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The article tries to answer a very important problem faced by legal practitioners of all times, namely the problem of the relationship between equity and law. The perspective of a judge on this aspect is complemented by that of prestigious authors who have reflected on the most appropriate way of applying the law. In the article they are analyzed two major currents of interpretation of legal norms, which are still facing each other in the theory of law, namely textualism and purposivism, the first current claiming that the interpretation of the legal norms must be done exclusively on the basis of the text of the law, and the second that the legislator's intention or purpose must also be taken into account. It is also emphasized the risk that, through the interpretation of the law, judges will impose their views on state policy. Only equity can protect us from this risk, because it prevents arbitrariness. [ABSTRACT FROM AUTHOR]

Adults are increasingly using technology (computer, tablet, smartphone) as a vehicle for establishing personal relationships (as evidenced by the proliferation of online dating sites), but also for more practical purposes, such as getting directions, watching news or entertainment, or performing tasks at work, and the general trend is growing. In relation to the current context (the every day use of smartphones, computers, etc) we find that the influence of technology will be even greater, given the restrictions imposed by the authorities (not only in Romania, but worldwide) that have determined, in addition to physical isolation and work from home in an online system, an overwhelming influence of technology on lives (including social life, given the expansion of social networks along with the online dating sites mentioned above). The study exemplifies how some of these cyber offences are comitted. [ABSTRACT FROM AUTHOR]

The application of European Union law in criminal matters has raised numerous discussions in domestic law. The priority application of European Union law raised the issue of guaranteeing fundamental human rights and freedoms in the event that the internal standard is higher than the European Union standard. The jurisprudence of the Court of Justice of the European Union has established in numerous cases the priority nature of European Union law over domestic law. [ABSTRACT FROM AUTHOR]

Copyright of Romanian Case Law Review / Revista Română de Jurisprudenţă is the property of Universul Juridic Publishing House and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The article addresses the issue of cancellation of documents resulting from the commission of a crime, mainly concerning the special procedure regulated in Article 5491 of the Criminal Procedure Code. The legal nature of the institution of cancellation of documents resulting from the commission of an offence is the same, regardless of whether it is ordered by the court of law, pursuant to Article 25 paragraph 3 of the Criminal Procedure Code, or by the judge of the preliminary chamber, pursuant to Article 5491 of the Criminal Procedure Code. In the majority specialized literature it was embraced the opinion according to which within the procedure of abolition of documents regulated in Article 5491 of the Criminal Procedure Code only the document regarded as instrumentum probationis may be revoked, and not the legal operation attested by the respective document as negotium juris. Also, the majority doctrine considers that the procedure for the cancellation of documents can be applied only in case of committing forgery offences, not also in case the documents would come from committing other offences. This article seeks to question the correctness of these doctrinal opinions, bringing some arguments in the sense that the cancellation also refers to the legal operation (negotium) and may also concern documents resulting from the commission of offences other than those of forgery. In order to support these points of view, there have been brought resulting from the way in which the institution of cancellation of documents was regulated in the previous Romanian legislations and arguments resulting from the interpretation of the legal texts in force. The problem is of practical importance, because there are many situations in which the prosecutor's office can no longer order the prosecution of the perpetrator of the offence which is at the origin of which the document required to be revoked (due to his death or the intervention of criminal liability for this offence), notifying the judge of the preliminary chamber with the request for the cancellation of the document resulting from this offence. However, the solution which will be adopted by the judge of the preliminary chamber may depend on the clarification of the previously mentioned aspects. [ABSTRACT FROM AUTHOR]

The academic field is one that raises many ethical challenges and needs a different approach in this regard. Being an activity field with many particularities, with diversified human relations, with the involvement of a large number of people and with often divergent interests between them, the academic field needs an ethical approach. To better understand the concept of ethics, one should start from the etymology of this word. The definitions of ethics are much more numerous and each one emphasizes one or more aspects considered as defining for it. As a common element of these definitions, one can remember first of all that ethics is about human behaviour. The law and the regulations cannot cover the vastness of these inter-human relations and they manage to solve the multitude of problems that may arise in the relations between teachers, in the relations between students or in the relations between teachers and students. No matter how well the codes of ethics are developed, they will not be able to regulate all of the issues raised by the academic life. That is why greater emphasis should be placed on making each person aware of the importance of acquiring an ethical way of being and behaving in society. The human factor is the one that can ensure the smooth running of the activity in the academic environment. [ABSTRACT FROM AUTHOR]

The modified version of art. 121-3 of the French Criminal Code introduces a hierarchy of the nonintentional forms of guilt according to seriousness. From the perspective of the French legislator, this hierarchy would be the following: deliberate negligence (art. 121-3 para. 2), simple negligence - carelessness, imprudence - (art. 121-3 para. 3) and breaking a duty of care or protection (art. 121-3 para. 4). In the Italian Criminal Code only the conscious negligence is defined, whereas the simple negligence is not defined, but merely exemplified. Thus, article 43 para. 1 states that "There is an offence committed with negligence whenever the result, even though foreseen, is not desired by the agent and occurs because of carelessness, imprudence, lack of skill, or failure to observe laws, regulations, orders or instructions". [ABSTRACT FROM AUTHOR]

The main problem to which the present article aims to find an answer is how to apply in the criminal trial the sanctions generated by the establishment of the technical supervision through "other specialized state bodies", respectively if the sanction of excluding telephone or environmental interceptions made with the help of an intelligence body is the only sanction applicable in this case. By decision no. 51/2016, the Constitutional Court admitted an exception of unconstitutionality and found the unconstitutional character of the phrase "or through other specialized organs of the state", from the provisions of Article 142 para. (1) C. pr. pen., in the sense of its lack of foreseeability, considering that it refers only to the criminal investigation bodies and does not cover the specific technical activities. Subsequently, by decision no. 302/2017, also in a concrete control of a posteriori character, by way of exception, the Constitutional Court found that the legislative solution contained in the provisions of Article 281 paragraph (1) lit. b) C. pr. pen., which does not regulate in the category of absolute nullities the violation of the provisions regarding the material competence and according to the person's quality in the investigative phase is unconstitutional. Finally, specifying that it does not bring anything new to the other two previous solutions, by decision no. 26/2019, the Constitutional Court - this time resolving a legal conflict of a constitutional nature between the Public Ministry - the Prosecutor's Office next to the High Court of Cassation and Justice, the Parliament of Romania, the High Court of Cassation and Justice and the other courts - identified more deficiencies of constitutional character in the matter of special methods of technical supervision. By applying these decisions of the Constitutional Court and verifying the procedural situation specific to each case, the court/prosecutor can reach a certain result, being able to assess the legal conditions regarding the sanction of absolute nullity or, on the contrary, to an inconclusive one, for various reasons, such as the major technical character of the specific activity or the need to maintain the confidentiality of some of the activities or the lack of transparency specific to the domain - a characteristic for ensuring the success of such operations. However, the sanction of absolute nullity can only be applied under the conditions strictly regulated by the procedural law, imposing as a first condition the finding of the violation of the legal provisions, in our case those regarding the material/functional competence. The court/prosecutor may adopt other procedural remedies that satisfy the fairness requirements of the criminal trial, offered by criminal procedure and the conventional practice of respecting human rights. Besides the sanction of relative nullity, which would have the same effect as that of absolute nullity, but is too restrictive in proving procedural injury, the court/prosecutor could resort to another procedural remedy, specific to criminal probation - reducing or conditioning the probative value of the evidence in question. [ABSTRACT FROM AUTHOR]

Although in German and in Spanish legal systems there are no express provisions with regard to the criminal negligence (culpa), this has not hindered the legal doctrine and jurisprudence to thoroughly analyse this form of guilt. This made it possible to qualify as intentional offences some deeds which in our legal system are considered to be committed with conscious negligence (involving foresight). The difficulty to distinguish between indirect intention (dolus eventualis) and conscious negligence (luxuria) has nonetheless determined Spanish courts to ask the legislator to provide a clear definition of indirect intention, which could be an additional argument with respect to the weaknesses entailed by such a legal approach. [ABSTRACT FROM AUTHOR]

Under the old Code of Criminal Procedure, there has been no serious debate about the nature of the 5-day time limit within which the prosecutor must submit a proposal to extend the preventive arrest measure and because most courts have considered it to be a recommendation, there was no question regarding its calculation. The discussions focused on the peremptory or the recommandation nature of the term and the authors did not rule on the legal nature of the term in order to establish whether it was a procedural term or a substantive term. If we take into account all these views on the interest protected by the legislator by establishing the term in question, according to which the main reason for it is to protect the freedom of the person, we should consider it a substantive term, as it protects an extra-procedural interest and not a procedural one. In this case, the 5-day period should be calculated on full days, and if it expired on a non-working day, it would not be prolonged until the first business day. However, by Decision no. 20/2017 pronounced following the promotion of an appeal in the interest of the law, the High Court of Cassation and Justice has declared binding: "...in the interpretation and uniform application of the provisions of art. 235 para. (1) of the Code of Criminal Procedure, stipulates that: The 5-day period provided for in Article 235 (1) of the Criminal Procedure Code shall be calculated according to art. 269 para. (1), (2) and (4) of the Code of Criminal Procedure". [ABSTRACT FROM AUTHOR]

In art. 16 paragraph (2) and (4), the new Romanian Criminal code provides „(2) Guilt exists when an action is committed with direct intent, with basic intent or oblique intent.” and „(4) An action is committed with basic intent when the perpetrator: a) can foresee the outcome of their actions but does not accept it, believing without reason that such outcome will not occur; b) cannot foresee the outcome of their actions, though they should and could have done so.” In art. 16 paragraph (6), the Criminal code provides „(6) The act consisting of an action or inaction shall constitute an offense when committed with direct intent. The act committed with basic intent constituted an offense only when the law specifically establishes it as such.” How to find out, the new romanian Criminal code regulates exlicitly the basic intent with foresight and the basic intent whidout forsight. The Criminal code does not regulate other approaches of basic intent, which are analyzed in doctrine. However, these are reference points to be taken into consideration when the judiciaries analyze the criminal guilt whenever an offence has been committed under the criminal law. [ABSTRACT FROM AUTHOR]

In art. 16 paragraph (1) - (4), the new Romanian Criminal Code refers to some psychological processes, such as representation and willpower, which lead us to believe that the psychological theory of guilt has been preserved, being also mentioned in art. 19 in the old Criminal code. This theory of guilt has known many tendencies over time, entering our doctrine and legislation as the theory of representation. According to this theory when someone wants to do a certain physical act he foresees the consequences of that act, meaning that in his mind he has the representation (the image) of the natural consequences following that activity, and this representation of the result, the finality of the willful activity, is an act of conscience accompanying the act of will. These are reference points to be taken into consideration when the judiciaries analyze the criminal guilt whenever an offence has been committed under the criminal law. [ABSTRACT FROM AUTHOR]

Copyright of Judges Forum Review / Revista Forumul Judecătorilor is the property of Editura Universitara and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Judges Forum Review / Revista Forumul Judecătorilor is the property of Editura Universitara and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Judges Forum Review / Revista Forumul Judecătorilor is the property of Editura Universitara and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

By the judgement passed in the criminal case no. 754/2012, the High Court of Cassation and Justice held that, where the provisions of Article 3201 Code of Criminal Procedure are applicable, honest behaviour during the trial, consisting in the admission of having committed the acts retained in the document instituting the proceedings, cannot be considered a legal mitigating circumstance, referred to in Article 74 para. (1) (c) thesis II of the Criminal Code. This interpretation is questionable, because there is a legal difference between the two institutions, which doed not preclude their concomitant application. [ABSTRACT FROM AUTHOR]

The author examines broadly the problem of tentative in case of complex offence with an exceeded intention, analyzing different thesis that exist in doctrine and case-law. In the end, the author agrees with the idea that in this hypothesis should be applied the rational solution of breaking the complex offence and treat independently the component offences. [ABSTRACT FROM AUTHOR]

By decision no. 26 of October the 12th, 2009 of the High Court of Cassation and Justice, it was admitted the appeal in the interest of law, interpretation and unitary application of the provisions of art. 184 paragraph 4 from Criminal Code and art. 87 paragraph 1 from O.U.G. no. 195/2002 regarding road traffic, republished, it was established that the two offenses will be taken cumulatively if the constitutive elements are met for both of them. In another similar case, by decision no. I of October the 15th, 2007, it was admitted the appeal in the interest of law and it was established that the third degree murder, in conditions stipulated in the art. 178 paragraph 3 thesis I from Criminal Code is a complex offense comprising the offense stipulated in art. 87 paragraph 1 from Government Emergency Ordinance no.195/2002. [ABSTRACT FROM AUTHOR]

The present study aims at drawing distinctions between the offence settled by art. 7 of Act no. 39/2003, the one set out in art. 8 of the same act and the offence provided by art. 323 in the Penal Code. The urge of such an approach resides in the contradictory decisions to be found in case-law as well as in the apparent insufficiency of criteria expressly defined by the legislator, which should be specific for each said offence. Such analysis is compulsory since the different legal qualifications of criminal acts entail not only different legal limits of penalties, but also different jurisdictions, both as regards the investigation authorities and the law-courts. The essential borderline is that between the criminal organized group, which is the structured group, made up of three or more persons, lasting for a given period of time and acting by coordination with the aim of committing several serious offences (felonies), in order to obtain directly or indirectly some financial gain or other valuable consideration and the criminal group occasionally formed with the aim of immediately committing one or several offences, having no continuity, no determined structure and no pre-established roles for each member and within the group. A distinctive feature of organized crime, which is not provided by its legal definition, is especially the use of violence and constraints of any type, in order to achieve the purpose of the group, ensure internal discipline and secrecy of operations. An important element, though not essential in proving the nature of the offence as being perpetrated by an organized group is the use of such methods, accordingly identified by the courts. In case the criminal organized group aims at committing a single offence, this situation calls for a more attentive distinction between conspiracy, i.e. plural offenders acting with the precise purpose of committing offences and collusion (an understanding between two or more persons to commit an illegal act). The legal doctrine has established that, when such distinction is aimed at, three legal hypotheses should be taken into account, namely: a) several persons have associated and agreed to commit several offences, either determined or not; b) several persons have previously agreed to commit a single offence (occasional conspiracy/unlawful agreement); c) there has occurred a simultaneous agreement between the persons taking part at the commission of the offence, i.e. without prior reflection or association before committing the offence (simultaneous conspiracy/unlawful agreement); The doctrine also states that in the first two situations, courts should rule on concurrence of offences, thus including the standalone offence of conspiracy and only in the last case the courts should rule on collusion. Although the quoted author addresses the offence of conspiracy, the same legal comments could also be made in case of the criminal organized group. What needs to be added to this statement is that not all offences committed by several persons acting on prior unlawful agreement necessarily lead to the conclusion of conspiracy, but it is essential for the other requirements to be fulfilled as well, i.e. structure, hierarchy etc. [ABSTRACT FROM AUTHOR]