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Judicial assessment of the medical forensic expert report. Empirical study 司法鉴定医学法医专家报告。实证研究
Pub Date : 2023-05-01 DOI: 10.52277/1857-2405.2023.1(64).07
Vasile Sarpe, Victor Rotaru
The analysis of the judicial practice shows that the medical forensic expert report represents a decisive evidence in the criminal proceedings, regarding crimes against the life and health, provided by articles 145-163 of the Criminal Code of the Republic of Moldova. Thus, the study carried out allows us to conclude that the medical forensic expert report can determine the court’s decision in criminal cases brought to trial. At the same time, the present study allows us to better understand how a medical forensic expert report can influence the qualification of a crime, but also the occurrence of errors in this process, therefore the study pursues the goal of reducing the number of that type of errors.
对司法实践的分析表明,医学法医专家的报告是摩尔多瓦共和国《刑法》第145至163条规定的危害生命和健康罪的刑事诉讼中的决定性证据。因此,所进行的研究使我们能够得出结论,法医专家的报告可以决定法院对提交审判的刑事案件的裁决。同时,本研究使我们能够更好地了解医学法医专家报告如何影响犯罪的资格,以及在此过程中错误的发生,因此本研究的目标是减少这类错误的数量。
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引用次数: 0
Revocation, replacement and termination by law of preventive measures deprived of liberty 依法撤销、替代和终止被剥夺自由的预防措施
Pub Date : 2023-05-01 DOI: 10.52277/1857-2405.2023.1(64).05
Ghennadi Epure
Revoking, replacing or ceasing preventive measures on legal grounds is a procedural institution inherent in coercive procedural measures, which allows the court, as well as the prosecutor to release the accused or the defendant, as appropriate. This procedure is regulated by art. 195 of the Criminal procedure code and requires to be explained practically: how the release is carried out while the accused/ defendant is kept under preventive arrest or home arrest, in order to avoid the breach of the right to liberty and security, as enshrined in art. 5 of the European Convention on Human Rights.
基于法律理由撤销、替换或停止预防性措施是强制性程序措施所固有的一种程序制度,它允许法院和检察官酌情释放被告或被告。这一程序是由法律规定的。《刑事诉讼法》第195条的规定,并要求实际解释:如何在被告/被告被预防性逮捕或软禁的情况下进行释放,以避免违反第1条所载的自由和安全权利。《欧洲人权公约》第5条。
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引用次数: 0
Judicial control of criminal prosecution in the second degree of jurisdiction – controversies and regulatory opportunities 司法控制刑事诉讼管辖权的第二个层面——争议与规制机会
Pub Date : 2023-05-01 DOI: 10.52277/1857-2405.2023.1(64).06
Tudor Osoianu, D. Ostavciuc
The authors operate theoretical interpretations of the rules of procedure applied by the investigating judges, as well as by the courts that exercise judicial control of the criminal investigation in the second degree of jurisdiction. The judicial control of the prejudicial procedure is carried out not only by the investigating judge, but also by the judges of the specialized panels of the appeal courts, who examine the appeals filed against the decisions of the investigating judges in the cases provided for by law. It was equally sought to ensure the balance between the general public interest of effective investigation of crimes, on the one hand, and on the other hand, the respect of the fundamental rights and freedoms of all persons, who were willingly/nolently brought into the sphere of criminal justice. It is opted for the revision of the procedure of judicial control of the criminal prosecution primarily through legislation. In this sense, it is proposed that a separate article regulates the written rule procedure for examining the appeal on all conclusions pronounced by the investigating judge during the investigation, apart from those expressly indicated in art. 311 CPC.
作者对调查法官以及对二级管辖权的刑事调查行使司法控制的法院所适用的程序规则进行了理论上的解释。对偏向性程序的司法控制不仅由调查法官执行,而且也由上诉法院专门小组的法官执行,他们审查对法律规定的案件中调查法官的决定提出的上诉。它同样力求确保一方面是有效调查罪行的一般公众利益,另一方面是尊重所有自愿/自愿进入刑事司法领域的人的基本权利和自由之间的平衡。对刑事诉讼司法控制程序的修改主要是通过立法的方式进行的。在这个意义上,建议另订一条,规定审查对调查法官在调查期间宣布的所有结论提出上诉的书面规则程序,但第十条明确指出的结论除外。311年中国共产党。
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引用次数: 0
Illegal character of access to computerized information: condition for application of art. 259 of the Criminal Code of the Republic of Moldova 计算机信息获取的非法性质:艺术应用的条件。《摩尔多瓦共和国刑法》第259条
Pub Date : 2023-05-01 DOI: 10.52277/1857-2405.2023.1(64).01
Alexandru Strimbeanu
Access to computerized information is illegal, if it is carried out either without authorization by law or contract, or exceeding the limits of authorization, or without the permission from a competent person to use, administer, or control a data system or to conduct scientific research or to perform any other operation in a data system. In order for access to computerized information to be considered legal, the presence of not only legitimate purposes, but also all other conditions that ensure compliance with legality is necessary.
未经法律或合同授权,或超出授权范围,或未经合格人员许可使用、管理或控制数据系统,或进行科学研究或在数据系统中执行任何其他操作,使用计算机化信息是非法的。为了使获取计算机化信息被认为是合法的,不仅需要有合法的目的,而且还需要有确保遵守合法性的所有其他条件。
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引用次数: 0
From the rationalism abandonment to the return to rationality 从抛弃理性主义到回归理性
Pub Date : 2023-05-01 DOI: 10.52277/1857-2405.2023.1(64).03
Valentin Margineanu
The article represents a plea for the return to rationality in law by approaching the fundamental aspect, the material aspect of rationality in law, that rationality which allows the identification of criteria for evaluating the legitimacy of law and the relationship between Law and Act. In this context, a historical retrospective of the evolution of the concept of rationality in law is carried out, which demonstrates the need to continue this theoretical approach until it becomes a reality in the conditions in which we aim to overcome the gap between the theoretical and applied framework, and the getting out of the crisis of law. Also, the vital necessity to return to rationality in law is justified, including through practical but also scientific arguments. At the same time, the study represents an appeal, a call to return to rationality and responsibility in the knowledge and application of the law and to continue efforts in order to achieve this desideratum.
本文通过探讨法律合理性的基本方面,即法律合理性的物质方面,即允许确定评估法律合法性和法律与行为之间关系的标准的合理性,代表了对回归法律合理性的请求。在此背景下,本文对法律理性概念的演变进行了历史回顾,表明在我们旨在克服理论框架与应用框架之间的差距,走出法律危机的条件下,有必要继续这种理论方法,直到它成为现实。此外,在法律上回归理性的至关重要的必要性是合理的,包括通过实践和科学论证。同时,这项研究代表了一种呼吁,呼吁在认识和适用法律方面恢复理性和负责任,并继续努力实现这一愿望。
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引用次数: 0
The objective side of the crime of illegal enrichment 非法得利罪的客观方面
Pub Date : 2022-12-01 DOI: 10.52277/1857-2405.2022.4(63).04
Petru Virlan
The crime of illicit enrichment was, is and will not lose its relevance in the context of the development of social, economic and political relations. Given the fact that in the composition of this crime we find a specific element, which refers to the manner of committing the crime by a person with a position of responsibility or by a public person, we consider it imperative to report on this fact and to we come with clarifications, as well as to establish the factors that formed the basis of the formation of this element without which it is not possible to incriminate the crime. We support the idea that this aspect should be discussed in the context of the numerous criminal cases initiated on the basis of this article, and which often cause difficulties for the criminal investigation body.
在社会、经济和政治关系发展的背景下,非法致富罪过去是、现在是、将来也不会失去其相关性。鉴于组成的犯罪我们找到一个特定的元素,指犯罪的方式通过一个人的责任或公众人物,我们认为它必须报告这一事实,我们来澄清,以及建立的基础因素,形成了这个元素的形成没有控告犯罪是不可能的。我们支持这样一种看法,即这方面应在根据本条提出的许多刑事案件的背景下加以讨论,这些案件往往给刑事调查机构造成困难。
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引用次数: 0
The presumption of innocence in the system of legal presumptions 法律推定制度中的无罪推定
Pub Date : 2022-12-01 DOI: 10.52277/1857-2405.2022.4(63).01
Tatiana Vizdoaga, Iulia Bria
The essence of the presumption of innocence does not consist in the fact that the accused, as a rule, is innocent, but it assumes that as long as we do not have a definitive sentence of conviction, there is no legally guilty person of committing the crime. The importance of this rule for the construction and democratic functioning of the criminal process, as well as for the defense of persons held criminally liable, is difficult to overestimate. The person’s guilt is not considered proven and he cannot be recognized as guilty of committing the crime and, respectively, subject to any restrictions on his rights, except for those related to the investigation of the criminal case, the grounds and order of application of which are strictly regulated by law. Introduction the presumption of innocence in the Code of Criminal Procedure as a general principle did not by itself remove all the deficiencies regarding the proper application of this principle in the practical activity of law enforcement bodies. This is not only due to the lack of desire of the participants in the process to comply with the rules derived from this principle, thus complicating the activity of research and discovery of crimes, but also due to reasons of improper perception, distorted of its essence. The correct understanding and interpretation of the essence and peculiarities of the presumption of innocence, the problems related to its application, is impossible without an incursion into the matter of legal presumptions and without determining the place of the presumption of innocence in their complex system.
无罪推定的本质并不在于被告通常是无辜的,而是假设只要我们没有明确的定罪判决,就没有在法律上有罪的人犯了罪。这一规则对于刑事诉讼程序的构建和民主运作,以及对于被控刑事责任的人的辩护,其重要性无论怎么估计都不为过。该人的罪责不被视为已被证实,他不能被承认犯有罪行,并分别受到对他的权利的任何限制,但与调查刑事案件有关的权利除外,其理由和适用程序由法律严格规定。在《刑事诉讼法》中引入无罪推定作为一项一般原则本身并不能消除在执法机构的实际活动中适当适用这一原则方面的所有缺陷。这不仅是由于过程中的参与者缺乏遵守这一原则所衍生的规则的愿望,从而使犯罪的研究和发现活动复杂化,而且也是由于认识不当,歪曲了其本质的原因。正确认识和解释无罪推定的本质和特点及其适用问题,离不开对法律推定问题的介入,离不开对无罪推定在其复杂制度中的地位的确定。
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引用次数: 0
Judicial review of the legality of decisions of the General Meeting of Members of the Limited Liability Company 对有限责任公司股东大会决议合法性的司法审查
Pub Date : 2022-12-01 DOI: 10.52277/1857-2405.2022.4(63).06
Ana Bagrinovschi
An essential principle of the rule of law is the principle of legality, which implies compliance with the Constitution and the normative acts by all subjects of law, including and in their capacity as participants in the civil circuit (natural persons, legal persons). A limited liability company is a legal subject from the date of its registration in the State Register of Legal Entities until the date of its removal from the Register, and in the period between these two dates it must live its ‘life’, operate and function in full compliance with the provisions of the relevant legal acts. This requirement applies both to the company as a legal person and to its structural elements (general meeting of shareholders, administrator, board, board of auditors, members, etc.). The actions of the organs of the legal person are considered actions of the legal person itself if they have been carried out in compliance with the legal provisions. If there is any doubt, those with a legal interest are entitled to apply to the competent courts to verify the legality of legal acts (decisions, resolutions, contracts, etc.) and, if necessary, to ask for them to be remedied - including having them declared null and void.
法治的一项基本原则是合法性原则,这意味着所有法律主体,包括其作为民事巡回诉讼参与人(自然人、法人)的身份遵守《宪法》和规范性行为。有限责任公司自其在国家法人登记簿上登记之日起至其从登记簿上注销之日止为法律主体,在这两个日期之间,有限责任公司必须完全按照相关法律行为的规定度过其“生命”,经营和运作。这一要求既适用于公司法人,也适用于公司的结构要素(股东大会、行政管理人员、董事会、审计委员会、成员等)。法人机关的行为符合法律规定的,视为法人本身的行为。如果有任何疑问,有法律利益的人有权向主管法院申请核实法律行为(决定、决议、合同等)的合法性,并在必要时要求予以补救- -包括宣布其无效。
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引用次数: 0
Classification of special investigative measures 特别侦查措施的分类
Pub Date : 2022-12-01 DOI: 10.52277/1857-2405.2022.4(63).02
Vitalie Jitariuc
Issues relating to the classification of special investigative measures are of substantial importance to the theory and practice of special investigative work. The specialized literature records certain attempts regarding the arrangement of special investigative measures by categories and groups based on different grounds, but, in total, the issues related to the classification of special investigative measures have been insufficiently studied in the theory of special investigative activity, from which consideration they follow to be subjected to substantial scientific research. Likewise, the operative-investigative doctrine does not highlight a certain opinion regarding the classification of special investigative measures. This happens because the special investigative measures have an extremely diversified character, they are varied, as a result of which each specialist in the field comes up with his own classification, trying to justify it based on his own experience and knowledge that he considers relevant. The process of perfecting the notions and concepts specific to the special investigative activity must be based on logical operations, procedures and interpretations. They are of major importance for solving several questions and for carrying out various tasks of the science of special investigative activity and, first of all, for the materialization of its basic categories, to which the classification of special investigative measures is attributed. The circumstances in question determined the necessity and actuality of conducting a complex study of the classification of special investigative measures based on the analysis, interpretation and systematization of doctrinal opinions on this subject.
特别侦查措施的分类问题对特别侦查工作的理论和实践具有重要意义。专业文献记载了基于不同理由对特殊侦查措施进行分类和分组安排的某些尝试,但总的来说,在特殊侦查活动理论中,对特殊侦查措施分类的相关问题研究不足,因此考虑将其纳入大量的科学研究。同样,行动-侦查学说也没有强调关于特别侦查措施分类的某种意见。这是因为特殊调查措施具有极其多样化的特征,它们是多种多样的,因此,该领域的每个专家都会提出自己的分类,并试图根据自己认为相关的经验和知识来证明这一点。专门侦查活动的概念和概念的完善过程必须建立在逻辑操作、程序和解释的基础上。它们对于解决若干问题和执行特殊侦查活动科学的各种任务具有重大意义,首先对于实现其基本类别具有重大意义,特殊侦查措施的分类就是基于这些基本类别。所涉情况决定了在对这一问题的理论意见进行分析、解释和系统化的基础上对特别调查措施的分类进行复杂研究的必要性和现实性。
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引用次数: 0
Specific actions of the prosecutor at the stage of the preliminary hearing 检察官在预审阶段的具体行动
Pub Date : 2022-12-01 DOI: 10.52277/1857-2405.2022.4(63).03
Ion Chirtoaca
The legal basis for the examination of criminal cases before the court its submission by the prosecutor who drew up the indictment act. As a consequence of the prosecutor’s action, it is bringing the person/persons before the courts, who, from the prosecutor’s perspective, are to be held criminally liable. Therefore, the legal action determined by the submission of the indictment act is supported by an active subject, in the person of the prosecutor, from this point of view, the role of the prosecutor at the preliminary hearing phase is a complex one. Or, it is known that a first purpose of the accusation before the first instance is to hold the person liable. The above, in no way cancels the postulate that the prosecution must be legal and thorough. This study provides a through analysis of specific actions for the preliminary hearing, which the prosecutor have to exercise when the case is tried before the first court.
法院审查刑事案件的法律依据是由起草起诉书的检察官提出的。作为检察官行动的结果,它将某人或某些人告上法庭,从检察官的角度来看,他们将被追究刑事责任。因此,起诉行为的提出所确定的法律行动是由一个积极的主体支持的,即检察官本人,从这个角度来看,检察官在预审阶段的作用是复杂的。或者,众所周知,在一审之前指控的首要目的是追究当事人的责任。上述情况绝不能取消起诉必须合法和彻底的假设。本研究对预审的具体行动进行了透彻的分析,预审是检察官在一审法院审理案件时必须行使的程序。
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引用次数: 0
期刊
The Journal of the National Institute of Justice
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