CONFERINȚĂ NAȚIONALĂ CU OCAZIA ZILELOR UNIVERSITĂȚII ALEXANDRU IOAN CUZA DIN IAȘI OCTOMBRIE 2016 DREPTUL ŞI JUSTIŢIA ÎNTR-O EPOCĂ A PROVOCĂRILOR

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3 CONFERINȚĂ NAȚIONALĂ CU OCAZIA ZILELOR UNIVERSITĂȚII ALEXANDRU IOAN CUZA DIN IAȘI OCTOMBRIE 2016 DREPTUL ŞI JUSTIŢIA ÎNTR-O EPOCĂ A PROVOCĂRILOR

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5 Comitetul de organizare a Conferinței Profesor dr. Tudorel TOADER, Rectorul Universității Alexandru Ioan Cuza din Iași Lector dr. Vasile Septimiu PANAINTE, Decanul Facultății de Drept Profesor dr. Carmen Tamara UNGUREANU Conferențiar dr. Ioana Maria COSTEA Conferențiar dr. Marius Nicolae BALAN Lector dr. Răzvan Horaţiu RADU Lector dr. Maria Ioana MĂRCULESCU-MICHINICI Adresa de contact Universitatea Alexandru Ioan Cuza din Iași Facultatea de Drept Iași, b-dul Carol I, nr anale.drept@uaic.ro Prezentul volum cuprinde rezumatele articolelor prezentate în cadrul Conferinței, ce vor publicate integral în Analele Universității Alexandru Ioan Cuza din Iași. Seria Științe juridice. ISSN: , ISSN (on-line) , ISSN-L

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7 Științe penale - Transformări legislative şi adaptări jurisprudenţiale în științele penale Moderatori: Lector dr. Ioana Maria Mărculescu-Michinici & Lector dr. Mihai Dunea Titlurile comunicărilor: 1. Profesor dr. Tudorel Toader, Marieta Safta, The evolution of criminal law through the constitutional review/ Evoluția dreptului penal prin controlul de constituționalitate 2. Lector dr. Maria Ioana Marculescu-Michinici, Legal transformations and jurisprudential adjustments regarding the (criminal) attempt/ Transformări legislative și adaptări jurisprudențiale cu privire la tentativă 3. Lector dr. Mihai Dunea, About the notion, the forms and the contents of the concept of "criminal legal report"/ Despre noțiunea, formele și conținutul conceptului de raport juridic penal 4. Conferențiar dr. Augustina Bolocan-Holban, Conferențiar dr. Mihaela Vidaicu, Tendencies in the penal policy of the Republic of Moldova/ Tendințele politicii penale în Republica Moldova 5. Lector dr. Rodica Burdușel, About the release solution for the food theft infraction/ Despre soluția de achitare pentru infracțiunea de furt de alimente 6. Lector dr. Gheorghe-Iulian Ioniță, Comments on the amendments of the texts stipulating the criminalization of deeds against intellectual property/ Observații referitoare la modificările textelor de incriminare a faptelor la regimul proprietății intelectuale 7. Conferențiar dr. Dorin Nastas, Implicit theories of the human being in law and psychology: similarities, differences, and emerging convergences/ Teorii implicite asupra ființei umane în drept si psihologie: similarități, diferențe și convergențe emergente 8. Asistent dr. Ancuța Elena Franț, Provocări contemporane privind utilizarea expertizei în procesul penal/ Contemporary issues regarding the use of expertise in criminal cases 7

8 9. Asistent dr. Anda Crișu-Cicîntă, The protection of the right to live in the regulations of the Criminal Code/ Protecția dreptului la viață în reglementarea Codului Penal 10. Doctorand Alexandru Porof, Considerations on the magistrate s liability in point of committing abuse of office/ Considerații asupra răspunderii magistratului sub aspectul săvârșirii infracțiunii de abuz în serviciu 11. Consilier juridic, Vasile Rusu, Considerations on the legislative aspects governing medical staff s liability. Mediation in medical malpractice cases 8

9 THE EVOLUTION OF CRIMINAL LAW THROUGH THE CONSTITUTIONAL REVIEW EVOLUȚIA DREPTULUI PENAL PRIN CONTROLUL DE CONSTITUȚIONALITATE TUDOREL TOADER 1 MARIETA SAFTA 2 The constitutional review ensures the compatibility of the criminal legal norms with the constitutional principles. From the perspective of the criticism raised, the decisions to reject the unconstitutionality criticism as unfounded ascertain the compatibility of the criminal legal norms with the Fundamental Law. Both the admission decision of unconstitutionality exceptions and the interpretative decisions prove the law-making process is exceeding the limits imposed by the Fundamental Law. At the same time, these decisions can determine an extension and an evolution of the criminal law, by raising the standards of protection for fundamental rights and liberties. In this study, we intend to underline the manner and limits in which the constitutional jurisdiction has been contributing to the evolution of the criminal law. Key-words: criminal law, constitutionality review, constitutionalisation, admission decisions, interpretative decisions, evolutions in criminal law. 1 Profesor univ. dr., Rectorul Universității Alexandru Ioan Cuza din Iași, ttoader@uaic.ro 2 Lector dr., Facultatea de Drept - Universitatea Titu Maiorescu din București, marieta.safta@prof.utm.ro 9

10 LEGAL TRANSFORMATIONS AND JURISPRUDENTIAL ADJUSTMENTS REGARDING THE (CRIMINAL) ATTEMPT TRANSFORMĂRI LEGISLATIVE ȘI ADAPTĂRI JURISPRUDENȚIALE CU PRIVIRE LA TENTATIVĂ MARIA IOANA MARCULESCU-MICHINICI 3 The criminal attempt - which is an atypical form of the offense is enshrined in the IV th Chapter of the II nd Title from the General Part of the current Romanian Criminal Code (articles 32 to 34). There are both similarities and differences between the way the criminal attempt was regulated in the former Romanian Criminal Code (in force since 1969, through the 1 st of February 2014), and the current provisions regarding it. Some of the issues examined in this article, which give it content, refer to matters such as: - If the normative amendments which have been made, reflect (or not) major changes of perspective, from the legislators part, regarding the criminal attempt; - Whether the legal wording adopted removes (or not) the theoretical controversies and the divergent jurisprudential solutions surrounding the criminal attempt; - Whether there are (or not) some problems regarding the application of the most favorable criminal law for the offender (the mitior lex principle), in connection to the criminal attempt. To some of the legislative solutions regarding the criminal attempt, or to some of the solutions adopted in doctrine and jurisprudence in connection to it, the author has added, also, a brief critical analysis. Key-words: criminal attempt; incrimination; sanctioning; impunity; theoretical and practical solutions. 3 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, mimichinici@yahoo.com 10

11 ABOUT THE NOTION, THE FORMS AND THE CONTENTS OF THE CONCEPT OF "CRIMINAL LEGAL REPORT" DESPRE NOȚIUNEA, FORMELE ȘI CONȚINUTUL CONCEPTULUI DE RAPORT JURIDIC PENAL MIHAI DUNEA 4 This article analyzes a basic concept of the criminal-law theory, namely the institution of criminal legal report. The concept in question is a theoretical juridical element with vocation of permanence, the objective existence of which is imposed to the legislature itself, as an institution that transcends the normative transformations and jurisprudential adjustments. The article approaches this concept, primarily, for teaching purposes, also expanding, however, some controversial issues (including the highlighting of uncorrelated visions between different scholars, experts either in the field of general theory of law, or in the field of criminal law). Regarding some of those issues, the author makes certain proposals and assumes reasoned choices. Among other aspects, the article reaches the controversial issue of the singular or plural manner in which a criminal legal report manifests itself, starting from the admission (or the lack of admission) of the existence of a cooperation (compliance) criminal legal report, apart from the generally accepted existence of a repressive (conflictual) criminal legal report. The author argues the value of truth of the solution which claims that the criminal legal report presents a dual way of manifesting itself, also making some particular and dissident remarks compared to the vision assumed by the majority of the contemporary (Romanian) criminal doctrine. Key-words: criminal legal report; types; emergence; extinction; object; subjects; field (essence). 4 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, mihai.dunea@uaic.ro 11

12 UNELE OBSERVAȚII PRIVIND SOLUȚIONAREA CAUZEI PENALE ÎN COMPLET DE DIVERGENȚĂ DANIEL ATASIEI 5 This study analyses the provisions - the very few of them - on setting up a divergence panel of judges when, at the trial stage of a criminal case, during the deliberation process and at the time of decision, a verdict cannot be reached due to the lack of unanimity or majority of opinion of the members of the court. The study observes the impact the rules of civil procedure law in this matter, elements of relevant judicial practice and particular situations arising in practice regarding this subject. Keywords: divergence panel, jurisdiction, composition of the court, voidance 5 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, e- mail:datasiei@uaic.ro 12

13 TENDENCIES IN THE PENAL POLICY OF THE REPUBLIC OF MOLDOVA TENDINȚELE POLITICII PENALE ÎN REPUBLICA MOLDOVA AUGUSTINA BOLOCAN-HOLBAN 6 MIHAELA VIDAICU 7 The penal policy of the Republic of Moldova contains elements of both restorative and retributive justice. The main directions of the penal policy which will be analyzed in this article refer to: (1) incrimination of crimes and establishment of punishments; (2) infliction of punishments; and (3) enforcement of punishments. Since the adoption of current Criminal Code in 2002, Moldovan authorities have expressed interest in the humanization of punishments. The 2008 revision process was in particular focused on reducing the minimum and maximum term of criminal punishments. Moreover, the custodial punishments were reevaluated and reduced. As a result, 80% of the Criminal Code provisions were amended. Since 2009, the Criminal Code provisions continued to be sporadically amended. In 2011, the Moldovan Parliament adopted the Justice Sector Reform Strategy ( ), which requires specific interventions for the liberalization of penal policy. However, the main amendments operated since 2012 to the Criminal Code were, on the contrary, focused on the criminalization of specific acts and increasing the punishments for specific offences. Key-words: criminal punishment, penal policy, restorative justice, incrimination, tendencies. 6 Conferențiar dr., Universitatea de Stat din Moldova, Departamentul de Drept penal, mihaela_vidaicu@yahoo.com 7 Conferențiar dr., Universitatea de Stat din Moldova, Departamentul de Drept penal 13

14 ABOUT THE RELEASE SOLUTION FOR THE FOOD THEFT INFRACTION DESPRE SOLUȚIA DE ACHITARE PENTRU INFRACȚIUNEA DE FURT DE ALIMENTE RODICA BURDUȘEL 8 The court decision for the release of a person for the food theft infraction, pronounced by an Italian court, was classified by the juridical press as a historical decision and a precedent for similar situations. The novelty of this decision raises the question: has the Italian court given a legal solution or a social response dressed in a legal coat? We will try to answer this question through the juridical, moral, social implications of the criminal law principles and protected rights. Key-words: theft, food, survival, release, precedent 8 Lector dr., Universitatea Titu Maiorescu din București, dotla2015@yahoo.com 14

15 COMMENTS ON THE AMENDMENTS OF THE TEXTS STIPULATING THE CRIMINALIZATION OF DEEDS AGAINST INTELLECTUAL PROPERTY OBSERVAȚII REFERITOARE LA MODIFICĂRILE TEXTELOR DE INCRIMINARE A FAPTELOR LA REGIMUL PROPRIETĂȚII INTELECTUALE GHEORGHE-IULIAN IONIȚĂ 9 : The amendment/change of the criminal/penal law, given the enforcement of the provisions under the Criminal Code (2009), has been generating and will generate much debate. In this study, the author identifies and highlights the core changes/amendments of the texts stipulating the criminalization of deeds against intellectual property. Key-words: Criminal Code; changes/amendments; intellectual property, copyright, industrial property rights. 9 Lector dr., Universitatea Româno-Americană, București, ionita.gheorghe.iulian@profesor.rau.ro 15

16 IMPLICIT THEORIES OF THE HUMAN BEING IN LAW AND PSYCHOLOGY: SIMILARITIES, DIFFERENCES, AND EMERGING CONVERGENCES TEORII IMPLICITE ASUPRA FIINȚEI UMANE ÎN DREPT SI PSIHOLOGIE: SIMILARITĂȚI, DIFERENȚE ȘI CONVERGENȚE EMERGENTE DORIN NASTAS 10 Nowadays evolutions of the legal doctrinal thinking, jurisprudence, legal proceedings, substantive law and overall law use are inevitably and largely marked by a constant contact with the influence, and even change pressures from all kinds of scientific disciplines, including psychology. The aim of this paper is to reveal and make vividly clear the most basic assumptions about the human being that are implicit or unspeakably present as dominant, on the one hand, in law and lawyers and, on the other hand, in psychology and psychologists. Further, these models are compared for revealing their similarities and differences. Finally, practical suggestions regarding both acknowledging and respecting differences and seeking ways for bridging law and psychology, and lawyers and psychologists, are proposed and discussed. Key-words: implicit theories, legal psychology, law and psychology, epistemic believes, implicit values 10 Conferențiar dr., Universitatea Alexandru Ioan Cuza din Iași, Departamentul de psihologie, nastas.dorin.iasi.university@gmail.com 16

17 CONTEMPORARY ISSUES REGARDING THE USE OF EXPERTISE IN CRIMINAL CASES PROVOCĂRI CONTEMPORANE PRIVIND UTILIZAREA EXPERTIZEI ÎN PROCESUL PENAL ANCUȚA ELENA FRANȚ 11 This paper aims to reveal some issues in the use of expertise in present-day criminal cases. For instance, one of these issues regards the possibility for the parties to get involved in the forensic activity performed by the expert and the amplitude of such an involvement. Another issue consists in understanding the necessity that the forensic laboratories require a form of accreditation. The answer may be found out by comparing the results obtained by different forensic scientists, of whom some had and some didn t have special accreditation. Overall, the paper emphasizes the idea that a better regulation of the use of expertise means an additional support in finding the truth in criminal cases. Key-words: expertise, criminal procedure, forensic science, judicial truth. 11 Asistent dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, e- mail: anca_frantz@yahoo.com 17

18 THE PROTECTION OF THE RIGHT TO LIVE IN THE REGULATIONS OF THE CRIMINAL CODE PROTECȚIA DREPTULUI LA VIAȚĂ ÎN REGLEMENTAREA CODULUI PENAL ANDA CRIȘU-CIOCÎNTĂ 12 In accordance with the Criminal Code of 1969, the moment when the human being was acknowledged the right to live corresponded with the birth itself, and it was also the moment when the fundamental right to live started to be protected by the criminal law. The current criminal code has a different approach to the protection of the right to live by acknowledging the right to live for the foetus during the pregnancy or during the birth labour. The very issue proposed for debates in the current material is whether, in the conception of the current criminal legislator, it is possible to talk about the right to live even before the birth. The offence called "the bodily prejudice of the foetus" is significant from the perspective of the criminal protection of the right to live even before the birth. This offence is stipulated by Article 202, Criminal Code, an incrimination that has a novelty character as it was introduced into the national criminal legislation when the current Criminal Code entered into force. The attempt at finding an answer to the question "Does the criminal legislator acknowledge the right to live before the birth?" also involves the analysis of the contents of the incrimination called marginally "the bodily prejudice of the foetus". Key-words: the right to live, criminal protection, foetus, pregnancy, birth labour. 12 Asistent drd., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, anda_ciocinta@yahoo.com 18

19 CONSIDERATIONS ON THE MAGISTRATE S LIABILITY IN POINT OF COMMITTING ABUSE OF OFFICE CONSIDERAȚII ASUPRA RĂSPUNDERII MAGISTRATULUI SUB ASPECTUL SĂVÂRȘIRII INFRACȚIUNII DE ABUZ ÎN SERVICIU ALEXANDRU POROF 13 Abuse of office is set to rights both by the Penal Code and Law no. 78/2000. Both the judicial practice and the judicial literature of specialty have stated that abuse of office has a subsidiary character. Subject to abuse of office can also be a judge or a prosecutor, according to art. 175 line (1) a) Penal Code. On what concerns the fulfillment of the subject s attributes as a judge or prosecutor, the judicial practice has brought a set of gradations. As for what concerns us, we appreciate that the penal liability of a judge or prosecutor can be retained under the aspect of committing abuse of office only when the magistrate breaks with direct or indirect intention the material or procedural norms suited for the cause that he/she investigates or judges. At the same time, we consider that the penal liability of a magistrate cannot be engaged under the aspect of committing abuse of office for the solutions adopted or instrumented. It can be brought to question if a judge or a prosecutor will be charged both criminally for committing abuse of office and disciplinary under the aspect of committing the disciplinary violation provided by art. 99 lit. t) from Law no. 303/2004, republished with additions, regarding the status of judges and attorneys, for the same cause. We opine that the answer to this issue is a negative one, in the sense that there cannot exist a contest between committing abuse of office and a disciplinary violation. The distinction between the two forms of liability, from our point of view, should be made based on the immediate consequence of the deed. Key-words: judge, prosecutor, criminal liability, disciplinary liability. 13 Doctorand, Universitatea Titu Maiorescu din București, Facultatea de Drept, alexporof18@yahoo.co.uk 19

20 CONSIDERATIONS ON THE LEGISLATIVE ASPECTS GOVERNING MEDICAL STAFF S LIABILITY. MEDIATION IN MEDICAL MALPRACTICE CASES : VASILE RUSU 14 This article aims to emphasize the practical aspects of the medical staff s legal liability in light of the framework law, namely Law 95/2006 on health reform, as well as the specific aspects of the mediation procedure as a way of solving medical malpractice cases. This study, generically, analyses the forms of legal liability of medical staff and a number of practical issues the author of the study has encountered as mediator. Key-words: forms of legal liability, medical staff, malpractice cases, mediation 14 Consilier juridic, Direcția de Sănătate Publică Iași, rusuvas_is@yahoo.com 20

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22 Drept privat - Stabilitate şi reformă în dreptul privat Moderatori: Lector dr. Vasile Septimiu PANAINTE & Lector dr. Nicolae Horia ȚIȚ Titlurile comunicărilor: 1. Profesor dr. Carmen Tamara Ungureanu, International investment contract: state contract/ Contractul internațional de investiții: contractul de stat 2. Profesor dr. Gheorghe Durac, Policies and legislative strategies on preventing and combating climate changes/ Politici și strategii legislative privind prevenirea și combaterea schimbărilor climaterice 3. Conferențiar dr. Lucia Irinescu, Theoretical and practical aspects concerning parental authority / Aspecte teoretice şi practice privind exercitarea autorităţii părinteşti 4. Conferențiar dr. Maria Dumitru,,,The main obligation,, reference for reducing the manifestly excessive penalty clause /,,Obligația principală,, - reper al reducerii penalității vădit excesive 5. Conferențiar dr. Dorin Cimil, Legal valence of civil contracts classification/ Valenţa juridică a clasificării contractelor civile 6. Conferențiar dr. Veaceslav Pînzari, Views on effects regulation of the declaration of invalidity/nullity of marriage concerning the relationships between people who have been married/ Opinii cu privire la reglementarea efectelor declarării nulităţii căsătoriei ce vizează relaţiile dintre persoanele care au fost căsătorite 7. Lector dr. Vasile Septimiu Panainte, Revocation of the dismissal decision in the light of hccj decision no. 18/2016/ Revocarea deciziei de concediere în lumina deciziei îccj nr. 18/2016 (CDCD) 8. Lector dr. Codrin Macovei, War and/or peace: creditors versus heirs in the New Civil Code - Război și/sau pace: creditori versus moștenitori în Noul Cod Civil 9. Lector dr. Nicolae Horia Țiț, Practical implications regarding the enforcement procedure of the entry into force of the Emergency Ordonnance 22

23 no. 52/2016 regarding credit agreements offered to consumers for immovable goods and also for the modifying and amending Emergency Ordonnance no. 50/2010 regarding credit agreements for consumers / Implicații practice cu privire la procedura de executare silită ale intrării în vigoare a Ordonanței de Urgență nr. 52/2016 privind contractele de credit oferite consumatorilor pentru bunuri imobile, precum și pentru modificarea și completarea Ordonanței de Urgență a guvernului nr. 50/2010 privind contractele de credit pentru consumatori 10. Lector dr. Olga Andreea Urda, The dissolution of companies regulated by Law no. 31/1990. Cases of sanction dissolution. Theoretical and practical aspects / Dizolvarea societăților reglementate de Legea nr. 31/1990. Cazurile de dizolvare sancțiune. Aspecte teoretice și practice 11. Asistent dr. Luiza Cristina Gavrilescu, Some issues concerning the validity conditions of the object of the civil juristic act / Unele aspecte privind cerințele de valabilitate ale obiectului actului juridic civil 12. Doctorand Iulia Alexandra Boșneanu, Extinguishment of the lien right considering the New Civil Code/ Stingerea dreptului de retenție în lumina Noului Cod Civil 13. Doctorand Tudor-Vlad Rădulescu, Considerații cu privire la eficacitatea clauzei compromisorii inserată într-un act juridic simulat 14. Doctorand Ionuț Tudor, Clarifications on the concept of moral damages / Clarificări cu privire la conceptul daune morale 15. Avocat Laura Leonte, Hyperlinking through CJEU lens to the 2016 copyright reform the heat is on 23

24 INTERNATIONAL INVESTMENT CONTRACT: STATE CONTRACT CONTRACTUL INTERNAȚIONAL DE INVESTIȚII: CONTRACTUL DE STAT CARMEN TAMARA UNGUREANU 15 International investment contract, as the state contract, a subject little explored in the legal literature in Romania, although of great interest, is analyzed in its essential aspects: concept, nature of the contract, its regulation in domestic law and in bilateral and international instruments, categories of international investment contracts, applicable law and disputes resolution concerning this type of contract. Key-words: international investment contract, state contract, elements 15 Profesor dr. Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, e- mail: carment_ungureanu@yahoo.com 24

25 POLICIES AND LEGISLATIVE STRATEGIES ON PREVENTING AND COMBATING CLIMATE CHANGES POLITICI ȘI STRATEGII LEGISLATIVE PRIVIND PREVENIREA ȘI COMBATEREA SCHIMBĂRILOR CLIMATERICE GHEORGHE DURAC 16 Environmental issues arising nowadays led to a greater responsibility in approaching specific actions for climate changes, which imposed the adoption of new policies and legislative strategies at national, European and international levels. In the current circumstances, the complex and global climate change requires a broad and consistent cooperative action between states and international organizations, aiming at the adoption of a stringent and effective environmental legislation for the protection of the environment, specifically of the atmosphere. The legislative framework that we talk about should include measures to reduce the greenhouse gas emissions, aims among which we mention: a consumption based on cleaner energy; ecological means of transport; new urbanism policies; ecological agriculture. Key-words: climate changes, environmental policies and strategies, environmental legislation, protection of the environment. 16 Profesor dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, e- mail: gheorghe.durac@uaic.ro 25

26 THEORETICAL AND PRACTICAL ASPECTS CONCERNING PARENTAL AUTHORITY ASPECTE TEORETICE ŞI PRACTICE PRIVIND EXERCITAREA AUTORITĂŢII PĂRINTEŞTI LUCIA IRINESCU 17 The article analyzes the major aspects of the relations between parents and children. The Civil Code has established the principle of shared parental authority in order to allow the parents to be partners in all important decisions relative to the life of their common children. The main problems are caused when parents have radically different vision on parental authority, especially after divorce or their separation. Key-words: minor, parental authority, higher interest of the child, principle of shared parental authority 17 Conferențiar dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, 26

27 ,,THE MAIN OBLIGATION,, REFERENCE FOR REDUCING THE MANIFESTLY EXCESSIVE PENALTY CLAUSE,,OBLIGAȚIA PRINCIPALĂ,, - REPER AL REDUCERII PENALITĂȚII VĂDIT EXCESIVE MARIA DUMITRU 18 The provisions of art (1) b) of the Romanian Civil Code gave the Court the possibility to reduce the penalty clause when it is manifestly excessive compared to the prejudice that could have been foreseen by the parties when signing the contract. The maximum limit of the Court s interference was also set: the penalty even reduced must remain superior to the main obligation under the sanction of deeming as unwritten the clause that would allow the contrary. The surprising threshold chosen by the Romanian legislator generates a great deal of difficulties in practice. Therefore, we find it appropriate that a future form of art of the Romanian Civil Code the need for which we argued several times would also refer to this matter. Deeming the contrary clause as unwritten, as indicated by art (3) of the Romanian Civil Code a new sanction in Romanian private law is part of our research as well. Key-words: penalty clause, reducing the manifestly excessive penalty clause 18 Conferențiar dr., Universitatea Petre Andrei din Iași, Facultatea de Drept, av.mariadumitru@yahoo.com 27

28 LEGAL VALENCE OF CIVIL CONTRACTS CLASSIFICATION VALENŢA JURIDICĂ A CLASIFICĂRII CONTRACTELOR CIVILE DORIN CIMIL 19 In this study we tried to render a practical content for the theoretical subject of contract classification. We managed to analyze the particular juridical effects of a certain type of contracts, depending on the specific clauses that they have embraced by the will of the parties or even the legislator. Thus, our scientific approach was oriented to the understanding of complex contractual constructions that unify under unique form elements considered to be antagonistic. The essence in finding legal recognition for complex contracts lays in the development of a clear regulatory mechanism applicable to them, from different contractual institutions, for which a uniform regulatory mechanism is already in place. Key-words: contract classification, type of contracts, complex contract, elements of various contracts, coexisting systematic criteria, constitutive contractual parts, the unique type of provision, integrated or mixed contracts. 19 Conferențiar dr., Universitatea de Stat din Moldova, Departamentul drept privat, dorincimil@gmail.com 28

29 VIEWS ON EFFECTS REGULATION OF THE DECLARATION OF INVALIDITY/NULLITY OF MARRIAGE CONCERNING THE RELATIONSHIPS BETWEEN PEOPLE WHO HAVE BEEN MARRIED OPINII CU PRIVIRE LA REGLEMENTAREA EFECTELOR DECLARĂRII NULITĂŢII CĂSĂTORIEI CE VIZEAZĂ RELAŢIILE DINTRE PERSOANELE CARE AU FOST CĂSĂTORITE : VEACESLAV PÎNZARI 20 In matters of marriage, as well as in other matters, when the expression of will is made by violating legal norms, established for its validity, the invalidity /nullity will come as a sanction, which, established by the court decision, is not directed against the legal act as such/by its very nature, but against the adverse effects of law, effects produced on the background of the tainted/corrupted act. Therefore, the legal act, sanctioned by nullity, is devoid of the legal effects for which it was concluded. In this endeavor, we shall analyze the effects (that) the nullity sanction produces on the relationships between people who have been married, whose marriage was dissolved. Key-words: marriage, nullity, non-patrimonial effects, patrimonial effects, maintenance, inheritance/legacy. 20 Conferențiar dr., Universitatea de Stat Alecu Russo din Bălți, Republica Moldova, v.m.pinzari@gmail.com 29

30 REVOCATION OF THE DISMISSAL DECISION IN THE LIGHT OF HCCJ DECISION NO. 18/2016 REVOCAREA DECIZIEI DE CONCEDIERE ÎN LUMINA DECIZIEI ÎCCJ NR. 18/2016 (CDCD) VASILE SEPTIMIU PANAINTE 21 In interpreting and implementing the provisions of art. 278 par. (1) of the Labour Code, the provisions of art. 1324, 1325 and 1326 of the Civil Code are compatible with the specific of employment relationship and can be applied to complete the Labour Code provisions. Therefore, interpreting art. 55 lit. c) and art. 77 of the Labour Code, the dismissal decision can be revoked up to the date of communication. The act of revocation is subject to the requirements of proper communication of the dismissal decision. The practical effects of the decision are abundant. The parties may use the procedure of conventional nullity. "Revocation" of the dismissal decision, as a consequence of the employee's court action, is no longer possible. In court, the employer must directly and expressly admit that the employee's claims are justified, using the provisions of art. 436 Civil Procedure Code. Keywords: dismissal decision, revocation, communication of the revoking document, conventional nullity, acceptance of employee's claims 21 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, septimiu.panainte@uaic.ro 30

31 WAR AND/OR PEACE: CREDITORS VERSUS HEIRS IN THE NEW CIVIL CODE RĂZBOI ȘI/SAU PACE: CREDITORI VERSUS MOȘTENITORI ÎN NOUL COD CIVIL CODRIN MACOVEI 22 The title of this article is probably a bit exaggerated, melodramatic, and it would be easy to qualify it as gratuitous: why compare the legal relationship between creditors and heirs to the plot of the well known novel written by L. Tolstoy? The creditors are not the army of Napoleon, the heritage is not Russia, the heirs are not the army of the czar and the Civil Code does not prepare both sides for the Battle of Borodino. On the contrary, the provisions of the new Civil Code incidental to the matter of the transmission of inheritance liabilities have a duty to create the best conditions for the payment of creditors and the entry of the heirs in the profits of the inherited assets. However, we believe that we can identify some excitement in the new regulations of the Civil Code. It is inherent in the search for a new balance in the devolution of inheritance, since the Romanian legislature has chosen to completely abandon the theory of heir understood as a continuation of the person of the deceased. Key-words: creditors, heirs, heritage, transmission of inheritance, liabilities, payment, devolution of inheritance 22 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, codrinmacovei@yahoo.com 31

32 PRACTICAL IMPLICATIONS REGARDING THE ENFORCEMENT PROCEDURE OF THE ENTRY INTO FORCE OF THE EMERGENCY ORDONNANCE NO. 52/2016 REGARDING CREDIT AGREEMENTS OFFERED TO CONSUMERS FOR IMMOVABLE GOODS AND ALSO FOR THE MODIFYING AND AMENDING EMERGENCY ORDONNANCE NO. 50/2010 REGARDING CREDIT AGREEMENTS FOR CONSUMERS IMPLICAȚII PRACTICE CU PRIVIRE LA PROCEDURA DE EXECUTARE SILITĂ ALE INTRĂRII ÎN VIGOARE A ORDONANȚEI DE URGENȚĂ NR. 52/2016 PRIVIND CONTRACTELE DE CREDIT OFERITE CONSUMATORILOR PENTRU BUNURI IMOBILE, PRECUM ȘI PENTRU MODIFICAREA ȘI COMPLETAREA ORDONANȚEI DE URGENȚĂ A GUVERNULUI NR. 50/2010 PRIVIND CONTRACTELE DE CREDIT PENTRU CONSUMATORI NICOLAE HORIA ȚIȚ 23 Emergency Ordonnance no. 52/2016 regarding credit agreements offered to consumers for immovable goods and also for the modifying and amending Emergency Ordonnance no. 50/2010 regarding credit agreements for consumers implements in the national legislation the provisions of Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010. The article analyses the possible effects of this Ordonnance, especially regarding the cession of the debt arising from the credit agreement concluded between a bank and a consumer. Key-words: enforcement, credit agreement, consumer, cession of debt 23 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, horia.tit@gmail.com 32

33 THE DISSOLUTION OF COMPANIES REGULATED BY LAW NO. 31/1990. CASES OF SANCTION DISSOLUTION. THEORETICAL AND PRACTICAL ASPECTS DIZOLVAREA SOCIETĂȚILOR REGLEMENTATE DE LEGEA NR. 31/1990. CAZURILE DE DIZOLVARE SANCȚIUNE. ASPECTE TEORETICE ȘI PRACTICE OLGA ANDREEA URDA 24 Dissolution of companies regulated by Law no. 31/1990 represents the assembly of all the operations involved in preparing the company for entry into the liquidation stage. Among the situations that attract dissolution, Law no. 31/1990 regulates a number of cases of sanction dissolution which aim in particular at protecting the interests of third parties. Whether it is about the absence of statutory bodies or expiration of the registered office, dissolution occurs as a sanction if essential rules regarding the company are no longer being met and business relations may be affected thereby significantly. Key-words: society, dissolution of the society, extension of the duration of the society, nullity, registered office unknown. 24 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, olga.alexandru@uaic.ro 33

34 SOME ISSUES CONCERNING THE VALIDITY CONDITIONS OF THE OBJECT OF THE CIVIL JURISTIC ACT UNELE ASPECTE PRIVIND CERINȚELE DE VALABILITATE ALE OBIECTULUI ACTULUI JURIDIC CIVIL LUIZA CRISTINA GAVRILESCU 25 The object of the civil juristic act consists in the transaction conducted by the parties, which is materialized in the obligation or the duty assumed by the debtor, namely to give, to do, or not to do something specific. The object of the obligation is represented by a positive or a negative prestation, which the debtor is bound to accomplish, in fulfillment of his obligation. In order to be valid, the object of the juristic act must meet certain requirements prescribed by law. The general validity requirements are applicable to any juristic acts, the object of which should be: determined or determinable; possible; licit and moral. The special validity requirements are applicable only to certain categories of juristic acts, the object of which must meet further conditions, depending on their specific: to consist in a personal fact of the debtor; to exist; to be in the civil circuit; to obtain the administrative or judicial authorization required by law etc. Whereas it constitutes an essential element of the juristic act, the validity of the object determines the validity of the act itself. Key-words: subject to legal act, requirements of validity, property, invalidity 25 Asistent dr., Universitatea Alexandru Ioan Cuza din Iaşi, Facultatea de Drept, luiza.gavrilescu@uaic.ro 34

35 EXTINGUISHMENT OF THE LIEN RIGHT CONSIDERING THE NEW CIVIL CODE STINGEREA DREPTULUI DE RETENȚIE IN LUMINA NOULUI COD CIVIL IULIA ALEXANDRA BOSNEANU 26 The issues related to the extinguishment of the lien right had a special importance within the legal regime of this guarantee right because the causes with extinctive effect on it largely reflect the extent of the prerogatives of the retainer and its guarantee position. The provisions of the new Civil Code do not include references to all situations considered in the specialty literature, and the text of the art. 2499, having the marginal name of The Extinguishment of the Lien Right, reveals the main way to terminate only through a per a contrario interpretation, being the ground of an apparent right of seizure conferred to the retainer. However, taking into account the modalities of termination of retention, the legislator brings a real novelty, allowing the debtor to take out the asset from the possession of the retainer by offering a sufficient conventional guarantee offer in relation to its claim, which would replace the right of retention provided by the law. Besides the provisions of the art , another relevant legal text regarding the termination of the right of retention is the art , placed in the title regulating the extinctive prescription. So, by means of the content of this regulation, the legislator succeeds to explain in an interesting manner the issue of incidence of this type of prescription upon the retention right. Key-words: lien, freewill dispossession, asset disappearance, guarantee offer, extinctive prescription 26 Doctorand, Facultatea de Drept, Universitatea din Craiova, iuliabosneanu@yahoo.com 35

36 CONSIDERAȚII CU PRIVIRE LA EFICACITATEA CLAUZEI COMPROMISORII INSERATĂ ÎNTR-UN ACT JURIDIC SIMULAT TUDOR-VLAD RĂDULESCU 27 The article aims to address the issue of compatibility between the arbitration clause and the operation of simulation. More specifically, to answer two problems that could arise if the parties, choosing to hide the true legal relationship between them, have concluded a secret act, known only by them, and a public act, ostensible, enforceable against third parties, where they chose to introduce an arbitration clause. Thus, the two problems can be summarized as follows: 1. the action for declaration of the simulation will be in the jurisdiction of the courts or of an arbitral tribunal? and 2. if disputes are in relation to the performance of the obligations arising from the covert contract, the one taking effect between the parties, the competence will belong to the courts or to the arbitral tribunal? The above problems may arise where the parties have included the arbitration clause only in the content of the public act, and not in the secret one, and shall be established to what extent this clause will be more effective, or, in other words, what is the relation between the arbitration clause and the avert contract between the parties: of independence or dependence? Key-words: simulation, arbitration clause, avert contract 27 Doctorand, Universitatea Nicolae Titulescu București, Facultatea de Drept, tradulescu@yahoo.com 36

37 CLARIFICATIONS ON THE CONCEPT OF MORAL DAMAGES CLARIFICĂRI CU PRIVIRE LA CONCEPTUL DAUNE MORALE IONUȚ TUDOR 28 The concept of moral damages is deeply rooted in our legal vocabulary, being used too lax, once designating the general category of non-patrimonial damages considered as an essential requirement for liability, but also as the consequence of liability, namely the awarding of a compensatory sum for the injure of the protected interests. We argue that the concept is valid only in the first instance, when we refer to non-patrimonial damages, but not in the second, when it is preferable to use the term damages (dommages-intérêts in French, or daune-interese in Romanian), term preferred also by the present Civil Code. Thus, a phrase like to assign moral damages, frequently used in jurisprudence, is, if not false, at least inopportune. Key-words: moral damages, concept, liability, compensatory sum 28 Doctorand, Universitatea Alexandru Ioan Cuza din Iaşi, Facultatea de Drept, nt_tudor@yahoo.com 37

38 HYPERLINKING THROUGH CJEU LENS TO THE 2016 COPYRIGHT REFORM THE HEAT IS ON ABSTRACT LAURA LEONTE 29 In the past years, the challenges posed by the information society can be assessed by having a close look on hyperlinking, the act of referencing to works by clicking or tapping. The copyright issues brought about by hyperlinking have been a subject of constant debate among scholars, national courts and up to the level of the Court of Justice of the European Union (CJEU). A close look at the way the concept of hyperlinking is interpreted at the CJUE level will not only reveal contradictory positions within EU s highest court, but will also help us grasp the complexity of the online environment from a copyright perspective. Moreover, it will serve as a reference point for understanding the objectives of the new reform package released on 14 September by the European Commission, respectively the Directive on copyright in the Digital Single Market, aiming at promoting a fair, efficient and competitive European copyright-based economy in the information society. Both the CJEU jurisprudence on hyperlinking and the new rules set out in the proposed directive are paramount in order to ensure that a fair balance is struck between the online exploitation of creative content and the economic interests of copyright holders. Key-words: hyperlinking, online environment, copyright 29 Avocat Baroul București, Consilier de proprietate intelectuală, laura@postuleonte.ro 38

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40 Drept public - Reforma administraţiei şi statul de drept Moderatori: conferențiar dr. Marius Balan & lector dr. Dan Constantin Mâță Titlurile comunicărilor: 1. Conferențiar dr. Ioana Maria Costea, Despre măsuri și sancțiuni administrative în materia fondurilor europene/ On administrative measures and sanctions in the field of European funds 2. Conferențiar dr. Marius Balan, Some considerations on budgetary balance from the perspective of the financial constitution/ Considerații asupra echilibrului bugetar din perspectiva constituției financiare 3. Lector dr. Dan Constantin Mâță, Regulatory perspectives in the administrative hierarchical classification of settlements in Romania/ Perspective normative în ierarhizarea administrativă a localităților din România 4. Lector dr. Augustin Vasile Fărcaş, The concept of guaranteeing, promoting and protecting human rights, by alingning national legislation with the international standards/ Ideea garantării, promovării şi protejării drepturilor omului prin racordarea legislaţiei naţionale la standardele internaţionale 5. Lector dr. Augustin Vasile Fărcaş, Opinions on the revised 2003 constitution articles which call into question the transfer of responsibilities from the national state to the EU institutions/ Reflecţii asupra unor texte din constituţia revizuită în 2003, prin care se pune în discuţie transferul unor atribuţii ale statului naţional către instituţiile europene 6. Lector dr. Carmen-Mariana Diaconu, Public policies on property right registration. Practical aspects/ Politici publice privind dreptul de proprietate. Aspecte practice 7. Lector dr. Iulian Muntean, Deficiencies in initiating a referendum in Republic of Moldova/ Deficiențele inițierii unui referendum în Republica Moldova 8. Asistent dr. Andra Iftimiei, The position of constitutional courts on family and marriage in the context of the proposal to revise the Romanian Constitution 40

41 (art. 48)/ Poziția instanțelor constituționale cu privire la familie și casatorie in contextul propunerii de revizuire a Constituției României (art. 48) 9. Asistent dr. George-Claudiu Pupăzan, Human resource management at the administrative-territorial unit 10. Cercetător CS III Mihai Lupu, Is it ethics and law a desirable encounter anymore? 11. Doctorand Adelina Mihai, Defining the right to education. A universal challenge for the international law 12. Doctorand Elena Cristina Murgu, The legal conflict of a constitutional nature in the rule of law between political conflict and the infringement of the constitutional loyalty/ Conflictul juridic de natură constituţională ȋn statul de drept ȋntre conflict politic şi ȋncălcarea principiului constituţional al loialităţii constituţionale 13. Doctorand Elisabeta Slabu, Does good administration represent a basic concept for the public administration reform in Romania? 14. Mediator Liliana Ștefan, Mediation as a part related to legal sciences A challenge of the era / Medierea ca parte conexă a ştiinţelor juridice - Provocare a epocii 41

42 ON ADMINISTRATIVE MEASURES AND SANCTIONS IN THE FIELD OF EUROPEAN FUNDS DESPRE MĂSURI ȘI SANCȚIUNI ADMINISTRATIVE ÎN MATERIA FONDURILOR EUROPENE IOANA MARIA COSTEA 30 The study has as departure point a recent jurisprudential checkpoint from the Court of Justice of the European Union. The interest of the theme is accentuated by the existence of a previous decision of the Romanian Constitutional Court in the same matter. The two judicial approaches allow a general interrogation on the notion and purpose of financial corrections in European funds contracts. The main division is between measures, who have recuperatory function and assure the equilibrium of the European budget and the sanctions, who have punitive purpose. Subsequently, the application in time of corrective legislation raises a difference in jurisprudential accents. A series of normative modifications in a field qualified as non-penal has altered the procedures for identifying and quashing contractual irregularities. The legal bound between the financing national organisms (managing European funds) and the financial beneficiaries is ground for different procedures applicable at different moments in time. The general key of analysis in determining if a retroactive effect is in place could be the punitive nature of the procedures. The study tries to underline similarities and differences between the two jurisprudential visions and to ensure a unitary perspective for further case-law. Keywords: financial corrections, European funds contracts, measures, sanctions 30 Conferențiar dr., Universitatea Alexandru Ioan Cuza din Iaşi, Facultatea de Drept, ioana.costea@uaic.ro 42

43 SOME CONSIDERATIONS ON BUDGETARY BALANCE FROM THE PERSPECTIVE OF THE FINANCIAL CONSTITUTION CONSIDERATII ASUPRA ECHILIBRULUI BUGETAR DIN PERSPECTIVA CONSTITUTIEI FINANCIARE MARIUS BALAN 31 The adoption of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), as a response to the crisis of sovereign debts, confronted both constitutional scholarship and judicial practice with major challenges. From this perspective, the issue of determining the actual normativity of the golden rule instituted by the treaty does grow, especially in respect to its effectiveness and efficiency. The legal solutions adopted by the states party to the treaty are quite different, as well as their opinion on the relevance and usefulness of the golden rule. This paper argues that the challenge represented by the implementation of the golden rule instituted by the TSCG evidences the ongoing reshaping of constitutional order in the direction of a constitutional transformation, by redefining the political community of modern constitutional states. Key-words: TSCG, golden rule, budgetary balance, hierarchy of norms, open texture norms, unwritten constitutional law 31 Conferențiar dr., Universitatea Alexandru Ioan Cuza din Iaşi, Facultatea de Drept, balan@uaic.ro 43

44 REGULATORY PERSPECTIVES IN THE ADMINISTRATIVE HIERARCHICAL CLASSIFICATION OF SETTLEMENTS IN ROMANIA PERSPECTIVE NORMATIVE ÎN IERARHIZAREA ADMINISTRATIVĂ A LOCALITĂȚILOR DIN ROMÂNIA DAN CONSTANTIN MÂȚĂ 32 The hierarchical classification of urban and rural settlements is a dimension of the national land-use planning. The land-use planning aims to harmonize at territorial level the economic, social, cultural and environmental policies in view of sustainable development. For almost five decades the Romanian territory has been organized administratively into counties, cities and communes. After 1990, given the substantial socio-economic changes, a hierarchical classification of settlements based on a series of minimal indicators was pursued. By the provisions of Law no. 351/2001 the hierarchical classification of urban and rural settlements into 6 ranks was approved. Currently, it is considered that this hierarchical classification no longer corresponds to the socio-demographic realities and to the regional development prospects of Romania. The article analyzes, from a critical perspective, the bill on the hierarchical classification of settlements insisting on minimal indicators, on the special categories introduced and on its effects on the administrative organization of the national territory. Key-words: administrative organization, land-use planning, urban settlements, rural settlements 32 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, danmata@uaic.ro 44

45 THE CONCEPT OF GUARANTEEING, PROMOTING AND PROTECTING HUMAN RIGHTS, BY ALINGNING NATIONAL LEGISLATION WITH THE INTERNATIONAL STANDARDS IDEEA GARANTĂRII, PROMOVĂRII ŞI PROTEJĂRII DREPTURILOR OMULUI PRIN RACORDAREA LEGISLAŢIEI NAŢIONALE LA STANDARDELE INTERNAŢIONALE AUGUSTIN VASILE FĂRCAŞ 33 It is important to point out that learning and researching human rights constitutes an appropriate means to ensure better respect of the same rights, through a better knowledge of them. The value of democracy depends upon the ability that citizens have to judge its government and the actual margin of freedom that they enjoy in order to make it. Moreover, in a strong democracy the full respect of the entire corpus of individual rights is a necessary condition for existence of a fully operating democracy. Some kind of progress in human rights has emerged almost immediately after the collapse of communism. When we talk about the role of civil society in that "autumn of peoples" in 1989 we should keep in mind that in that period the civil society was reborn. Key-words: values; rights; institutions; democracy. 33 Lector dr., Universitatea,,Dimitrie Cantemir din Târgu-Mureş, Facultatea de drept, augustinvasilefarcas@yahoo.com 45

46 OPINIONS ON THE REVISED 2003 CONSTITUTION ARTICLES WHICH CALL INTO QUESTION THE TRANSFER OF RESPONSIBILITIES FROM THE NATIONAL STATE TO THE EU INSTITUTIONS REFLECŢII ASUPRA UNOR TEXTE DIN CONSTITUŢIA REVIZUITĂ ÎN 2003, PRIN CARE SE PUNE ÎN DISCUŢIE TRANSFERUL UNOR ATRIBUŢII ALE STATULUI NAŢIONAL CĂTRE INSTITUŢIILE EUROPENE AUGUSTIN VASILE FĂRCAŞ 34 Starting from the optimistic premise that this research will arouse interest, at least through the approached theme, we consider that the existence within the content of the revised Constitution of a special law - which is adopted under special circumstances, to achieve a particular political-juridical purpose, namely the integration of Romania into Euro-Atlantic structures (NATO and the European Union) - with huge obvious implications upon the destiny of our country, must not lead us to the idea of disruption of the constitutional system - a system which is nevertheless a changing, adapting and harmonizing one but it must lead us to the idea of consecrating the accession law to its true value, being a special Act and an exception rule laid down in art. 73 para. (1) of the Constitution regarding the categories of laws. Key-words: law; integration; transfer; institutions. 34 Lector dr., Universitatea,,Dimitrie Cantemir din Târgu-Mureş, Facultatea de drept, augustinvasilefarcas@yahoo.com 46

47 PUBLIC POLICIES ON PROPERTY RIGHT REGISTRATION. PRACTICAL ASPECTS POLITICI PUBLICE PRIVIND DREPTUL DE PROPRIETATE. ASPECTE PRACTICE CARMEN-MARIANA DIACONU 35 Property right is, in addition to other constitutional rights and freedoms, the foundation of a democratic state. The Romanian Constitution, both in its 1991 and 1993 forms, enshrined this aspect, thus the right to property, regardless of its holder and hence its public or private nature, is guaranteed by the constitutional provisions stated in Article 44. To achieve the declarative goal pursued by the constitutional provision, it is essential, as it appears from the interpretation and application of Article 1 paragraph 1 of Protocol I to the European Convention on Human Rights, for the owner to actually enjoy all attributes of property right, as defined by Article 555 of the Civil Code, namely the holder s right to exclusively, absolutely and perpetually possess, use and own, within the limits set by law. Key-words: Property right, owner, possession, real property warranties 35 Lector dr., Universitatea de Științe Agricole și Medicină Veterinară Ion Ionescu de la Brad Iași, Facultatea de Agricultură Departamentul Agroeconomie, avocatcarmendiaconu@gmail.com 47

48 DEFICIENCIES IN INITIATING A REFERENDUM IN REPUBLIC OF MOLDOVA DEFICIENȚELE INIȚIERII UNUI REFERENDUM ÎN REPUBLICA MOLDOVA IULIAN MUNTEAN 36 This article aims at resolving issues related to the referendum by voters, that can result from poor domestic collecting of signatures and identifying a solution by applying comparative constitutional law. Key-words: referendum, domestic legislation, constitutional law 36 Lector dr., Universitatea Agricolă de Stat din Moldova, iulianase128@gmail.com 48

49 THE POSITION OF CONSTITUTIONAL COURTS ON FAMILY AND MARRIAGE IN THE CONTEXT OF THE PROPOSAL TO REVISE THE ROMANIAN CONSTITUTION (ART. 48) POZIȚIA INSTANȚELOR CONSTITUȚIONALE CU PRIVIRE LA FAMILIE ȘI CĂSĂTORIE ÎN CONTEXTUL PROPUNERII DE REVIZUIRE A CONSTITUȚIEI ROMÂNIEI (ART. 48) ANDRA IFTIMIEI 37 On May 23, 2016 was registered at the Senate a legislative proposal to revise the Constitution of Romania, submitted on June 7, 2016 by the Constitutional Court of Romania, a proposal to amend art. 48, the initiator's form being "family is created through free marriage between a man and a woman, their equality and the right and duty of parents to ensure the upbringing, education and instruction of children". Analysis of the constitutional provisions of the fundamental laws of other countries (such as Spain, Poland or Portugal) helps create a complete picture of how constituent power has intended to regulate the constitutional principle of family and therefore marriage. A detailed analysis of the case law of constitutional courts will lead to finding a legislative solution that is consistent with the idea of uniformity, particularly with Romanian constitutional guarantees. The analysis will be held on the jurisprudence of Spain`s Constitutional Court or on the French Constitutional Council. Key-words: Constitutional revision, constitutional jurisprudence, marriage, family, constitutional principle. 37 Asistent dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, andra.iftimiei@uaic.ro 49

50 MEDICINE WITHOUT BLOOD TRANSFUSIONS FOR THE MEMBERS OF THE JEHOVAH'S WITNESSES RELIGIOUS ORGANIZATION LIMITS AND LIMITATIONS. DEBATES ON MEDICAL MALPRACTICE CASES MEDICINA FĂRĂ TRANSFUZII DE SÂNGE PENTRU MEMBRII ORGANIZAŢIEI RELIGIOASE MARTORII LUI IEHOVA- LIMITE ȘI LIMITĂRI. DISCUȚII PRIVIND CAZURILE DE MALPRAXIS MEDICAL MIRELA CARMEN DOBRILĂ 38 On religious grounds, Jehovah's Witnesses do not accept blood transfusions, instead they support the idea of alternatives to blood transfusion, based on the evolution of medical treatment. Are the medical units equipped with appropriate equipment to exercise the treatments and medical procedures that do not involve blood transfusions and which would respect the religious beliefs of Jehovah s Witnesses? This article presents aspects regarding the possibility of the persons belonging to the organization of Jehovah s Witnesses to manifest their religion beliefs, with specific elements of the cult but also aspects on the need to ensure a medical context corresponding to the concept of bloodless medicine, namely medical practices that do not involve blood transfusions. Of great interest is the case of a possible refusal by the parents on behalf of the minors to accept medical treatment involving blood transfusion. The study calls into question what happens if the belonging to Jehovah's Witnesses Cult and the specific beliefs by which they refuse blood transfusion bring about risks to the health and lives of the minor children, taking into consideration that the decision on religious education will be taken by parents or guardians. The survey analyzes the legal and ethical aspects regarding the doctor sdilemma on how to act if a patient is part of the Religious Organization of Jehovah s Witnesses and refuses blood transfusion, even the case where this treatment is the only solution to save the patient s life, and the fact that the doctor sometimes finds himself to the limit of medical malpractice. Keywords: Jehovah s Witnesses, blood transfusion, refusal of blood transfusion for minors, ethical dilemma, hospital equipment, bloodless medicine, alternatives to blood transfusion, medical malpractice 38 Asistent dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, mirela.dobrila@uaic.ro; 50

51 HUMAN RESOURCE MANAGEMENT AT THE ADMINISTRATIVE- TERRITORIAL UNIT RESURSA UMANĂ LA NIVELUL CONDUCERII UNITĂȚII ADMINISTRATIV-TERITORIALE GEORGE-CLAUDIU PUPĂZAN 39 Human resource management at the administrative-territorial unit has always been a major problem in Romania. This situation was caused by the low level of training necessary to fulfill work assignments but also by promoting personal and party interests to the detriment of local interests. Even if we notice lately significant progress in terms of removing these deficiencies, problems to solve still remain. Solutions for solving them can be: 1. increased control over local governments; 2. reducing the political factor in the appointment and support of locally elected officials; 3. prioritizing economic investments towards social and cultural investments. Key-words: human resource, local elected, administrative territorial unit, corruption 39 Asistent dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, pupazan_claudiu@yahoo.com 51

52 IS IT ETHICS AND LAW A DESIRABLE ENCOUNTER ANYMORE? POSIBILE ÎNTÂLNIRI ÎNTRE ETICĂ ȘI DREPT MIHAI LUPU 40 As a science, law may be in danger of not offering solutions, but only scientific certainties. Multiplying sharp branches and theorizing gives birth, today more than ever, to personal or professional group search and a reasoning increasingly complicated. Initiating a legal activity, even if we consider the law making process or applying the rule of law in a trial, involves many uncontrollable factors/elements to achieve the desirable result. Increasingly often, the result is not matching the expected solution. Hence, the imperative for new corrections is born, which leads to instability and confusion. Thus, the functions of law itself become altered. The aim of this paper is to develop the idea that ethics, as moral science of reality, could be considered / should be a solid ground of the legal system. Key-words: law, ethics, legal activity, reality 40 Cercetător CSIII, dr., Academia Română, Filiala Iași, avmlupu@gmail.com 52

53 DEFINING THE RIGHT TO EDUCATION. A UNIVERSAL CHALLENGE FOR THE INTERNATIONAL LAW ADELINA MIHAI 41 The concept of "education is one of the terms which is defined in many different ways depending, on one hand on the domain in which it is being used, and, on the other hand, on the social context. The legal sense of this concept raises several issues related to the social context, due to the fact that the culture of each state leaves its mark on the way we perceive the concept. Therefore, there are a few legal sources that can provide a concrete definition of the term "education" because of the vast meaning of the term. The problems arise when the concept of "education" is involved in a phrase, in fact in the phrase "right to education". Judicially speaking, if we refer to the right to education, there immediately appears a complex process which involves two characters: the state and the individuals who benefit from the right to education. In this case another question arises: When can we consider that someone is educated? How does the state guarantee a right to education? Can we say about someone that he is educated if he has only a few skills developed? Key-words: education, right to education, cultural perception, international law. 41 Doctorand, Universitatea din Craiova, Școala Doctorală a Facultăţii de Drept,, ade.mihai23@gmail.com 53

54 THE LEGAL CONFLICT OF A CONSTITUTIONAL NATURE IN THE RULE OF LAW BETWEEN POLITICAL CONFLICT AND THE INFRINGEMENT OF THE CONSTITUTIONAL LOYALTY CONFLICTUL JURIDIC DE NATURĂ CONSTITUŢIONALĂ ȊN STATUL DE DREPT ȊNTRE CONFLICT POLITIC ŞI ȊNCĂLCAREA PRINCIPIULUI CONSTITUŢIONAL AL LOIALITĂŢII CONSTITUŢIONALE ELENA CRISTINA MURGU 42 It is common fact that lately the concept of rule of law has become the main pillar for the proper development of the institutional framework of the states; and this can be explained by the fact that it implies, on one hand, several institutions of a high significance for the state, and, on the other hand, the relations that arise between such institutions. The connections between the institutions of the state can sometimes easily become a legal conflict of a constitutional nature, which, depending on its intricate content, can affect more or less the well functioning of the state. Due to the fact that between these concepts, which are of a great importance for each and every state, is a close connection, it is undoubtedly necessary to study their complex contents. Key-words: rule of law, legal conflicts of a constitutional nature, content, institutions of the state 42 Doctorand, Universitatea din Craiova, Școala Doctorală a Facultăţii de Drept, elenacristinamurgu@yahoo.ro 54

55 DOES GOOD ADMINISTRATION REPRESENT A BASIC CONCEPT FOR THE PUBLIC ADMINISTRATION REFORM IN ROMANIA? ELISABETA SLABU 43 Public administration reform requires, among other things, recognition and affirmation in legislation of the right to a good administration as a fundamental right of citizens in order to achieve the ultimate goal, the rule of law. Clear and stable legal regulations are needed, as well as an efficient and well trained public management, appropriately trained employees, stable and responsible, efficient control of the activity of the public administration authorities in order to prevent corruption, respect for fundamental human rights by the same authorities. All these elements constitute the core concept of good administration, concept increasingly acknowledged by the administration law authors. Key-words: good administration, public administration reform, fundamental principles of the public administration, public management, prevention of corruption, fundamental human rights, rule of law. 43 Doctorand, Universitatea din București, Școala Doctorală a Facultăţii de Drept,, slabuelisabeta@yahoo.com 55

56 MEDIATION AS A PART RELATED TO LEGAL SCIENCES A CHALLENGE OF THE ERA MEDIEREA CA PARTE CONEXĂ A ŞTIINŢELOR JURIDICE - PROVOCARE A EPOCII LILIANA ŞTEFAN 44 This article aims to point out, in a synthetic manner, the concept of mediation and the profession of mediator, as components of the current legal system and, at the same time, to highlight the advantages of mediation agreements as an alternative to the judicial system or as a remedy in criminal proceedings. These aspects are approached in the context of the not only European, but also global legislative trends, which support finding solutions for people s disputes outside the court rooms, before them being registered on the docket of courts. Key-words: mediator, mediation agreement, information procedure on mediation, unconstitutional 44 Mediator, stefanliliana@gmail.com 56

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58 Drept internaţional şi European - Ordinea juridică internaţională şi europeană în faţa provocărilor contemporane Moderatori: Lector dr. Carmen Moldovan & Lector dr. Emanoil Corneliu Mogîrzan Titlurile comunicărilor 1. Lector dr. Emanoil Corneliu Mogîrzan, On the difficult relationship between Great Britain and the European Union and the implications of Brexit/Aspecte privind relația dificilă dintre Marea Britanie și Uniunea Europeană și implicațiile Brexit 2. Lector dr. Carmen Moldovan, The analysis of the right to asylum of Julian Assange - Opinion of the working group on arbitrary detention adopted on 4 december 2015 (Opinion no. 54/2015 concerning Julian Assange - Sweden and The United Kingdom of Great Britain and Northern Ireland) 3. Lector dr. Alina Gentimir, Protection of the press freedom: current european normative challanges/ Protecţia libertăţii presei : provocări normative europene actuale 4. Conferențiar dr. Violeta Melnic, The criminal law outlooks in the European Union/ perspectivele dreptului penal al Uniunii Europene 5. Doctorand Andrei Petre, Regulations of international public law. Sources of international public law/ Normele dreptului internaţional public. Izvoarele dreptului 6. Avocat Smaranda Miron, Bilateral Investment Treaties between European Member States paradise lost? 58

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60 ON THE DIFFICULT RELATIONSHIP BETWEEN GREAT BRITAIN AND THE EUROPEAN UNION AND THE IMPLICATIONS OF BREXIT ASPECTE PRIVIND RELAȚIA DIFICILA DINTRE MAREA BRITANIE ȘI UNIUNEA EUROPEANA ȘI IMPLICAȚIILE BREXIT EMANOIL CORNELIU MOGÎRZAN 45 The decision of the British people to withdraw from the Union will lead to the first application of the article 50 of the Treaty on the European Union. Of course, the decision taken by referendum raises a general question on the relevance of the national referenda as democratic tools. On the other hand, the relationship between Great Britain and the European Union has been problematic from the very beginning. The British governments stayed away from the plans for European integration negotiated in the years Later on the British efforts to join the European Community had a purely economic motivation. Inside the EEC and the European Union, Great Britain had constantly sought and in many occasions got a derogatory status, risking to water down the Union, bringing it close to an à la carte organization. However, we should not forget the contributions of Great Britain to the Union, such as: the efforts for the completion of the internal market, the Eastern enlargement, the notable participation in the common foreign and security policy, the activity of the British people inside the institutions of the European Union. Many effects of Brexit seem to negative, both for the United Kingdom and for the Union, but that crisis could also be a chance for the Union. Keywords: Brexit, referendum, integration, euroscepticism, Europe à la carte 45 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, ecmogirzan@yahoo.com 60

61 THE ANALYSIS OF THE RIGHT TO ASYLUM OF JULIAN ASSANGE - OPINION OF THE WORKING GROUP ON ARBITRARY DETENTION ADOPTED ON 4 DECEMBER 2015 (OPINION NO. 54/2015 CONCERNING JULIAN ASSANGE - SWEDEN AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND) ANALIZA DREPTULUI DE AZIL ÎN CAZUL LUI JULIAN ASSANGE ÎN OPINIA WORKING GROUP ON ARBITRARY DETENTION, ADOPTATĂ LA 4 DECEMBRIE 2015 (OPINION NO. 54/2015 CONCERNING JULIAN ASSANGE - SWEDEN AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND) CARMEN MOLDOVAN 46 In the opinion of the Working Group on Arbitrary Detention, the right to asylum is an inalienable right, and in the case of Mr. Julian Assange, the deprivation of liberty is arbitrary and contravenes Articles 9 and 10 of the Universal Declaration of Human Rights and also Articles 7, 9 para. 1, 9 par. 4, 10 and 14 of the International Covenant on Civil and Political Rights. Consequently, the Working Group requested the Governments of Sweden and the United Kingdom to assess the situation of Mr. Assange to ensure his safety and physical integrity, to facilitate its exercise of the right to freedom of movement in an appropriate manner and to ensure that all rights guaranteed by international rules on detention. This paper aims to briefly present the facts of the case and the particular situation of Mr. Assange, to explain the arguments noted by the Working Group and to underline the innovative elements of its interpretation in this case concerning the connection between the right to asylum, the conditions for granting this right, its effects and the implications on the right to free movement and the possibility of legal interferences. Key-words: the right to asylum, arbitrary detention, freedom of movement 46 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, carmen.moldovan@uaic.ro 61

62 PROTECTION OF THE PRESS FREEDOM: CURRENT EUROPEAN NORMATIVE CHALLANGES PROTECŢIA LIBERTĂŢII PRESEI: PROVOCĂRI NORMATIVE EUROPENE ACTUALE ALINA GENTIMIR 47 The current paper aims to underline that freedom of the press is essential for democracy, which represents one of the fundamental values common to all European States. Its two constituents underline its allegiance: on one side, it provides people active in journalism with an individual right to inform and to express opinions; on the other, press freedom gives the press guarantees appropriate to an institution inherent to the democratic process. As well, press freedom is characterized by ideological, cultural, social and political pluralism. Equally, the paper will highlight that, within the European Union legal framework, press freedom is a fundamental right established in the European Union Charter of Fundamental Rights, with its provision closely resembling that on press freedom in the European Convention on Human Rights, and resized by both European norms such as a Resolution on the EU Charter: standard settings for media freedom across the EU and self-regulation, based on codes of conducts for journalistic activities, like Editors' Code of Practice in the UK, Pressekodex in Germany, códigos deontológicos in Spain. Not least, the paper will reveal that current challenges such as incitement to ethnic, racial, religious hate, threat to the democratic order, apology of violence, terrorism, war crimes, and instigation to hostility, disparagement of national identity or insult of State officials require new common regulations for journalists, taking into consideration their role of opinion leaders. Key-words: freedom of the press, pluralism, hate speech, terrorism 47 Lector dr., Universitatea Alexandru Ioan Cuza din Iași, Facultatea de Drept, agentimir@yahoo.fr 62

63 THE PROSPECTS OF THE EUROPEAN UNION CRIMINAL LAW PERSPECTIVELE DREPTULUI PENAL AL UNIUNII EUROPENE VIOLETA MELNIC 48 The aim of this research is a complex approach at the doctrinal and legislative level in order to create the science of EU criminal law. The guarantee of a good functioning of the internal market and of a good observance of human rights doesn t lack the national criminal legal frameworks of EU member states of the influence of European Union rules. The evolution of criminal policy in the EU institutional and legal frameworks established two concepts of criminal regulation of the European area: the European criminal law which is elaborated at the EU level, and the European criminal law which is applicable on the base of European territorial principle. Thus, the EU criminal regulations can be directly executed by the EU institutions and the EU legislation can influence the criminal systems of the EU member States. Key-words: European Union, Criminal European Law, Criminal Law 48 Conferențiar dr., Institutul de Relații internaționale din Moldova, Facultatea de Drept, violeta.melnic.eu@gmail.com 63

64 REGULATIONS OF INTERNATIONAL PUBLIC LAW. SOURCES OF INTERNATIONAL PUBLIC LAW NORMELE DREPTULUI INTERNAŢIONAL PUBLIC. IZVOARELE DREPTULUI ANDREI PETRE 49 In the first part of this article, I generally approached the custom of international law, emphasizing the different aspects between international public law regulations and internal law regulations. Furthermore, I could not leave out of my research the jus cogens regulation, the imperative regulations of international public law, from which no derogation is allowed as all the international law regulations are directly linked to them. Moreover, I have also pointed to the criteria according to which the jus cogens imperative character of an international public law is established. In the second part of the article I have tackled the traditional sources of international law - the treaty and the custom. As far as the treaty is concerned I have underlined their importance in international rapports by means of also doing a random classification into bilateral and multilateral treaties, law treaties and contract treaties. The second traditional source, the custom, was highlighted through its characteristics - what I had in mind was to differentiate between the international custom and the actual practice on an international scale. I have also introduced the cases of conflict of law between conventional norms and customary laws, as well as the judicial resolution procedure. Key-words: treaty, common-law, law, international, states, source 49 Doctorand: Facultatea de Drept, Universitatea de Stat din Moldova (USM) Specialitatea : Drept Internaţional Public, piotrand921@gmail.com 64

65 BILATERAL INVESTMENT TREATIES BETWEEN EUROPEAN MEMBER STATES PARADISE LOST? SMARANDA MIRON 50 According to the European Commission, bilateral investment treaties concluded between European Member States (intra-eu BITs) should be terminated, as arbitration proceedings based on these international instruments may produce outcomes which are incompatible with European law. The compatibility of intra- EU BITs with European law has been debated at large by academia, international arbitral tribunals and national courts, but the Court of Justice of the European Union (CJEU) has not yet had the chance to decide on the matter. It will soon have to do so, in at least three instances:(1) In the Achmea arbitration, the Slovak Republic argued that, once the state signed the EU Accession Agreement, all the intra-eu BITs which it had previously concluded were automatically terminated. The case is currently before the German Federal Supreme Court, which asked the CJEU for a preliminary ruling relating to the validity of investor-state arbitration under intra- EU BITs. More specifically, a position on the compatibility of investor-state arbitration with Articles 344, 267 and 18 TFEU is sought. (2) Next, in the Micula arbitration, Romania was sanctioned for having repealed incentives which, under EU law, constitute illegal state aid. The European Commission issued a decision forbidding Romania to pay the damages due under the award. The claimants challenged the decision before the General Court, and are claiming that Romania s obligations under international law take primacy over its obligations stemming from EU law. (3) Finally, in June 2015 the European Commission commenced infringement proceedings against five Member States (Austria, the Netherlands, Romania, Slovakia and Sweden) which had refused to willingly terminate their intra-eu BITs. While the way forward is uncertain, it should be noted that, in the context of the TTIP negotiations, the European Commission made a proposal for an investment court which could potentially replace investment arbitration based on intra-eu BITs. At the same time, the European Commission announced that it is exploring mechanisms for the quick and efficient mediation of investment disputes. Key-words: bilateral investment treaties, arbitration, European law 50 Avocat, smaranda.miron@energy-community.org 65

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