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As the author herself states, the purpose of this study is to identify the sources of the international law which grounds the interdiction of the „hate speech”, as well as the manner of their perception and application at European level, particularly in the case-law of the European Court of Human Rights. In this respect there are presented: the foundations of the interdiction of the „hate speech” at universal and European level; the elements analyzed in this respect by the European Court of Human Rights (reference to the context of the speech; instigation to hatred on grounds of race and religion; negativistic and revisionist speech); the regulations adopted by the Council of Europe and by the European Commission against Racism and Intolerance; the normative framework of the European Union on racism and xenophobia, and, finally, the reference of the current Romanian criminal legislation to international exigences. -
Announced in theory, present in practice, and recognized everywhere, „flexible law” is seeking its own accreditation at a doctrinal level. Covering a number of highly heterogeneous normative instruments (directives, advices, charters, codes of conduct, et al.) having as a common element the fact of being imposed not by constraint, but by the adhesion of its recipients, it manifests itself specifically in international law (as „soft law”), EU law (as a method of governance), or internal order (as a lever of achieving the functions of the state). In relation to proper law („hard law”), flexible law manifests itself either as its precursor, in the process of adoption, a companion in its enforcement, or, in certain situations, as a substitute. Knowing diverse national experiences, flexible law presents itself as a factor of simplification and improvement of the quality of legal regulations.
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In this article the author raises for discussion some theoretical and practical issues referring to the judicial control and to the judicial control on bail, preventive measures which have been regulated in this form in the new Criminal Procedure Code, focusing on how they are implemented, in order to avoid some errors or confusions related to their interpretation and application.
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In this article, the author presents the foundation of criminal substantive law of the safety measure of special confiscation, which concerns the category of goods obtained from committing criminal acts, as well as of the safety measure of extended confiscation, in both situations the analysis being focused on the assumption that the goods have been alienated by the defendant and they have ended up in the patrimony of other persons. Further on, it is made an analysis of criminal procedural law of the situation of the persons – other than the defendant – whose goods are subject to confiscation in the course of the trial. From the perspective of guaranteeing the right to a fair trial for these persons, the author detects a series of problems of interpretation or even of legislative gaps. Finally, there is a conclusive chapter of the article accompanied by de lege ferenda proposals corresponding to the criticism which the author has developed and argued by reference to the current legal texts.
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This study raises for discussion the condition of full recognition of facts and changing the legal classification within the trial procedure in case of recognition of accusation. A deed, which the defendant must recognize, means the act of conduct committed under both its sides, objective and subjective, as well as all the circumstances surrounding this act, regardless of their nature and of the moment when they occur in relation to the act itself. The defendant may contest the legal classification established by the public prosecutor and may benefit from the settlement of the case in simplified procedure only when the contestation against the legal classification is not based on a change of the state of facts.
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This paper presents a brief analysis of the problems raised by the offence of theft. The authors emphasize, on the one hand, the close connection between these problems and some errors occurred in the civil theory of possession, and, on the other hand, some shortcomings of the current definition of the offence of theft. Similarly, there are presented some possible corrections, both at theoretical level and at legislative level.
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In this study, the author, having regard to the provisions of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998, as well as to the jurisprudential situations in this matter of the Court of Justice of the European Union, in the end comes to the conclusion that, in case a Romanian citizen obtains the professional qualification in one of the Member States of EU (or of the European Economic Area or of Switzerland), other than Romania, and he wants to practise in Romania, under the professional title thus acquired, the Romanian legal regulations referring to this legal classification (in this case, of Chapter VIII of the Law No 51/1995 on the organization and practice of the profession of lawyer) will become applicable.
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Law No 78/2014 regarding the regulation of volunteering in Romania provides that a volunteer agreement can be concluded by any natural person „who has acquired capacity to work according to the legislation in the field of labour.” Whereas this phrasing is likely to generate controversies and discussions (the Law No 78/2014 being a law in the field of civil law, and not in the field of the labour law), the author examines precisely at what age minors may conclude volunteer agreements. The author’s conclusion, resulting from the corroboration of Articles 41–42 of the Civil Code with Article 13 of the Labour Code, is that: minors may conclude volunteer agreements after they turned 14, but between 14–16 years of age the consent of their parents, guardians, etc., is also required and, after the minor turned 16, he may conclude such an agreement himself, without the above-mentioned consent.
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The article analyzes the advantages which the settlement of disputes by means of arbitration has to offer. Arbitration is an exception from the principle that administration of justice is done by the courts and represents that effective legal mechanism, designed to ensure a fair, faster and less formal, confidential trial finalized by judgments subject to enforcement. Most patrimonial and non-patrimonial causes may be settled by way of arbitration, so that this method of settlement of disputes can be chosen by parties, instead of the common law justice. The conclusion that can be drawn is that, in order to relieve the courts of their role, arbitration is a viable alternative of settlement of disputes.
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In this study, the author explains the concepts of: structure of the registered capital; general pledge of the creditors; registered capital; difference between the registered capital and the patrimony of the company; difference between the registered capital and the equity capital (net assets); difference between the registered capital and the value of the company, as well as the problems of the legal regime of social contributions after payments, as all of the above follow from the Law No 31/1990 (republished) on companies.
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The Romanian Labour Code (Article 80) provides that, in case the dismissal was made groundlessly or unlawfully, the court will decide its cancellation and will order the employer to pay a compensation in cash. If the employee expressly requests it, in addition, the court will restore the parties to the situation prior to the issuance of the act of dismissal (therefore it will decide the reinstatement of the employee to the position held). If the employee does not request to be reinstated to the position held, the individual labour contract will cease de jure on the date when the judgment remains final. Whereas the regulation of the Labour Code in the matter (the reinstatement to the position held, if the employee so requests) is, in the author’s opinion, overly rigid, a series of de lege ferenda proposals are made in this study, in the sense of promoting a more pliable (flexible) solution, as regards the mandatory reinstatement to the position, if the employee so requests, in a given case.
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This article aims to analyze a wage increase for people who traditionally have a PhD title and are working in the field in which they obtained this title. Up to the adoption of the legislation on uniform remuneration in budgetary system, all those who had obtained a PhD title received, without distinction, a wage increase for PhD. The current legislation has provided the inclusion of this increase, as a transitional compensatory amount, in the base salary, the basic pay/salary or monthly allowance, for the employees that had it to be paid on 31 December 2009, but not for those who have won the PhD title after this date. That legislation created a discriminatory situation, on which the National Council for Combating Discrimination was notified, and this has expressed a specialised opinion, which advocated for the competent authorities of the State, Parliament and the Government to proceed to eliminate the difference in legal treatment, so additional salary entitlement to be recognized by the legislature to all employees, regardless of the date on which it was awarded a PhD title. To this end we propose the appropriate modification of the law.
