Perspectives of Law and Public Administration
Volume 12, Issue 1, March 2023
Table of Contents
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Assistant professor Mejd Aures BENLALA
1. Perspectives on Fractional Reserve Banking and Money Creation/Production through the Lenses of Legal and Religious Moral Precepts and Ethics➤Abstract:Today’s financial and banking systems are built on fractional reserve banking. This article sheds light on the role of commercial banks with regards to money creation/production under this system of fractional reserve banking. After exploring the nature of the process of money creation/production, the research paper diligently scrutinizes this process through the lenses of legal and religious moral precepts and ethic. The article concludes, with solid supporting arguments, that money creation/production under fractional reserve banking is immoral, ethically wrong and harmful at both individual and societal levels, with numerous legal and religious violations at its core.
Keywords: commercial banks; fractional reserve banking; Islamic banking; legal and religious precepts; money creation.
JEL Classification:E31, E41, E42, E51, G21, K34, P48
Page 5 - Lecturer Laurenţiu DRAGU; PhD. student Denise MARTALOG
2. Comparative View on Hidden Vices and Vices of Consent (Error, Fraud) in the Hypothesis of the Sales Contract➤Abstract:The study that we will undertake is going to capture a comparative analysis of the aspects related to the vices of consent (error and fraud) and hidden vices. In practice, in the case of a sales contract, the same situation can be classified both in the category of hidden vices and in the category of consensual vices (error or fraud). So, the problem that arises in such cases is: can the buyer opt either for the liability action for hidden vices, or for the nullity in action for error or fraud, or is he obliged to promote only one of them? Specifically, the research aims to highlight the possibility that a circumstance can be qualified simultaneously as both a hidden vice and a vice of consent, also providing clarifications for the practical solution of this situation.
Keywords:hidden vice, consensual vice, error, fraud, liability action for hidden vices, action for annulment for vices of consent.
JEL Classification:K15, K22
Page 31 - Assistant professor Alexandru Cristian ROȘU
3. Freedom of Expression - Aspects of Judicial Practice Regarding Expression in a Political Context and in Relation to the Right of Politicians to Dignity and Honor➤Abstract:From the ancient oratories and politicians of ancient Athenian democracy, it has been said that "there can be no greater misfortune for free people than the loss of freedom of speech"2 (Demosthenes), and in this context, this fundamental right has always been related to nature. human rights, the development of society, including the possibility of human beings to live in a state governed by the rule of law where human rights are protected and guaranteed, or as stated in the jurisprudence of the European Court of Human Rights, freedom of expression is one of the basic conditions for the progress of society and for the development of every human being.
Keywords: freedom of expression, restrictions and limitations, positive obligations, negative obligations.
JEL Classification:K15
Page 36 - Lecturer Aurel Octavian PASAT
4. General Features Specific to Crimes against the Person➤Abstract:The economic and political development of society is always associated with the worsening of relations between its members. An extreme manifestation of the antisocial orientation of the actions of individual members of society is criminal activity. Criminality not only undermines the authority of state power, but also represents a threat both to the economic stability of society and to every citizen, that is why crimes against the person open the Special Part of the Criminal Code of Romania. Unlike previous criminal laws, this arrangement of the chapter indicates the priority of protecting the person, the group of crimes against the person being united by a single direct object, human life. The relevance of the subject of this paper lies in the fact that it highlights the specific general features of crimes against the person, in order to qualify these prejudicial acts criminalized in the articles of Title I of the Special Part - Criminal Code of Romania.
Keywords: crimes against the person, object of crimes, subject of crimes, objective side, subjective side, sanctions.
JEL Classification:K14
Page 41 - Lecturer Nela MANOLE
5. Some Theoretical and Legal Reflections on the Order of Criminal Law, the Criminal Legal Relationship of Compliance and the Criminal Legal Relationship of Conflict➤Abstract:Our theoretical approaches combined with judicial practice are motivated by the multitude of divergent opinions that have appeared in the Romanian criminal doctrine regarding these concepts. Thus, most Romanian authors, starting from the premises according to witch all legal norms are transposed by creating legal relations and otherwise ignoring the normative character and the regulatory function that criminal law has in disciplining social conduct , reach the thesis according to which there is also a criminal legal relationship of compliance , this being an expression, a form of dynamic manifestation of the social defense relations that emanated from the norm of criminal law since its entry into force. The defense of social values is achieved mainly through criminal legal means (criminal law), through extra-legal means of educational, social, cultural, economic, as well as through extra-criminal legal norms of commercial law, administrative law, labor law, of constitutional law etc. Criminal law is rightly considered the result of a dialectical process and not of an ideal creative process2. The two sides of criminal policy, namely special preventive action and repressive reaction, are achieved through criminal law mainly, which by its rules provides both the conduct to be followed by the recipients of criminal law and the necessary reaction against crime to restore order right. As such, the criminal law order is achieved by observing the provisions of the criminal law, the criminal coercion intervening only in the case of committing certain crimes. It can be noted that the legal order has a complex and dynamic character, which is a succession of plans, the preventive preceding the repressive, and the latter aimed at the corrective - in the sense of criminal treatment. It can be noted that the legal order has a complex and dynamic character, which is a succession of plans, the preventive preceding the repressive, and the latter aimed at the corrective - in the sense of criminal treatment.
Keywords: compliance criminal law report, conflict criminal law report, legal order, criminal law, doctrine, crime, criminal law rules, judicial practice.
JEL Classification:K14, K49
Page 50 -
PhD. student Liviu Alexandru NARLĂ
6. Moratory Damages and Compensatory Damages in the Context of the Return of Foreclosure➤Abstract:The disposition of the return of the forced execution by the court, following the abolition of the enforcement title or the forced execution itself, leads to the creation of a new paradigm, in which the creditor of the forced execution, whose patrimony has increased, becomes the debtor of the obligation of restitution, to the debtor of the forced execution , and which in turn becomes the creditor of the restitution obligation. The natural consequence of the solution of admitting the return of enforced execution requires the restoration of the previous situation, which will be done in the register of the general provisions provided for in art. 1635-1649 of the Civil Code. The effective method of restoring the previous situation converges on the analysis of different civil law principles, with similar valences but different effects, especially the principle of restitutio in integrum and the principle of full repair of the damage, in the perimeter of good faith and bad faith of the debtor of the restitution obligation. In the context of the civil circuit, situations may arise, in which the main method of restitution of benefits, in kind, is no longer possible, so new practical difficulties arise in restoring the previous situation, in this framework, the incidence will be analyzed for interest - moratory damages and compensatory damages.
Keywords: moratory damages, compensatory damages, restitutio in integrum, the principle of full reparation of the damage.
JEL Classification:K15, K40
Page 57 - Lecturer Ramona DUMINICĂ
7. Protection of Persons with Intellectual and Psychosocial Disabilities through Legal Counseling and Special Guardianship. The Conditions for Establishing These Measures➤Abstract:By Law no 140/2022 regarding some protection measures for persons with intellectual and psychosocial disabilities and the modification and completion of some normative acts, the Romanian legislator responded to the need for regulation in the field of protection of persons, bringing the provisions of civil legislation into agreement with the Decision no 601/2020 of the Constitutional Court of Romania. Through this Decision, the Constitutional Court declared unconstitutional art 164 of the Civil Code which stated the institution of placing under prohibition the mentally retarded or mentally alienated natural person. The Court showed in its reasoning that this institution was not accompanied by sufficient guarantees to ensure respect for fundamental human rights and freedoms, as they are enshrined in the Romanian Constitution and interpreted by reference to international treaties, in this case the Convention on the Rights of people with disabilities. Starting from the actuality and particular practical relevance of the newly created mechanism for the protection of individuals with intellectual and psychosocial disabilities, this article proposes an overview of the new measures, emphasizing in particular the distinction between the types of measures that make up the new protection system and analysis of the conditions under which they can be disposed. The study is not intended to be an exhaustive one but aims to identify the general lines in the matter, at the same time raising the question of whether the new provisions really constitute real legislative progress in the matter of civil legislation applicable to individuals.
Keywords: Law no. 140/2022, protection of adults with intellectual and psychosocial disabilities, legal advice, special guardianship.
JEL Classification:K15, K38
Page 65 - Lecturer Nqobizwe Mvelo NGEMA; Professor Desan IYER
8. Extra-Marital Children (Walad Al Zina) and Their Inheritance Rights under Islamic Law: A Comparison of Islamic Law and South African Common Law➤Abstract:Islamic law apportions different responsibilities to males and females because Allah created men with greater physical strength if compared to female counterparts. As a result of this men are mandated to be the protectors and financial providers to women and are given more inheritance if compared to women because of such responsibility. This justification of discrimination is likely to be challenged very soon. Any child born from unmarried parents and adultery (zina) is stigmatised as walad al zina (extra-marital child) for his entire life and is forbidden from inheriting an estate of his biological father. This exclusion constitutes an unfair discrimination against extra-marital children and is an affront to their human dignity. A comparison conducted shows that the South African common law does not discriminate between males and females and extra-marital child is not forbidden from inheriting the estate of his deceased biological father.
Keywords: extra-marital children under Islamic law, disqualification from inheritance, violation of equality rights.
JEL Classification:K15, K36
Page 74 - Lecturer Paul-Iulian NEDELCU
9. The Kantian, Neo-Kantian, Hegelian and Historical School Regarding the Rule of Law➤Abstract:Immanuel Kant, after formulating the inaugural dissertation - "De mundi sensibilis atque intelligibilis forma et principiis" - of the philosophy course from 1770, is no longer tributary to others, he is no longer either a rationalist or an empiricist, but surpasses both, reaching the pinnacle of a synthetic concepts that are only his. He promotes a dualistic conception and believes that there is a phenomenal world and a purely intelligible (noumenal) world. The latter is unknowable to the human intellect, which can only know the phenomenon. In this world, man can rise through morality, whose key concept is the concept of freedom. To define the concept of law, Kant first makes the distinction between what belongs to morality and what belongs to law; the distinction between what relates to exteriority and what is an internal principle that can also extend to exteriority, but never the other way around. In these conditions, law only acts on the external acts of people, those of human interiority are carried by moral acts, which are superior to the previous ones. Freedom, as seen by Kant, is based on moral acts, even if law is based on reason, it cannot extend its scope to purely internal acts, as they remain outside legal regulations. For an action to be what is called legal, it is enough that it conforms to the law, whatever its motive; but in order for it to be moral, it must, apart from this, have as its motive the idea of duty that the law prescribes.
Keywords: freedom, morality, rule of law, protection of law, doctrine.
JEL Classification:K10
Page 82 - Associate professor Valeria GHEORGHIU
10. Incursion in the Study of New Protection Measures of People with Intellectual or Psychosocial Disabilities➤Abstract:In Romania, people with intellectual or psychosocial disabilities did not have the right to marry, divorce, be parents, adopt children and could not access a bank loan. According to the law, many of these people have been banned by the courts. The current legislative reform in the field emphasizes the degree of autonomy of the protected person, respect for specific needs, will and wishes. Currently, we are witnessing a new, modern legislative approach, in accordance with the needs felt at the social level, as well as in the practice of the courts, in harmony with the international and constitutional requirements in the matter.
Keywords: protection, minor, major, tutelage, counselling, special court, mandate.
JEL Classification:K36, K38
Page 86 - Associate professor Angelica ROȘU
11. Request for Revision Declared Inadmissible in Principle, after the Constitutional Court Admitted the Exception of Unconstitutionality Invoked in That Case. Consequences in Terms of the Right of Access to the Court➤Abstract:This article aims to analyze the limits of the judgment of the admissibility in principle of the extraordinary appeal of the revision of a criminal sentence and the delimitation of the judgment of the merits of such an appeal; we will emphasize, despite some jurisprudential interpretations, that between these two stages there is a link of interdependence, in the sense that the court cannot re-judge the merits of the case in the absence of a solution to admit in principle the review request, but it cannot also reject as inadmissible basically an application for review, with arguments that prejudge the merits of this application, much less the merits of the case. Another interpretation inevitably leads to the violation of a fundamental right, that of the right of access to the court.
Keywords: exception of unconstitutionality, criminal sentence, request for revision, the Constitutional Court.
JEL Classification:K14, K41
Page 99 - Lecturer Tapiwa Victor WARIKANDWA; Professor Howard CHITIMIRA
12. “Black Magic” Practices in African Academies: A 21st Century Socio-Legal Perspective➤Abstract:Chronic levels of narcissism, animosity, envy, and a fixation with toppling individuals who are thought to be making solid academic progress have grown common in African academies. Anti-progress proponents, whose egocentric behaviour and/or tendencies are linked to “black magic” tactics, no longer regard academic competence/excellence. These African academic “black magicians” place a greater emphasis on individuals than on academic matters, spend more time hopping from one office to the next for no apparent reason, and thrive on institutional politicking. They regard hardworking colleagues as threats or “academic fetishes” who must be “exorcised” from African academies to keep incompetent/sloppy individuals who represent no threat to their positions or minor interests and whom they can manipulate. Based on an examination of legislation limiting black magic in South Africa and Zimbabwe, the article contends that intellectual jealousy, narcissistic behaviour, and other associated evil conduct emanating out of envy in African academies should be categorised as black magic or witchcraft.
Keywords: African academies, black magic, academic narcists, corridor merchants, legal anthropology.
JEL Classification:K38
Page 111 - PhD. student Florin CAZACU
13. The Public Administration and the Current Social and Political Environment in Romania➤Abstract:Before talking about the structure of the public administration in Romania, we must consider the social and political environment of our country. Romania is a country with a democratic regime and it has been so for the last 30 years, but which has been under the umbrella of communism for several decades. Communism meant a centralized, closed administrative and economic system.
Keywords: public administration, administrative law, political environment, decentralization.
JEL Classification:K23
Page 124 - Associate professor Andrada NOUR
14. Considerations Regarding the Crime of Determining or Facilitating the Suicide➤Abstract:Opposable erga omnes, the right to life is an absolute and intangible right of the human being and is protected by criminal law in the interest of the whole society, including for the purpose of ensuring human coexistence. In other words, the interest of the criminal law is to impose on all citizens the obligation to respect the life of each individual, to respect the human desire to live. Seen as an attempt on the person’s life, the act of determining or facilitating suicide could not remain outside the incrimination in the Criminal Code as a crime. The present paper is a study of this incrimination from the perspective of the defense of the right to life.
Keywords: determining or facilitating of the suicide, incrimination, Criminal Code, right to life.
JEL Classification:K14
Page 130 - Lecturer Adriana MOȚATU; Professor Ileana CONSTANTINESCU
15. Legal Issues Regarding the Compensations Granted by the Romanian State for the Children of Former Political Prisoners➤Abstract:The article refers to certain changes that need to be made to the paragraphs (5) - (9) regarding article 5 of the Decree - Law no. 118/1990 on granting rights to persons persecuted for political reasons by the dictatorship established starting with 6 March 1945, as well as to those deported abroad or constituted as prisoners, as republished in the Official Gazette, Part I no. 1208 of December 10, 2020, with subsequent amendments.
Keywords: decree-law, rights, special allowance, former political prisoners.
JEL Classification:K23, K38
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