or as a motive; a certain circumstance is provided in the content of the crime as a result and is prefigured by the active subject as a necessary means to achieve the special purpose or to satisfy the special motive or as an inevitable or very probable consequence of achieving the special purpose or satisfying the special motive. The qualified intent may also be indirect, if a certain circumstance is provided in the content of the crime as a result and another circumstance, different from the first, is provided as a special purpose or as a special motive and the result is not prefigured by the active subject neither for the achieving of the special purpose or for the satisfaction of the special motive, nor as an inevitable or very probable consequence of the achievement of the special purpose or of the satisfaction of the special motive. The classification of the intent into premeditated and spontaneous is made according to the mental state that the active subject has at the moment of making the decision to commit the crime, as well as the length of time between the time of making this decision and the time of its execution. The intent is premeditated, if the active subject decides to commit the crime in a state of calm and if from the moment of making the decision to commit the crime until the moment of its execution a longer time interval passes. There are two theories regarding premeditation: one objective and the other one subjective. In the objective theory it is considered that premeditation requires preparatory acts, that it is compatible with the provocation and that it is a personal circumstance, which is objectified in the content of the crime and produces the effects of a real circumstance. In the subjective theory, to which I adhere, premeditation does not require preparatory acts, is incompatible with the provocation and is a personal circumstance, which does not affect the participants. The intent is spontaneous, if the active subject decides to commit the crime in a state of over-excitement and if from the moment of making the decision to commit the crime until the moment of its execution, passes a time interval as short as possible. The intent is pure and simple, if it does not meet either the conditions of the premeditated intent, or the conditions of the spontaneous intent. The classifications of the intent highlight certain levels of danger of the active subject, which are investigated on the occasion of the individualization of the punishment. The different stages of danger of the active subject, detached from the different degrees and stages of intensity of the direct intent, impose different solutions with reference to the judicial individualization of the punishment. The danger stage of the active subject related to the indirect intent is lower than the one related to the direct intent. Qualified intent imprints a degree of danger, as a rule, greater or, exceptionally, lower of the active subject. The special purpose or motive enters into the content of the crime as a constitutive element or as an aggravating circumstantial element, as a rule, or as an attenuating circumstantial element, by exception. The premeditated intent is capitalized as an aggravating circumstantial element (in the content of the qualified murder), a general legal aggravating circumstance (pre-ordered intoxication) or an aggravating criterion of judicial individualization of the punishment. Spontaneous intent is capitalized as a legal, general (provocative) or special (killing or injuring the newborn by the mother) mitigating circumstance. Pure and simple intent is neutral from the point of view of judicial individualization.
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The abuse of petitions committed by the natural persons is the most common form of abuse of law as the elements necessary to qualify a right as being abusively exercised, namely the subjective element (bad faith) and the objective element (diversion of the right from the purpose, economic and social finality or overcoming the internal limits of the law) presuppose a conduct of the holder of the right related to his mental ability to understand the meaning of the deed, to discern between what is good or bad, legal and illegal. This study analyzes the forms of abuse of right committed by persons deprived of liberty both at the level of courts of law and at the level of the offices of supervisory judges, as well as the psychic attitude of the subject towards the possibility of realizing the right in contradiction with its destination and purpose, and towards the consequences that may represent damages to the person, society or state. Even if the persons deprived of liberty constitute a vulnerable category of persons, the recognition of the right of access to justice, to petition, as well as of the possibility to use them at any time, as an application of the constitutional principle of equality of all persons before the law, does not confer them also the right to exercise them excessively, in a word, to abuse of them.
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In this article we shall present the jurisprudence of the Court of Justice of the European Union concerning the right to entry and to stay of the third-countries nationals members of the family of the Union citizens, as it evolved from the beginning to the present day, with its incoherences and inconsistencies, but also with its advances. The Court of Justice has contributed to the European integration, through the freedom of movement, more than the political institutions of the Union (the Council, the Parliament and the Commission) , so that the new legislation adopted in this area has incorporated the jurisprudential acquis. The institution of the European citizenship, which transforms the Community and the Union into a more political organization, has also contributed to open the freedom of movement to the third-countries nationals in cases in which they couldn’t benefit of it and to transform the national legislation on immigration under the influence of the Union law as interpreted by the Court of Justice. Of course, the jurisprudence of the Court of Justice is often criticizable and, indeed, has encountered much criticism both from the part of the States and of the scholar literature for its openness to the third-countries nationals, which puts in danger the national legislations on immigration. We also gave our own opinion on the solutions of the Court, not only when we didn’t agree with them, but also when they has been criticised, in order to defend them because we considered that they are correct. As Romania is a member of the European Union, the implications of the jurisprudence in the area of the freedom of movement are of a great importance, so our study may contribute to inform the national jurisdictions in this respect.
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Cauzele conexate nr. 26581/17 și nr. 31024/17, Oddone și Pecci c. San Marino. Hotărârea din data de 17 octombrie 2019
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Reclamanții nu pot solicita în temeiul răspunderii civile delictuale daune de la un terț pentru degradări aduse imobilului în condițiile în care au cumpărat imobilul în anul 2018 prin contract de vânzare-cumpărare în formă autentică și puteau invoca răspunderea civilă contractuală pentru vicii sau pentru evicțiune. Acțiunea în răspundere civilă delictuală este o acțiune personală care aparține proprietarului imobilului de la momentul producerii faptei ilicite și potrivit art. 1707 alin. (4) C.civ. reclamanții nu au dreptul să se plângă privitor la starea construcțiilor dobândite, deoarece lucrul dobândit are exact calitățile pe care le așteptau de la el. În categoria drepturilor accesorii se pot include drepturi reale (opozabile erga omnes), cum este, spre exemplu, dreptul de servitute, care se transmite automat odată cu înstrăinarea fondului (dominant sau aservit). În ceea ce privește eventualele drepturi personale consimțite de vânzător, ca regulă generală, acestea nu se transmit la cumpărător, care este un având cauză cu titlu particular. (Curtea de Apel Craiova, Secția I civilă, Decizia nr. 223 din 16 martie 2021,www.portaljust.ro)
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Potrivit art. 246 C.pen., fapta de a îndepărta, prin constrângere sau corupere, un participant de la o licitație publică ori înțelegerea între participanți pentru a denatura prețul de adjudecare se pedepsește cu închisoarea de la unu la 5 ani. Conform art. 244 alin. (1) C.pen., inducerea în eroare a unei persoane prin prezentarea ca adevărată a unei fapte mincinoase sau ca mincinoasă a unei fapte adevărate, în scopul de a obține pentru sine sau pentru altul un folos patrimonial injust și dacă s-a pricinuit o pagubă, se pedepsește cu închisoarea de la 6 luni la 3 ani. Articolul 25 alin. (3) C.pr.pen. prevede că instanța, chiar dacă nu există constituire de parte civilă, se pronunță cu privire la desființarea totală sau parțială a unui înscris sau la restabilirea situației anterioare săvârșirii infracțiunii (cu notă parțial aprobativă).
