Juridical Tribune - Tribuna Juridica

7

Authors: Associate professor Mihai Cristian APOSTOLACHE; Associate professor Mihaela Adina APOSTOLACHE

Since its entry into force and to date, Law no. 215/2001 on local public administration has undergone many amendments and completions. One of the questionable additions to this act is done by GEO (OUG) no. 41/2015, a regulation which brought two new articles to the body of the framework-law on local public administration, i.e. Article 55¹ and Article 99¹ . These two articles regulate a unique way of establishing the local or county council, namely by reconstituting these autonomous collegial bodies. This article examines the legislative intervention made by GEO no. 41/2015 and highlights the unconstitutionality aspects of this legislative intervention, recommending the legislature to urgently repeal the regulations governing the reconstitution of the local and county councils.

8

Authors: Lecturer Ileana VOICA

The work starts from the legislative framework of the principles of nondiscrimination and equality of chances between men and women in our country, presenting, at the same time, synthetically, the public authorities authorized with the application and control of the application of the law regarding the equality of chances. Given the obligation imposed by the European Directives of the E.U. member states, to modify or update the law so that all the European citizens would benefit of the same protection against discrimination, it is also presented a famous case study regarding the ethnic or religious discrimination – The Decision of the Paris Appeal Court of 19th June 2003. This cause demonstrates the good application by a French civil jurisdiction of the dispositions regarding the civil sanctions of the discriminations based on religious beliefs. However, at the level of the E.U. member states, in certain cases and fields, the legislative framework is not always enough to ensure the equality of chances, being necessary changes of mentality and behavior, as well as firm and varied political actions, in order to sensitize the involved public and institutions regarding the significance of the insurance of the application of the principles of non-discrimination and equality of chances.

9

Authors: Professor Anca-Lelia LORINCZ; Associate professor Alexandru Florin MĂGUREANU

The Code of Criminal Procedure provides some exceptions, from the general rule according to which any persons can be heard as witness, as there are certain persons that can not become witnesses in a criminal trial; these persons are as follow: persons that can not be heard as witnesses and persons that are entitled to decline to testify. We consider that the stipulations of the current Code of Criminal Procedure regarding the persons that can not be forced to testify in some criminal cases is criticisable in terms of requirements of legislative technique regarding the usage of a concise, clear style and a correct terminology. Also, in order to correlate the stipulations of the Code of Criminal Procedure with the ones of the current Criminal Code, we propose, de lege ferenda, a modification of the criminal procedural stipulations regarding the persons that can refuse to testify as witness, by using the expression “family member of the suspect or of the defendant”..

10

Authors: Assistant professor Mohammad Ali Mahdavi SABET; PhD. Student Mohammad Mehdi RAHIMI

Iran criminal law and United States of America have considered the threat as a crime and have imposed the penalty for it. The threat importance is considered in where that from one side the persons and civilians in accordance with domestic laws and international documents are involved very important right entitled of "Freedom of speech" and the mentioned rights violation is associated with domestic and foreign criminal sanctions and on the other hand, the expression of some words or commit a certain attitude with them and in accordance with the same laws are prohibited and to be considered as the criminal threat. However, the laws of both countries have adopted different approaches regarding the circumstances realization of the mentioned crime and some of its examples, although in some criminal threat characteristics such as lack of necessity to apply the means are unlawful and have similarity in its intentionality. In order to detailed understanding of the similarities and differences of criminal threats in Iran and America laws, which leads to the identification of existing disadvantages and advantages and providing the strategies regarding the deficiencies of the current laws and trends, so we are investigating the structure and threat features in criminal law of both countries.

11

Authors: Master student Miruna CONSTANTINESCU; Master student Monica Simona CORCHIŞ

This study analyses the legal force of mediation clauses in the common law systems and civil law systems with a main focus on the Romanian approach. First, the introductory section illustrates the paradox between the concept of binding and mandatory effect and the mediation mechanism, a voluntary manner to settle disputes. Notwithstanding, the possibility to coerce the parties to engage into a mediation, the voluntary character of the process is illustrated by the parties’ freedom to decide whether they settle or not. Second, the role of mediation clause is analysed and its advantages are briefly described. Third, the non-compliance of the prior mediation mechanism is presented, the starting point of the discussion being represented by the manner in which the parties drafted the mediation clause. A carefully drafted mediation clause, reflecting the parties’ consent, can determine a court or an arbitral tribunal to enforce such clause. Fourth, the study ends by mentioning the approach adopted by different national courts, emphasizing the Romanian legal perspective.

12

Authors: Senior lecturer Matthew Enya NWOCHA

This Paper is written against the background of the need to strengthen Nigeria’s tax laws for optimum contribution to public revenue and economic development in an era of widespread tax evasion and economic recession. The Paper has found among other things that defects and loopholes that exist in the Companies Income Tax Act (CITA) is the occasion for widespread tax evasion, the arbitrary and discriminatory application of the Act, and the political manipulation of the process. The result is that the Act is completely encumbered in achieving its objectives. To eliminate these encumbrances, the paper has recommended, among other things, the amendment of the law to place the wide discretionary powers of the president to impose on or exempt companies from taxation under the supervision and authority of the National Assembly and to place the powers of the Federal Board of Inland Revenue to distrain properties of defaulters under the jurisdiction of the courts.

13

Authors: Assistant professor Minodora-Ioana RUSU

In the present study we have examined the provisions of the European legal instrument governing the right of access to a lawyer within the criminal proceedings in a Member State of the European Union, especially in situations where against the person concerned it was imposed a measure of deprivation of liberty and the right to have access to consular authorities, the right to inform a third person and the right of access to a lawyer in execution proceedings of a European Arrest Warrant. With the actual examination of these provisions, we referred also to the provisions of law, emphasizing the differences of the existing regulation and the need to transpose the European legal instrument into the national law by a separate legislative act and not by completing the special law, as it is intended at the moment. The innovations consist of examining the European legal instrument focusing on the right to have access to all the criminal proceedings, with reference to relevant national legislation, including the procedure of executing a European arrest warrant. The paper can be useful to academics, practitioners in the field and to the Romanian legislator from the perspective of transposing this European legal instrument into the national law.

15

Authors: Professor Seyed Ali Asghar KAZEMI; PhD. Noushin Mirzaee JEGARLOUII

Recent developments in Arab countries have provided new opportunities and possibilities for the transformation of the political climate, security and change the balance of power in the region. Since the beginning of 2011, the Middle East has witnessed major developments and serious changes. The main changes resulting from the Arab Spring in the Middle East can be "crisis development" in the region. Different approaches have been presented on the reason of the crisis in the Middle East, especially political and security developments in Syria. By 2011, signs of civil disobedience and political upheaval in the Middle East have been observed on the agenda of planners. From 2011 onward, identity components provided the context for civil disobedience radicalization and thus social violence has been formed in the form of security policy of radicalized groups.

17

Authors: Lecturer Aurel Octavian PASAT

The study tries to highlight the specificity of the criminal laws of foreign states in the area of customs criminalization. The author discusses the criminal regulations in the laws of some Western European, Central European, Asian states, as well as in the legislation of some ex-Soviet states. The analysis carried out aims at: investigating the incriminating framework in the field of criminal offenses in the criminal law of some foreign states; determining the similarities and differences between criminal laws under analysis; identifying the legal problems by comparing the incriminating framework registered in the Criminal Code of the Republic of Moldova with those included in the criminal laws analyzed; taking good practice. Different research methods were used in the study, including: analysis, synthesis, deduction, induction. However, the most used method was comparative considering the specifics of the subject under investigation. In order to intensify the fight against the phenomenon of crime in the customs sphere, some proposals have been advanced to improve the legal framework of incrimination. All this is a consequence of taking good practices from the comparative analysis of criminal regulations in the field of customs offenses.

19

Authors: Professor Ion RUSU

In the present study we have examined the specific provisions for certain investigative measures that may be subject to a European investigation warrant in criminal matters provided for in Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014 on the European criminal investigation order. Thus, we have examined each investigative measures provided in the European legal instrument through the national legislation of Romania, as in the terms of transposition of this legislative act into the Romanian law. The examination of the European legislative act allowed us to identify some dysfunctions in the settlement of some provisions, malfunctions which in the judicial practice of Member States’ competent institutions will cause numerous problems, both of interpretation and application. Among these we only highlight the lack of concrete provisions that oblige the judicial authorities of the countries involved in the issuance and execution of a European investigation order in criminal matters, to provide legal assistance to the persons who are conducting such procedures. In this context, we have formulated a series of critical opinions, complemented by appropriate de lege ferenda proposals, which may be useful to the European legislator from the perspective of amending and supplementing this legislative act. We have also stressed on the need of transposing the European legislative act into the Romanian law by adopting a special law and not by amending some provisions of the Criminal Procedure Code. The innovations in the paper refer to the examination of the investigative measures that can be arranged by issuing a European investigation order in criminal matters, formulating some critical opinions and appropriate de lege ferenda proposals. The paper can be useful to the academics, practitioners in the field, especially to the European legislator from the perspective of amending and supplementing the European legal instrument and also to the Romanian legislator that will have to transpose this legislative act into the national law.