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The moral is also a field of options. We can not hope about the moral pride of Superman; where there isn’t any compassion, dedication, understanding and sacrifice, there isn’t any moral. Also we do not believe in any false moral of solvent egalitarianism and of abstract universal love. At the same time, we do not retain the moral quotient of the technical license, producer of uncivilized “freedoms”. On the contrary we believe that the moral is born minute by minute on the grueling road of the daily tension, disinterested commitment in the communion.
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The article is a reasoned demonstration of the theme indicated in the title, but also a reasoned plea (on the same arguments) for the supremacy of the French language in law domain or even it is exclusive in this domain! From the examples of French specialists – belonging more or less to law and/or philosophy domain, the examples of the historical personalities who preferred French language instead of other languages, even against their own languages, the analysis illustrates, step by step the evolution of the French language towards concision and clarity, purity and consistency, but also, wait! its current decline to the status of regional language – the assault of English American is, obviously, at the origin of the hegemonic position and exclusively intolerant of the English language. From certainty to participatory, there is only one main conclusion: the rebirth of French language will not delay its appearance!
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The term “prosecuting” comes from the Latin word “procurare”, that is “the one who takes care”. According to the Romanian Explanatory Dictionary (DEX) “prosecutor” is an organ of state that supervises the compliance and the application of the laws, sending criminals to justice, supporting the prosecution before the courts and representing the interests of the state in court. The notion of “prosecutor”, in the current terminology is less used. The great French historian and philosopher, Rene David, mentions that the prosecuting institution is more a characteristic of the system of the Roman or continental law. In general the prosecuting institution has evolved, but more often they use the term Public Minister, State Service, Charge Representative or the Attorney Service.
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In this article, there are analyzed the historical circumstances in which is expressed the idea of state law and the contribution of English philosopher, John Locke, in stating that the principles that will be the basis for modern state law, namely: the supremacy of law in relation to all state institutions, the equality before the law, the sovereignty of the people, the state as the servant of the community and the executor of people’s will, the principle of separation of powers in the state. In this analysis it is highlighted the theoretical support of the ideas formulated by Locke - the theory of social contract - and how it is used to support such ideas. We appreciate that the fundamental idea that lays at the basis of the John Locke’s concept on state law is that the state is the only one defending the property of citizens, their freedom and their equality before the law.
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The theme of the paper, one of constant topicality, has become all more current to day because of the mutations that have taken in the human societies, generally terms, in moral field and specifically in the realms of law. The break with the past that we are experiencing is one of “post-duty” after the latest lecture of the post-moderns. After this, duties and obligations cease being ethical and respectively juridical tools of the human co-existence. Our attempt in the current paper is argue about the following: non-identity between duty and obligation and their fundamental nature in the unfolding of human life on Earth, in spite of there constant shifting.
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The study is focused on the main changes that Romanian legislation should suffer after the accession to the European Union. This complex transformation includes the harmonizing process between the national penal law and the community one and the implementation of the fundamental principles regarding the relation between the law systems mentioned above. These fundamental principles are: the principle of community law priority, the principle of performing all obligations with good faith, the principle of interpreting the national law according to the community law. Other principles are referring to the organizational structure, the relations between national authorities and the community institutions, and the relations among the community institutions. The study approaches the problem of European warrant and the European judicial space. The author’s point of view is that after the accession to the European Union, Romania is in the process of “Europeanization” of the criminal law.
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Although it may seem as a paradox, but in 1767, in a letter addressed to the Marquis de Mirabeau, JJ Rousseau declared his intention to find a government form to put the people above the law. Admitting the impossibility of such unnecessary step, JJ Rousseau recognized that his famous Social Contract is condemned to remain a spirit construction. The author of this article wonders, along with Otto von Gierke, if JJ Rousseau somehow imagined the Social Contract, taking as a framework the democratic ideas of his forefathers about freedom and equality, filling the frame with the contents of the Hobbes’s absolutist Contract. Such a perspective implies a lot of nuances that the author underlines in this article.
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La protection de l’environnement représente une priorité à l’échelle mondiale, dans le contexte de l’apparition de certains problèmes universels, comme: la réduction de la couche d’ozone, l’amplification de l’effet de serre, désertification, destruction des forêts, la réduction de la biodiversité, problèmes concernant toutes les nations et tous les Etats du monde. Les Etats et les organisations internationales ont adopté traités, conventions, déclarations, plans et programmes d’action contenant des principes de base de la protection de l’environnement, dans des conditions de développement durable. Une série de décisions et résolutions d’une importance capitale, comme la Déclaration de Stockholm (1972), la Convention de Rio de Janeiro (1990), la Carte Mondiale (1982) votée par l’ONU en 1982, la Convention d’Aarchus (1998) concernant le droit d’être informé, de participer à la prise des décisions et d’accès à la justice en cas de préjudice relatives à l’environnement, se constituent en un nouveau domaine, dynamique de législation. La Roumanie a signé et ratifié ces conventions, de sorte que celles-ci font partie du droit interne. En général, la notion de responsabilité, présente dans tous les domaines du droit, s’est formée et a évolué avec la société moderne, qui impose une certaine conduite à chaque sujet, qui est obligé de ne violer les intérêts généraux et les droits légitimes d’une personne et ne pas lui provoquer un quelconque préjudice. Dans le contexte de l’existence de la vie sur terre et dans le contexte des provocations permanente en vue d’assurer la survie de l’humanité, la politique de ce domaine a en vue la protection, la conservation et le développement de l’environnement. Pour atteindre cet objectif, la protection juridique de l’environnement ne saurait être séparée de l’existence de la responsabilité juridique, de la personne qui a causé un dommage ou un préjudice. Le droit à un environnement écologique, sain et équilibré, est reconnu et garanti par la législation nationale, ainsi que par celle internationale. L’article 35 de la Constitution de la Roumanie, tel qu’il a été modifié par la Loi no. 429/2003, affirme, entre autres droits fondamentaux, le droit à un environnement sain, qui est une partie d’une troisième génération de droits, appelés droits de solidarité, qui peuvent être respectés non seulement par des efforts internes de l’Etat, mais aussi par la coopération entre l’Etat et les citoyens. Par la conclusion d’un accord d’association entre la Roumanie et l’Union Européenne, entré en vigueur en 1995, la Roumanie a assumé l’acquis communautaire de l’environnement, avec ses trois droits fondamentaux (le droit d’être informé au sujet de l’environnement, le droit de participer au processus de prise de décision concernant l’environnement et le droit de solliciter la réparation des dommages écologiques, ou l’annulation d’actes administratifs illégaux a joué un rôle important dans ce processus).
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The principle of separation of powers appeared in the extent to which it felt the need to establish the constitutional regime. The symbiosis idea of democracy with the principle of separation of powers in state under the representative regime is explained by the fact that some doctrines, at the end of the century XVIII, have finally managed to subordinate the idea of Montesquieu in only one principle, namely, the principle of separation of powers. Moreover, Montesquieu was considered the father of this principle, and he claimed that the representative regime without separation of powers could lead to tyranny. Under the tradition, legislative power is granted to the Parliament. Therefore, the Parliament makes the laws for a long period or even forever, improves or repeals the existing ones. This feature of the Parliament results of both classic doctrine and from some constitutions, such as that of Romania, which in art. 61 (1) shows that the “Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country”. Under the second power, the executive one, the concept is related to the implementation of laws on individual cases. Executive power has in view the existence of two bodies: The Head of State and the Government, with clear and specific tasks set by the Constitution of Romania. Under the judiciary power, the courts punish crimes and judges litigations between private people.
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The European Court of Justice - as the Court of First Instance and, more recently, the Civil Service Tribunal - together with the national courts of the Member States represent the judicial power within the European Union. The task of this institution lies in the uniform application and interpretation of the Community law. The National courts and the public authorities are bound by the interpretation given by the Court. It has the role of the constitutional courts that are competent to solve the litigations that arise between the community institutions and the Member States or even between the Member States. The role of the European Court of Justice in the development of community law is peculiar, whereas the Court is the one who founded the idea of direct applicability of the community law in member countries of the European Union, its superiority over the national law and it developed the principle of state’s extra-contractual accountability for violation of the community law, a principle based on the priority of the community law.
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Holding responsible a person for criminal liability is necessary if he commits an act that combines, both objective and subjective aspects, the required elements of a specific incrimination rule. The transformation of simple apparent crime takes place among others, also in the existence assumption of some facts which, although it accomplishes all the objective and subjective conditions imposed in the incrimination rule, in reality there are no illicit facts, but facts permitted by the law; in such cases it will not exist offense and by consequence it will be excluded both criminal liability and punishment (example gratia: justificative causes). This category of justificatory cases, fit to transform the apparent crime expressed in removing the criminal nature of the committed act, belongs to both legitimate defense and error of fact, which are stipulated in the Criminal Code, article 44 and article 51. In our approach, however, we do not intend to deal with those two institutions of criminal law - self-defense or error of fact - but we try to express a point of view on the existence and the effects that the legitimate putative defense produces – the state resulting from the contest of the two - the institution of criminal law, less dealt with in the doctrine for the judicial practice, although we believe that it is a reality that can not be challenged.
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The paper aims to highlight how the European Court of Justice positively influenced the rules of the Romanian law, relating to the union’s freedom and the right to strike of the civil servants. In the paper there are presented the main conclusions of the Court on thematic categories of litigation. It stresses on the fact that the example of social relations in the European Union has helped the Romanian legislature to draw up the texts closer to the practical needs, that are related to the public and union’s freedom, without going through the long periods of testing the texts in social practice, which would have led to the same issues that have arisen in the practice of the European Union.
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The essential feature of the administrative contract, which is part of the concession contract, differentiates from the civil contract with at least one of the topics of administrative contract that is a physical person of public law. Thus, if the subject of civil contract can be any physical or juridical person that has full the capacity to exercise, then, in the case of the administrative contract, at least one subject must have the special “quality”, namely to be a public authority or a moral person of public law. If one of the contracting parties is a public figure and the other is a person of private law, the contract may be administrative. “This condition is necessary, but not sufficient”. By the definition given to concession in article 1 line 1 of the Law on concessions, the legislator determines not only the name of the contracting parties, which formed the juridical report (the conceded, the concessionaire) but also the subject concession contract, which makes it different from other administrative contracts. Moreover, in the article 4 of the cited law, it is determined the scope of the public authorities, juridical persons of public law that may have the quality of conceded, while article 5 provides the scope of persons who may have the quality of concessionaire.
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A state of crisis, which requires an insistent way to get back to the issue of human rights in the society, highlights the evolution of contemporary society. The situation in the issue of human rights and fundamental freedoms of man is the proof of the great spiritual cultural and moral, but also political-juridical transformations that go through the international community. This process is the consequence of political thought, where it becomes more and more crystallized the idea of the inseparable link of civilization and progress and the real and active participation of the Man in solving the political, economic, Socio-cultural, issues both within the state and all over the world. The promotion of human rights has as goal the transformation of the man from a passive observer in an actor and active participant at all the events and actions that take place in the contemporary world. The security and the respect for human rights become an inseparable condition for building up the state law and it has as effect the recognition as a democratic state at the international level. These basic ideas allow us to assert that the man as citizen and personality needs a system of legal guarantees of its rights compliance by the state, which can be accomplished through the institution of human rights. The Republic of Moldova was declared the law, democratic, sovereign and independent state, a fact that has allowed its alignment with the international standards regarding the security and the protection of the fundamental rights and freedoms of man. The General Stipulations concerning the rights and freedoms of the man and art .1 of The Constitution of the Republic of Moldova states that “the human dignity, his rights and freedoms, the free development of human personality represent the supreme values that are guaranteed”. The given importance to this problem is the standard stipulated in Article 4 of the Constitution concerning the interpretation and application of constitutional stipulations which relate to the rights and freedoms in accordance with the international standards, with the Universal Declaration of Human Rights, with agreements and other treaties to which Moldova is party. This constitutional prediction demonstrates the commitment of our state to international standards in the field, giving priority to the international regulations.
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Legality is a compulsory condition and a basic principle of the state law, expressed in strict compliance with the rules of law by all members of the society. As the authorities of public administration conducts a broad activity in the state, having as employees a large number of civil servants, it is absolutely necessary for the state to establish an adequate system of organs, endowed with control powers, that are able to ensure the legality in the administration, that is all the employees (civil servants) obey the rules of law. In order to have the compliance with the rules of law as close to the ideal, and to be obeyed by all members of society, they should pass through the citizens’ consciousness and satisfy their interests. A special role in the formation of the social conscience plays its own example. Only in the case when the clerk official obeys the rules imposed by the state, then he has a moral right to ask the same thing to the administrated one. The Republic of Moldova, according to Article 1 of the Constitution, is a state law, therefore, it is very important to ensure the development of all the principles of state law, including - the principle of legality. To this purpose, each state has its own system of control bodies, which, through a set of means, provided by law, ensure the legality of the public administration. Therefore, control over the administration is inevitable, but the nature of this control depends also on the purpose of the state.
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