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Errors in the qualification of offenses in which bank cards appear as a material object (product) or as a committing mean 将银行卡作为实物(产品)或犯罪手段出现的犯罪定性错误
Pub Date : 2022-10-01 DOI: 10.52277/1857-2405.2022.3(62).01
Serghei Brinza, Vitalie Stati
The analysis of judicial practice shows that the qualification of offenses, in which bank cards appear as a material object (product) or as a commiting mean, does not always comply with the principle of legality. In the present study, by analyzing the errors of qualification of such offenses, the aim is to reduce the number of those errors. In concrete terms, the errors analyzed refer to: participation in one of the offenses provided in art. 237 CC RM; qualification of the act of purchasing (and keeping) some false bank cards; application of art. 237 CC RM for obtaining material benefits by illegally accessing card accounts, in the absence of production for the purpose of putting into circulation false bank cards; application of art. 186 CC RM for the illegal obtaining, with the help of false bank cards, of money related to card accounts.
司法实践分析表明,银行卡作为实物(产品)或犯罪手段出现的犯罪定性并不总是符合合法性原则。本研究通过对此类犯罪定性错误的分析,旨在减少此类犯罪定性错误的数量。具体而言,所分析的错误是指:参与第2条规定的犯罪之一。237毫升rm;购买(保管)部分虚假银行卡行为的资格认定;艺术的应用。237 CC RM,在没有生产的情况下,通过非法获取银行卡账户获取物质利益,以发行虚假银行卡为目的;艺术的应用。涉嫌利用虚假银行卡,非法获取与银行卡账户有关的资金,共186 CC RM。
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引用次数: 0
Mandatory judicial mediation – a failure in Moldova 强制性司法调解——摩尔多瓦的失败
Pub Date : 2022-10-01 DOI: 10.52277/1857-2405.2022.3(62).04
Veronica Cupcea, Olesea Cernolev
After 15 years of mediation in the Republic of Moldova, we note that at the moment we have fully registered 207 offices of mediation, associated offices, organizations of mediation, lawyers’ offices with certified mediators, of which 44 lawyers – mediators have suspended their activity, and 4 – have ended their activity. We tend to believe that from the rest, a large part have a certificate posted on the wall and a half-open office, because they have a basic activity that keeps them in work beside the „alternative” mediation. At the same time, we note that from April 2022 in the Republic of Moldova we have only extrajudicial mediation, because judicial mediation did not rezist, and in time some of the mediators remained too disappointed to be interested again in the future of mediation. In this article we wanted to emphasize the role and importance of the mediator, because the successful completion of the mediation largely depends on the execution of his role. We wanted to remind the principles of mediation, the benefits of mediation and a parallel between the member states of the European Union. We have the ambition to say that we need: professionalism, unity, resuscitation to increase the citizen’s trust in the mediation procedure, but at the moment it seems that the legal persons understood better the advantages of mediation, because commercial disputes are the most in the mediators’ procedure. In conclusion, the article is nothing more than an overall view of a judge and a mediator on the mediation process in the Republic of Moldova.
在摩尔多瓦共和国进行了15年的调解之后,我们注意到,目前我们已经完全注册了207个调解办事处、联署办事处、调解组织、拥有认证调解员的律师办事处,其中44名律师-调解员已暂停其活动,4名-已结束其活动。我们倾向于相信,从其余的人中,有很大一部分人在墙上贴了一张证书,有一个半开着的办公室,因为他们有一个基本的活动,使他们在“替代”调解之外继续工作。与此同时,我们注意到,从2022年4月起,摩尔多瓦共和国只有法外调解,因为司法调解没有恢复,而且随着时间的推移,一些调解员仍然非常失望,对调解的未来不再感兴趣。在本文中,我们想强调调解员的作用和重要性,因为调解的成功完成在很大程度上取决于他的角色的执行。我们想提醒大家调解的原则、调解的好处以及欧盟成员国之间的相似之处。我们雄心勃勃地说,我们需要:专业、团结、复苏来增加公民对调解程序的信任,但目前看来,法人更了解调解的优势,因为商事纠纷是调解员程序中最多的。最后,这篇文章只不过是一名法官和一名调解员对摩尔多瓦共和国调解进程的总体看法。
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引用次数: 0
The concept of access to computerized information according to art. 259 of the Criminal Code of the Republic of Moldova 根据艺术获取计算机信息的概念。《摩尔多瓦共和国刑法》第259条
Pub Date : 2022-10-01 DOI: 10.52277/1857-2405.2022.3(62).02
Alexandru Strimbeanu
The concept of „access to computerized information” refers to one of the components of the objective side of the offenses provided in art. 259 of the Criminal Code of the Republic of Moldova. The main result of the present study is the definition of this concept that generates controversies in the theory and practice of criminal law. Another notable result consists in supporting with arguments the solution to qualify the acts of: 1) maintaining illegal access to computerized information after the withdrawal or expiration of the authorization; 2) illegal intrusion into the computer, the data storage device, the computer system or the computer network, in which or on which the computerized information is located, if, due to reasons independent of the perpetrator’s will, the illegal access to that information is not committed.
“取得计算机化信息”的概念是指第2条所规定的罪行的客观方面的一个组成部分。《摩尔多瓦共和国刑法》第259条。本文研究的主要成果是对这一在刑法理论和实践中产生争议的概念进行了界定。另一个值得注意的结果是,通过论证支持了对下列行为的限定:1)在撤销或过期授权后继续非法获取计算机信息;(二)非法侵入计算机化信息所在的计算机、数据存储设备、计算机系统或者计算机网络,但由于非行为人意志的原因,没有对该信息进行非法获取的。
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引用次数: 0
Individual freedom from the perspective of detention and the principle of proportionality 羁押视角下的个人自由与比例原则
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).01
Domnița Vizdoagă
Although some limitations of the right to liberty are allowed, these measures must be applied in strict accordance with the law, guaranteeing the protection of any person against arbitrary or abusive detention, as the effects of such violations can have irreparable consequences. The detention is an extremely severe intervention of the State in a fundamental right, the mechanisms used for its application are to be subject to the strictest requirements, which determine the competence of the intervention and the means of ensuring respect for the rights of the detained person. In the present study, the detention was investigated in the light of the principle of proportionality, in order to assess the appropriateness of its conduct, analyzing the reasonable suspicion, the complexity of the criminal investigation, the nature of the crime under investigation, the conduct of the perpetrator and many other circumstances, which influences the need to limit freedom for a short time.
虽然允许对自由权进行一些限制,但必须严格按照法律实施这些措施,保证保护任何人不受任意或虐待拘留,因为这种侵犯行为的后果可能造成无法弥补的后果。拘留是国家对一项基本权利的极其严重的干预,用于实施这种干预的机制应符合最严格的要求,这些要求决定了干预的权限和确保尊重被拘留者权利的手段。在本研究中,根据相称性原则对拘留进行了调查,以便评估其行为的适当性,分析合理怀疑、刑事调查的复杂性、所调查罪行的性质、犯罪者的行为和许多其他情况,这些情况影响到需要在短时间内限制自由。
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引用次数: 0
The right to a healthy environment: the role of treaty-based supervisory mechanisms. 健康环境权:基于条约的监督机制的作用。
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).07
Iordanca-Rodica Iordanov, Valentin Roşca
A healthy environment is necessary for the full enjoyment of human rights. However, if we approach the field of human rights and its link with environmental protection, we have a unique „trident“ made up of its inseparable elements - human rights and fundamental freedoms, health and environmental protection. Considering the connection between human rights and environmental protection, we can unequivocally argue that the treaty-based supervisory mechanisms in the field of environmental protection are relevant to our study and their applicability to the human rights segment. An example in this chapter would be the international legal framework on environmental impact assessment (EIA) in transboundary areas. A remarkable success in codifying the institution of EIA in international law was the adoption of the Convention on Environmental Impact Assessment in Transboundary Areas (Espoo, 25 February 1991). In addition to the importance of the Espoo Convention for the protection of the environment, an „indirect” environmental protection mechanism is also emerging.
健康的环境是充分享有人权的必要条件。然而,如果我们研究人权领域及其与环境保护的联系,我们就有一个独特的“三叉戟”,由人权和基本自由、健康和环境保护等不可分割的要素组成。考虑到人权与环境保护之间的联系,我们可以毫不含糊地说,环境保护领域基于条约的监督机制与我们的研究有关,它们适用于人权部分。本章的一个例子是关于跨界地区环境影响评价的国际法律框架。《跨界地区环境影响评价公约》(1991年2月25日,埃斯波)的通过是将环境影响评价制度编入国际法的一个显著成功。除了《埃斯波公约》对保护环境的重要性外,一种“间接”环境保护机制也正在出现。
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引用次数: 0
The unity of crime forms in national and foreign criminal doctrine: features and objections 中外刑事学说中犯罪形态的统一性:特点与反对
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).06
Cristina Papanaga
The article analyzes the unity of crime forms, encountered in national and foreign criminal doctrine. These authors’ works explain in comparative plan the legislative formulation of unity crime, as well as to solve some collisions that appeared in practice, regarding the qualification of different unity crime forms: prolonged offense, continuous crime, complex crime, deviated crime, progressive crime, habit crime, so, using the deductive analysis in this sense. The purpose of this study is to improve the legislative framework of unity crime’s institution, together with the punishments, applicable to each unity of crime’s form.
本文分析了国内外刑事学说中犯罪形态的统一性。这些作者的作品对统一犯罪的立法制定进行了比较计划的解释,并解决了实践中出现的一些冲突,对不同的统一犯罪形式:长期犯罪、持续犯罪、复杂犯罪、偏离犯罪、进步犯罪、习惯犯罪的资格进行了演绎分析。本文的研究目的在于完善统一犯罪制度的立法框架,以及适用于各统一犯罪形态的刑罚。
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引用次数: 0
Ensuring compliance with human rights – a condition of admissibility of the results of the special investigative activity in evidence gathering 确保遵守人权-证据收集中特别调查活动结果可予接纳的一个条件
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).05
Vitalie Jitariuc
The special investigative activity is specific and diversified, of which consideration the legal aspects of this activity are multiple, special and quite varied. Various issues, assessments and opinions regarding this activity involve the resolution of a wide range of issues related to different branches of law, which determines the need for a complex investigation of a wide range of issues shaped by the special investigative activity. Also, at present, the need to scientifically perceive and interpret the provisions of the legislation on special investigative activity, its meaning in relation to judicial practice in order to solve specific tasks, established by law, has become topical. The subject of the special investigative activity and the admissibility and use of its results in evidence gathering have always been the subject of increased attention from specialists in the field. However, at the moment, this activity is carried out not in order to satisfy the curiosity of the state bodies and their collaborators, but in order to solve the tasks related to the fight against crime.
特别侦查活动是具体而多样的,考虑到特别侦查活动的法律方面是多方面的、特殊的和相当多样化的。关于这项活动的各种问题、评估和意见涉及解决与不同法律部门有关的广泛问题,这决定需要对特别调查活动形成的广泛问题进行复杂的调查。此外,目前需要科学地理解和解释立法中关于特殊侦查活动的规定及其在司法实践中的意义,以解决法律规定的具体任务,已成为一个热门话题。特别调查活动的主题及其结果在证据收集中的可采性和使用一直是该领域专家日益关注的主题。然而,目前开展这项活动不是为了满足国家机关及其合作者的好奇心,而是为了解决与打击犯罪有关的任务。
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引用次数: 0
Consequences of infringement of the integrity clause 违反诚信条款的后果
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).09
Olga Baciu
In exercising the attributions by the public agencies, the integral regime is obligatory. Although the current legislation does not operate with the notion of an „integrity clause”, it is generic and binding on all civil servants. Violation of the integrity clause is manifested by non-compliance or improper compliance with the measures that ensure one of the forms of integrity provided by the legislation in force. The consequences of violating the integrity clause are complex, being formed by the occurrence of a form of liability and complementary consequences concerning either the person who violated the integrity clause, the documents issued by them, or both of these categories of consequences. The consequences are specific on a case-by-case basis and are conditioned by the gravity of the infringement, its form and the person who committed it.
在公共机关行使归因时,整体制度是强制性的。虽然现行法例并没有“诚信条款”的概念,但它是通用的,对所有公务员都有约束力。违反诚信条款表现为不遵守或不适当遵守现行立法规定的确保诚信形式之一的措施。违反诚信条款的后果是复杂的,它是由违反诚信条款的人、违反诚信条款的人所签发的文件或违反诚信条款的人所产生的一种责任和补充后果所形成的。其后果视具体情况而定,取决于侵权的严重程度、形式和实施侵权的人。
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引用次数: 0
Legislative omission of the illegal practice of financial activity as an offence 立法不作为的非法金融活动作为一种犯罪行为
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).03
Cristina Chihai
The classification of a prejudicial act/harmful event pursuant to Article 2411 (Unlawful practice of financial activity) of the Moldovan Criminal Code involves determining the offence objective and subjective constituents. The subject of the offence is the main player, without whom there can be neither crime nor criminal liability. The Parliament has recognised natural and legal persons as subjects of offence. However, the legal person is held liable for the committed offence only when the Special Part of the Criminal Code comprises appropriate sanctions. In case of the offence covered by Article 2411 of the Criminal Code, the Legislature has not recognised the legal person as a subject of crime. This Article shall deal with the unlawful practice of financial activity and the possibility of its commission by a legal person. Likewise, the Article aims to justify the need to regulate the criminal liability of legal persons along with the criminal liability of natural persons holding management positions pursuant to Article 21 (3) of the Criminal Code. For the offence subject to research, the legal person shall be referred to criminal justice.
根据《摩尔多瓦刑法》第2411条(非法从事金融活动)对妨害行为/有害事件进行分类,涉及确定犯罪的客观和主观成分。犯罪主体是犯罪的主体,没有主体既不能构成犯罪,也不能构成刑事责任。议会已承认自然人和法人为犯罪主体。但是,只有当《刑法》的特别部分包含适当的制裁措施时,法人才对所犯的罪行负责。就《刑法》第2411条所涵盖的罪行而言,立法机关并未承认法人为犯罪主体。本法规定了金融活动的非法行为以及法人实施金融活动的可能性。同样,该条旨在证明有必要根据《刑法》第21条第3款规定法人的刑事责任以及担任管理职务的自然人的刑事责任。法人所犯的有待研究的罪行,应当提交刑事司法处理。
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引用次数: 0
Debureaucratisation of the communication segment of justice by encouraging the associative spirit of judges 通过鼓励法官的联合精神,消除司法沟通部门的官僚化
Pub Date : 2022-07-01 DOI: 10.52277/1857-2405.2022.2(61).08
Natalia Creciun
The state of national justice, in terms of its public credibility, does not fall, to a sufficient extent, into the value dimension of the rule of law. And beyond multiple difficulties faced by individual judges and justice as a system, an important factor in shaping the image of the Judiciary is its communication policy. This is usually a competence of the Council for the Judiciary or of the courts, through a press officer or a spokesperson. The national reality reveals the fact that such a form of communication is deficient, based on objective and subjective reasons. In these conditions, we consider it necessary to find solutions to debureaucratize the communication segment of justice, by building another kind of associative sector - a non-profit organization within the Judiciary, which gives it voice, support and credibility. The paper is developed within the Project ‚Modernization of Governing Mechanisms Focused on the Protection of Human Rights’ (20.80009.1606.15), in the Scientific Research Laboratory Compared Public Law and e-Governmenf, Law Faculty, Moldova State University.
国家正义的状态,就其公信力而言,并没有在足够程度上落入法治的价值维度。除了法官个人和司法系统面临的多重困难外,塑造司法机构形象的一个重要因素是其沟通政策。这通常是司法委员会或法院通过一名新闻官或发言人行使的职权。由于客观和主观的原因,这种形式的交流是有缺陷的。在这种情况下,我们认为有必要找到解决办法,通过在司法机构内建立另一种联合部门- -在司法机构内建立一个非营利性组织,使司法机构发出声音、获得支持和获得信誉,从而使司法部门的通讯部门非官僚化。本文是在摩尔多瓦国立大学法律系“公法与电子政务比较研究实验室”的“以保护人权为重点的治理机制现代化”项目(20.80009.1606.15)中开发的。
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引用次数: 0
期刊
The Journal of the National Institute of Justice
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