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The authors present another opinion on the subject regulated by Article 132 of the Law No 78/2000, arguing that it constitutes a special legal aggravating circumstance for the offences of abuse of office and usurpation of the function provided by Article 297 and Article 300 of the Criminal Code. In the current regulation the abuse of office provided by Article 297 of the Criminal Code by reference to Article 132 of the Law No 78/2000 is not a criminal offence assimilated to corruption offences and, consequently, may not fall within the competence of the NAD unless the damage caused exceeds the ROL equivalent of one million euros. Drawing attention to the fact that the provisions of Article 132 of the Law No 78/2000 are not precise, predictable, they bring arguments in support of the thesis of the susceptibility of unconstitutionality thereof. -
The issue of the correct determination of the moment when it begins to run the time limit for declaring the contestation for the prosecutor against the interlocutory judgments by which the judge orders the rejection of the proposal of preventive arrest or of house arrest, the revocation of the preventive measure or the replacement of the preventive measure with a slighter measure has a particular importance given that it will also mark the moment when this processual right of the prosecutor will cease, under the terms of Article 268 of the Criminal Procedure Code. As we will show in the arguments offered in our paper, the criminal processual provisions do not provide for a distinction as to the moment when the time limit for declaring the contestation begins to run as the prosecutor or the processual subjects were present or absent when the judgment was pronounced, but provide expressis verbis such a distinction between the prosecutor and the processual subjects in this respect, the only rigorously correct interpretation is the one showing that, always in the matter of preventive measures, the time limit for declaring the contestation begins to run from the pronouncement of the judgment in relation to the prosecutor, whether or not he was present at the time of pronouncement.
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The offence of international illicit trafficking in risk drugs is provided in Article 3 (1) of the Law No 143/2000 on preventing and combating illicit drug trafficking and consumption, and, following the amendment brought by the Law No 187/2012 for the implementation of the new Criminal Code, is currently punished by imprisonment from 3 to 10 years and the interdiction to exercise some rights. Prior to the amendment, the punishment was imprisonment from 10 to 20 years and the interdiction to exercise certain rights.
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The dilemma on the bicameralism or unicameralism of the EC/EU legislator has existed for a long time. Not a few times, given the name of Parliament, operating with relative similarities regarding the states as subjects of international law, it was considered that it was and remained the legislature of the EC/EU. Over time, primary law and practice were likely to clarify things. Thus, at the beginnings of the Community construction, the Council acted as genuine supreme legislator, which had been gradually joined, as an institution of political control, consultation, cooperation and co-decision, by the European Parliament, so that currently the two institutions are equally involved in the legislative process of a two-chamber system.
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The relationship between the constitutional norms and the European Union law is interpreted differently, as there are several doctrinal conceptions and different case law solutions. A trend of thought affirms the supremacy of the Constitution, including over the European Union law, even though it accepts the priority of application of the latter, in its binding rules, over all the other rules of domestic law, and other trend affirms the priority of the unconditional application of all the provisions of the European Union law over all the norms of the domestic law, including over the constitutional norms. There are European constitutional jurisdictions which have established that they have the competence to conduct the control over the constitutionality of the European Union law, integrated into the domestic legal order, by virtue of the principle of supremacy of the Basic Law. In this study we analyze the interferences between the principle of priority of the European Union law and the principle of supremacy of the Constitution with reference to the doctrine and the relevant case law in the matter. Key words: principle of priority of the European Union law; principle of supremacy of the Constitution; obligativity of the legal norms of the European Union; control of the constitutionality of the legal acts of the European Union integrated into the domestic law; compliance of the domestic law with the European Union law. -
One of the forms under which it is presented the right of joint ownership on forced quota-shares is represented, in the conception of the legislator that has created the current Civil Code, also by the periodic ownership. Placing this form of joint ownership within the joint ownership on forced quota-shares is the creation of the legislator, but it is not sheltered from criticism. Among the issues raised by the regulation of the periodic ownership in Articles 687–691 of the Civil Code is also the obligation of compensation and the exclusion, legal provisions upon which the authors of this study have insisted. The provisions of Article 691 of the Civil Code are criticizable both in the way they are formulated and in respect of the effects that the legislator has pursued.
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In essence, the expropriation procedure goes through two stages, the administrative stage and the judicial stage, the common law in the matter being represented by the Law No 33/1994, as amended and supplemented. The litigation procedure is criticizable however, in many aspects, for the lack of transparency and of access to data, from the perspective of the holder of the restricted real right. Thus, although in the preamble of this normative act it is affirmed the necessity of equalizing the right of private ownership with the public interest, the latter has priority in many of the situations that have arisen in practice.
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The recent case law of the Romanian Constitutional Court gives shape to a new doctrine regarding the Court’s role in ensuring the national legislator’s compliance with the European Union’s competences. In order to identify the new doctrine’s background, the current article analyzes the evolution of the Romanian constitutional case law on the application of Union law. Subsequently, the current position of the Constitutional Court is extensively described, emphasizing both its immediate consequences and possible future developments.
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In this study, the author makes an analysis on the right to life, with emphasis on the moment when the right to life begins to flow, including from the phase of conception of human life, by reference to the case law of the European Court of Human Rights and of other courts outside the European Union, following that, in the final part of the study, an analysis be made on the current criminal provisions protecting the right to life in its incipient phase and the compliance of these provisions with the standard required by the Convention.
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This study deals with the mediation in the criminal side of the trial. The legislator has limited the scope of application of the mediation in the criminal side of the trial to the offences in respect of which the criminal action is set in motion upon the prior complaint of the injured party and is extinguished by the withdrawal of the prior complaint, on the one hand, and to the offences in respect of which the criminal action, although set in motion ex officio, is extinguished by the reconciliation between the injured party and the perpetrator. The mediation procedure in the criminal side of the trial is marked by three stages: the pre-mediation stage, the stage of actual mediation and the stage of closing the mediation. The pre-mediation stage is marked by an initial moment, when the conflicting parties present themselves to the mediator, and by a final moment, when mediation is either accepted or refused. The stage of actual mediation takes place in the form of some mediation sessions and it concentrates the most important activity of the mediation procedure. After the mediation takes place, the procedure is closed by concluding an agreement between the parties as a result of the settlement of the conflict, by the mediator’s finding of the mediation failure or by the submission of the mediation contract by one of the parties. Within the mediation in the criminal side of the trial, three legal acts are drawn up: the mediation contract, the minutes of closing the mediation and the mediation agreement. The mediation contract ends at the final moment of the preliminary stage of the procedure, when the conflicting parties appear before the mediator. Upon closing the mediation procedure, the mediator draws up a minutes. It is mandatory to draw up the minutes, regardless of the modality by which the mediation procedure is closed. If the mediation is closed by settling the conflict between the parties, the minutes of closing the mediation procedure is doubled by a mediation agreement. In criminal matters, the mediation agreement in writing is mandatory.
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The study is grounded on the thesis according to which the contestation against execution aimed at reducing the punishment imposed on the convicted person under the special cause of reducing the punishment provided in Article 19 of the Law No 682/2002 on the protection of witnesses is inadmissible.
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The independency or autonomy of public servants in construing and applying the law is warranted by the Constitution or by law. By virtue of the independency or autonomy, public servants construe and apply the law according to the own beliefs, being entitled to reject any interference from authorities or persons. Errors of public servants in the process of construing and applying the law can result in their non-criminal legal liability, if the conditions of such legal liability are fulfilled, as the case may be, civil tort or contract, disciplinary, material, taxation or contravention liability, in no case criminal liability for the offence of abuse of office provided by Article 297 (1) of the Criminal law.
