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1. ALEXE, IRINA – Aspecte privind mobilitatea înalților funcționari publici reflectate de jurisprudenþa instanțelor din România, în „Revista de drept public” nr. 1-2/2012, p. 90-102. Autoarea, în urma analizei reglementãrilor în vigoare și a jurisprudenței în domeniu, face urmãtoarea propunere de lege ferenda: se apreciazã ca fiind judicioasã introducerea formulãrii “principiul mobilitãții”, cu consecințele de rigoare, în primul rând aceea de a stabili un cadru programat întemeiat pe criterii clare și coerente în aplicarea principiului mobilitãții. -
Drept penal și procesual penal CERERE PRIVIND SESIZAREA CURȚII DE JUSTIȚIE A UNIUNII EUROPENE PENTRU PRONUNȚAREA UNEI HOTÃRÂRI PRELIMINARE. INADMISIBILITATE. În conformitate cu dispozițiile art. 267 paragr. 1 lit. a) si b) din Tratatul privind funcționarea Uniunii Europene, Curtea de Justiție a Uniunii Europene este competentã sã se pronunþe, cu titlu preliminar, cu privire la: a) interpretarea tratatelor și b) validitatea și interpretarea actelor adoptate de instituțiile, organele, oficiile sau agențiile Uniunii. Prin urmare, cererea privind sesizarea Curții de Justiție a Uniunii Europene pentru pronunțarea unei hotãrâri preliminare, referitoare la interpretarea unui act al Consiliului Europei, cum este Convenția penalã privind corupþia, adoptatã la Strasbourg la 27 ianuarie 1999, iar nu a unui tratat al Uniunii Europene sau act al instituțiilor, organelor, oficiilor sau agențiilor Uniunii Europene, este inadmisibilã.
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1. Achitare nelegalã. Gradul de pericol social al unei infracțiuni. În cazul în care legea prevede, în mod expres, cã o anumitã faptã prezintã pericolul social specific unei infracțiuni, în orice condiții de comitere, instanța nu poate pronunța o soluție de achitare și de aplicare a unei sancțiuni cu caracter administrativ.
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International treaties on human rights are, in relation to the common law, the most important human rights source of international law. In terms of geography, the international treaties under the cited matter are divided into treaties with universal vocation (UN system) and regional international treaties (European regional level, Inter-American, African and so on). In this study, the author refers to the specificity of the conventional sources within the Inter-American and African system, the Arab and Islamic world and within the CIS area.
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In this article, the author examines the crime of treason by giving aid to the enemy both in terms of the current Criminal Code and in light of the new Criminal Code, pointing out, where appropriate, the main similarities and differences between the two regulations.
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In this study, the author presents first the main reasons that led to the development of the 2009 Criminal Code and the objectives pursued by its wording. Subsequently, the author presents the main novelties brought by the regulations contained in the General Part and the Special Part of the new Criminal Code. Presentation of the characteristic features and innovations introduced by the 2009 Criminal Code compared to the Criminal Code of 1969 is achieved whilst revealing both the merits and some shortcomings of the new criminal law. These explanations are accompanied by numerous examples, own ideas and suggestions to improve the texts analyzed. In a final section, the author presents, in a reasoned manner, his own conclusions drawn in relation to the study of the new Criminal Code.
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In this study, the author, whilst analyzing the legal nature of Child Protection Commissions (which are organized and operate pursuant to Law No. 272/2004 on the protection and promotion of children’s rights and the Government Decision no. 1437/2004 on the organization methodology and functioning of the Child Protection Commission), concludes that the decisions taken by such committees are not special administrative jurisdiction acts, but simply unilateral administrative acts that are adopted by a specialized body within the county council or the local council of Bucharest sectors, as appropriate. As regards attacking / challenging these decisions in court, usually, the settlement power falls on the common law courts, and not on the administrative ones.
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What seems relevant to this study highlight is the current trend of Europeanization guarantees the right to a fair trial in civil matters established by art. 6, paragraph 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms and relativization constitutional provisions to guarantee this right, from the perspective of European Court of Human Rights. With this approach, the study proposed open a complex and complete vision, but not exhaustive approach guarantees within the current right to a fair trial in civil matters. Following an outline Key – are analyzed successively three major parts of the study, namely, 1. Identification of universal standards and regulations contained in the European human rights and, of Romanian constitutional and legal regulations on the right to a fair trial in civil matters. 2. Doctrinal guidelines on the requirements of the right to a fair trial in civil matters. 3. Jurisprudential guidelines on the requirements of the right to a fair trial in civil matters.
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Legislative changes occurring in recent years in terms of the legal nature of the public procurement contracts were subject to doctrinal debate and generated disputed solutions in the judicial practice. We refer to the definition of public procurement contract as a Commercial Agreement, under Law no. 278/2010 which has amended and supplemented the Government Emergency Ordinance no. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts, approved with amendments and supplements by Law No. 337/2006, as subsequently amended and completed. This legislative approach has shown legislator’s inconsistency in the matter, considering that by organic law - the Law of the contentious administrative No. 554/2004 – public procurement contracts are expressly defined as administrative contracts. At the end of July 2012, the National Authority for Regulating and Monitoring Public Procurement has published a draft emergency ordinance designed to bring new amendments and supplements to the Government Emergency Ordinance No. 34/2006. These proposals were successively amended by the issuer, the final form been approved through the Government Emergency Ordinance No. 77/2012. From the point of view of this study, the legislative changes contained in the Government Emergency Ordinance No. 77/2012 regarding the legal nature of the public procurement contracts and, consequently, the courts competent to hear disputes under these contracts are remarkable.
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In this study, the author makes an analysis on art. 45 to 46 of the Romanian Labor Code (Law no. 53/2003, republished on 18 May 2011) on the legal institution of posting. In this respect, the paper examines a number of controversies of the legal literature in this matter, after which the author, motivated, exposes his own opinion.
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Currently, the law governing the criminal clause institution are laid down in Articles 1538 to 1543 of the new Civil Code. What holds the special interest of the legal literature, and, in particular, that of practitioners, is the court’s possibility to reduce the criminal clause where the principal obligation has been executed by the debtor (creditor’s advantage) and where the penalty is clearly excessive in relation to the damage that could have been set out by the parties upon the contract conclusion. This study presents the legal, doctrinal and jurisprudential evolution of criminal clause reducibility.
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In this article, the author examines the provisions of the new Criminal Code relating to the definition of railway accident, achieving a comparative examination of the current provisions. This paper is a continuation of other research in this area conducted by the author, activities which have resulted in the publication of a monograph and several articles in professional journals. Research results consist of a comparative examination of current and new provisions within the above-mentioned scope, and critical remarks. Research may be useful to theorists and practitioners in the field, especially the legislator, where the latter considers necessary to amend and supplement the definition of railway accidents. The major contribution of the article lies in author’s critical remarks, the de lege ferenda proposals concerning the definition of railway accidents, and in the need to provide another aggravated variant of offenses against railway traffic safety.
