Sentencing Judgment

Author(s): Albulena Hajdari / Language(s): English Issue: 1/2019

The sentencing judgment is a meritorious judgment by means of which the court resolves a criminal case being object of trial. Hence, by this type of judgment the court concludes criminal case, by punishing the defendant for all charges. The sentencing judgment within this scientific paper shall be handled in several aspects. Here, shall be reflected the meaning of sentencing judgment, its characteristics, the content of sentencing judgment and the authority regarding its imposition as well as the procedure and effects of this type of judgment. Also, within this scientific paper shall be handled the Kosovo Basic Courts activity in relation to imposition of this type of judgment during the period of time 2015-2017. During the preparation of this scientific paper I have used legal, comparative, analysis and statistical methods.

Special Investigative Opportunity

Author(s): Azem Hajdari,Albulena Hajdari / Language(s): English Issue: 1/2019

The special investigative opportunity is a special procedural action that can be exercised during the investigation phase of the concrete criminal case, and through it contributes to the efficient processing of that case. This criminal procedural action consists in taking witness testimony or finding and opinion of the expert, for situations when it is expected that they will not be present in the main trial and it will be handled in terms of determining the meaning and criteria to be met for its implementation, procedure and authority that could set and enforce it, actions that guarantee criminal procedural efficiency and human rights during its implementation and the importance of this procedural action within the criminal procedure. The topic of this article focuses on Kosovo. During the preparation of this article, I applied the legal, historical, comparative and descriptive method.

RELATIVISM AND ANTHROPOLOGY

Author(s): Lazăr Popescu / Language(s): English Issue: VII/2013

This intervention wants to establish a link between the relativist attitude of postmodern philosophy which denies the philosophic basis (grund, arché) and the anthropology of the sacred or the fundamental anthropology of René Girard who states that any establishment of a human culture is violent, sacrificial.

O controversă din gândirea juridică europeană: doctrină juridică și/sau știință juridică?

Author(s): Ion Craiovan / Language(s): Romanian Issue: II/2014

Comunicarea de față propune câteva analize și considerații privind familia de cuvinte: doctrină juridică -știință juridică- cunoaștere juridică, în privința semnificațiilor și sensurilor vehiculate în special în spațiul teoretic european și românesc. Astfel, dacă termenii de doctrină juridică și știință juridică, ambii folosiți, -așa cum se știe-, în demersurile teoretice privind dreptul, sunt sinonimi, îi putem folosi aleatoriu sau există argumente de a folosi preferențial, doar unul dinte ei, în funcție de context? Dacă sunt diferiți sau există o identitate parțială, în ce constau diferențele de semnificație și sens și care sunt implicațiile epistemologice în privința cunoașterii juridice? Ce relații există între doctrina juridică- știința juridică- cunoaștere juridică? Nu propunem așadar, doar simple considerații lingvistic- etimologice sau pur epistemologice. Încercăm să argumentăm că, soluția adoptată controlează decisiv modul cum sunt înțelese cunoașterea juridică, natura și potențialul acesteia, cu implicații majore asupra practicii juridice și sociale. Conchidem, în urma sumarelor considerații prezentate, asupra coexistenței sintagmelor "doctrină juridică" și "știință juridică" în câmpul cunoașterii juridice contemporane și nu se pune problema repudierii uneia sau alteia. Dar, accepțiunile vehiculate nu au toate aceeași valoare epistemologică și pendulează în funcție de context de la inacceptabil, la nociv sau dezirabil. Aceste sintagme pot cunoaște o identitate de spirit în contemporaneitate, în măsura în care doctrina juridică promovează specificitatea fenomenului juridic, dar este deschisă achizițiilor științei și filosofiei contemporane, prin abordări complexe, arsenal metodologic interdisciplinar, prin acceptarea faptului că practica juridică implică la modul inerent o teorie juridică, prin aspirația a noi grade de științificitate, inclusiv în problema prospectivei dimensiunii juridice a viitorului, prin integrarea în rețeaua generală a cunoașterii

COORDINATES OF THE PHILOSOPHY OF RIGHT

Author(s): Nicolae Culic / Language(s): English Issue: III/2015

The philosophy of right cannot disregard in defining its profile the general coordinates of any philosophy: knowledge and valorization. Thus, the two problematic directions of the philosophy of right are covered in a unitary manner: conceptual analysis and theory of justice.

Ways to Establish Social Order in Ancient Chinese Thought

Author(s): Nicolae Culic / Language(s): English Issue: VII/2019

In ancient Chinese thought, socio cosmic ordering presupposes human action, which is not its creator but merely responsible for its maintenance.The moral and political juridical order is achieved and maintained either by (non action), by (ritual) or by law (fa).

Birocraţia în economie şi societate

Author(s): Horia Ciocan / Language(s): Romanian Issue: 1/2017

Max Weber’s work Economy and Society published in Germany in 1922 is considered the most important sociological book of the XXth century. As this work of Weber’s deals with multiple topics as politics, economics, history, public administration, and it hasn’t been yet translated into Romanian, I’ve chosen in this article to translate and make a synthesis of the XIth chapter of Economy and Society (University of California Press, 1978) regarding bureaucracy. The chapter the synthesis I’m presenting can be found in the second volume between the pages 956 to 1003.

Stadiul actual al eticii în domeniul inteligenței artificiale

Author(s): Claudiu Marian Drăgușin / Language(s): Romanian Issue: 03/2020

The present study aims to emphasize the current state of the principles of ethics in the field of artificial intelligence world-wide, respectively in the Western world (especially the European Union and the United States of America), Russia and China. The author set out to create the necessary debate framework for the importance of raising awareness of this area and of its impact on everyday life. Finally, the study also presents the author’s conclusions on what is ethically important at its intersection with the field of law. Being a new constituent element of contemporary reality, artificial intelligence can no longer be ignored. It is obvious that at present there are missing the binding regulations which give an adequate answer to the problems generated by the arising and functioning of artificial intelligence. Due to the extraordinary, unknown, even unpredictable implications, it will not be possible to create the specific legislation in such a way as to meet the expectations unless a rigorous ethical analysis is done in advance. The study identifies documents issued by state authorities and private entities in which an ethical perspective is taken in relation to the field of artificial intelligence and draws a conclusion on its importance. The author also offers his own perspective on the important ethical principles, in particular, from the perspective of the legal field.

O POLITIČKOJ POZADINI RANE SRPSKE RECEPCIJE FRANCUSKE SOCIOLOŠKE ŠKOLE I METODA U PRAVU

Author(s): Marko Božić / Language(s): Serbian Issue: 1/2020

Cilj rada je da rasvetli političku pozadinu kritike kojoj je srpska teorija državnog prava početkom XX veka izložila francusku sociološku školu i metod. Polazna pretpostavka je da upravo ta kritika najbolje razotkriva konzervativno lice srpske teorije državnog prava Slobodana Jovanovića, Živojina Perića i njihovih učenika. Zasnovana na pojmovima društvene svesti kao izvora prava, te stvaralačke uloge sudova i slobodnog naučnog istraživanja prava, sociološka škola bila je nespojiva s etatističkim i elitističkim licem srpske teorije državnog prava – zagovornice snažne države kao jedine suverene vlasti pozvane da proizvodi pravo. Time rad ne doprinosi samo boljem razumevanju uslova i dometa recepcije sociološkog metoda u srpskoj pravnoj nauci već i kritičkoj analizi njenog ideološkog utemeljenja.

Originalitatea într-o dimensiune juridică şi non-juridică

Author(s): Nicoleta Rodica Dominte / Language(s): Romanian Issue: 1/2020

Originality is the legal criterion on the basis of which copyright protection is recognized. The legal construction of the originality of a work was drawn by writers in the second half of the XVIII century. Thus, a concept of romantic origin came to be transposed and systematized in the framework of law in the desire to legally paint a reality of the authors of original works. The current legal interpretation of originality is based on theories, which have been stated by writers. In this juridical-literary intertwining, we want to create the content of the article.

Pledoaria sau greutatea cuvintelor în balanţa echităţii

Author(s): Oana Munteanu / Language(s): Romanian Issue: 1/2020

The legal style has undeniably undergone a long evolution and the art of pleading has been recognized since ancient times through the consecration of Demosthenes's speech Against Meidias or Cicero’s Speech for Aulus Licinius Archias, the Poet as a standard of modern legal discourse today. The purpose of the present article is to discover, through a historical-legal-literary analysis, whether and to what extent the pleading lawyer represents a scholar, a thoroughly knowledgeable figure of legal science, or whether he should also have rich general knowledge, be skilled in rhetoric, sociological matters and even acting. By referring to the current socio-normative context and to the types of cases, i.e. civil, criminal or those including members of the jury, we aim at identifying the best method that a lawyer should apply to his speech, the concise or exhaustive one. The incursion has, as a starting point, the establishment of the position that the plea occupies among legal discourses and if the doctrine consecrates a distinct category to it, or on the contrary, it finds a place in a subjacent category, that of the auxiliary discourses, respectively. Further on, we will focus our analysis on the structure of the plea by comparing the classical structure that it must contain with that of the analysis of a narrative text, by highlighting the common points and the elements of inspiration of the former category in the latter one. With the help of several pleas whose significance and inspiration are still present, we will identify and extract the stylistic elements used by the great lawyers in their final speech. The conclusions are reserved for ascertaining the possible techniques of adaptability of the plea, as well as for establishing its role regarding the final solution.

ROLUL AVOCATULUI ÎN SOCIETATEA CONTEMPORANĂ

Author(s): Agata Mihaela Popescu / Language(s): Romanian Issue: 42/2020

Although we are talking about a liberal profession, being a professional lawyer involves many restrictions and responsibilities, but we can not deny that more and more lawyers choose to be professionals at this time and it is not surprising, taking into account that this profession has always been well seen, as lawyers, along with doctors, engineers, architects, etc. professionals set the tone for a mature society. Do lawyers play a fundamental role in contemporary society? We will find out in the following rows.

Structura dreptului

Author(s): Nicolae Popa / Language(s): Romanian Issue: 01/2021

The concepts with which the theory of law operates are far from being the result of some philosophical speculations, without any connection with the concrete relations of the social life. Although eminently deductive, the science of law, as a whole, does not operate only deductively, without reference to facts, data of reality. In last analysis, the theoretical constructions formulated by the science of law (or legal sociology) are the result of a succession of inductive and deductive steps. A good knowledge, explanation and interpretation of law (of the legal phenomenon, more broadly) requires an appropriate methodology, based on which to achieve a scientific understanding of the mechanism of the social action of law, its functions, essence, content and form. In the conditions of the current scientific and technological evolution, there are happening profound transformations – of structure, of method, of vision – which determine that also the scientific research go through a fruitful mutation. From this methodological perspective, the author aims to address some essential aspects of the structure of law.

Publicistica juridică românească: tradiții, starea actuală și revirimentul așteptat

Author(s): Mircea Duțu / Language(s): Romanian Issue: 01/2021

The 150th anniversary from the issue of „Dreptul” magazine, edited by Societatea Juridică (1871), the first representative publication, with a „programme” in the matter, represents the occasion to review the evolution of the juridical literature as vector of the science and culture of law in Romania, to capture its current state and to prefigure the perspectives of development. The juridical press has emerged and developed in our country as a tool for promoting knowledge of law, through the dissemination of the case law, the affirmation of the doctrine and of the dialogue of ideas. After an initial period marked by the spirit of imitation related to the massive legislative import that characterized the establishment of the foundations of the Romanian juridical modernity after 1859, the interwar juridical unification (judicial, constitutional-legislative, at the level of the regime of juridical professions and of the juridical higher education) favoured the transition to its own literature in the field and a national juridical culture with strong original and identity accents. Marked by a certain eclipse and by a perspective „planned” between 1949–1989, it experienced a strong recovery after 1990 by resuming its issue in new editions, along with Dreptul, and of the other two landmarks genre: Curierul Judiciar (founded in 1892) and Pandectele Române (since 1921) and the issue of new ones, currently facing the low tide and the unexpected challenges of the accelerated digitalization and neoliberal globalization.

Dreptul financiar – ramură transversală de drept

Author(s): Ioana Maria Costea / Language(s): Romanian Issue: 01/2021

A holistic analysis of a branch of law often tends to assert its autonomous character and to confirm punctually particularities, exceptions and derogations. Starting from this premise, an inventory of the financial law institutions reveals, indeed, the same autonomy. A closer analysis reveals unsuspected, masterfully built networks of communication between the financial law and the other branches of law. This communication is not eminently delimitative, but confirms our intuition announced in the title of the transversal vocation of the financial law. This conductive behaviour is confirmed on a horizontal axis, related to the national normative space, but also on an extremely consistent vertical axis in the normative framework of the European Union.

TEORII DESPRE DREPTUL NATURAL ÎN ANTICHITATE ȘI EVUL MEDIU

Author(s): Arthur Mihăilă / Language(s): Romanian Issue: 4/2020

Natural law philosophers believe that human laws must be defined by moral principles that have origins in human nature or the will of God. In this paper the author analyzes the most important natural law theories from Antiquity and Middle Ages. Natural law tradition has its roots in the philosophy of Plato, Aristotle, Cicero, Saint Augustine and Thomas Aquinas. That philosophy was resuscitated in the twentieth century after the Holocaust and continues to be influential to the present day.

Procesul lui Iisus – cronica unei erori judiciare... anunțate!

Author(s): Liviu-Bogdan Ciucă / Language(s): Romanian Issue: 04/2021

K dotváření práva cestou analogie aneb jak zvýšit legitimitu a prosystémovost analogické argumentace v právu

Author(s): Katarzyna Žák Krzyžanková / Language(s): Czech Issue: 1/2021

The article presents the current state of knowledge regarding the use of analogy in domestic jurisprudence, with the aim of outlining its place and role in the process of finding the law. The performed analysis makes it possible to identify two main functions that the analogy performs, namely the heuristic function and, under certain circumstances, the legitimization function. If the analogy is to constitute a legitimate and retrospectively verifiable instrument of filling statutory gaps, the reasoning behind its use in a case under consideration must be presented in a logical form, which means the premises lying behind the argumentation by analogy must be reconstructed. Therefore, a deciding authority should, in particular, deal with a question of why the given case was a so-called analogous situation in law, justify the choice of the source of analogy (a particular legally regulated case or legal principle), and the way to resolve discrepancies between the case under consideration and the analogous one. The article concludes with an overview of the main problems that deciding authorities should pay attention to in situations where they fill statutory gaps using analogy, in which case their resolutions can be expected to increase the pro-systemic approach to law in the processes of law finding.

Aspecte ale Deconstrucţiei

Author(s): Anthony D'Amato / Language(s): Romanian Issue: 1/2021

THE IMPORTANCE OF THOUGHT EXPERIMENTS

Author(s): Dragana Ćorić / Language(s): English Issue: 2/2021

Living in the world of legal norms seems to be easy: you have rules of conduct guiding you how to behave in a lot of life situations including the fact what will happen to you if you do not obey these rules. In a way, legal norms are predicting the future giving us the guidelines for living. Although the legal system together with its rules tend to cover all areas of social life, there are situations that couldn’t be foreseen at the time of making a particular regulation. These gaps could be spanned by adopting subsequent rules of conduct. In order to predict an event that may occur, and to predict human behavior in these situations as well as a human response to punishment when someone violates a rule, it is good to conduct- a thought experiment. The basis of a thought experiment can be a completely fictitious and even currently impossible event, or a variation of some of the known and possible events. The key question when formulating a thought experiment is “what if”. The answers to this question may start with “then it is possible”, “then it will be”, “it could be” or something similar. The answers will differ in terms of content only on the basis of the values, beliefs and attitudes of the one who answers the “what if” question. In our paper, we will briefly present the concept of a thought experiment, its internal structure, types and, by giving some examples, encourage readers to be more informed about this topic.