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Criminal implications of the legal status of members of the governing body and persons carrying out key functions in banks 理事机构成员和在银行履行主要职能的人员的法律地位的刑事影响
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).04
Roman Eremciuc, O. Bivol
In some cases, the operation of legislative additions and amendments to the Criminal Code may raise uncertainties regarding the interpretation and application of the criminal law. In this regard, the will of the legislator is to be expressed in a manner that meets the recognized criteria of quality of the law, namely: accessibility, predictability and clarity. In particular, the rule of criminal law must be worded with sufficient precision so as to enable the person to decide on his conduct and to reasonably foresee, in the light of the circumstances of the case, the consequences of such conduct. In this article, the authors set out to interpret the last sentence of art. 123 para. (2) of the Criminal Code, i.e. – to determine whether the members of the governing body and the persons holding key positions in the bank can be considered persons authorized or invested by the state to provide, on their behalf, public services or perform activities of interest public and implicitly, if they can be considered public persons, within the meaning of art. 123 paragraph (2) of the Criminal Code, since, before the exercise of responsibilities, the candidatures of such persons must be approved by the National Bank of Moldova, or either, are to be considered persons managing a commercial organization, within the meaning of article 124 of the Criminal Code.
在某些情况下,对《刑法》进行立法补充和修正可能会对刑法的解释和适用造成不确定性。在这方面,立法者的意志应以符合公认的法律质量标准的方式表达,即:可获得性、可预测性和明确性。特别是,刑法规则的措辞必须足够精确,以便使当事人能够决定其行为,并根据案件的情况合理地预见这种行为的后果。在这篇文章中,作者着手解释艺术的最后一句话。123帕。《刑法》第(2)条,即-确定理事机构的成员和在银行担任关键职务的人员是否可以被视为国家授权或投资的人,代表他们提供公共服务或从事公共和隐含的利益活动,如果他们可以被视为art意义上的公共人员。《刑法典》第123(2)款,因为在行使职责之前,这些人的候选人必须得到摩尔多瓦国家银行的批准,或两者之一,在《刑法典》第124条的意义上被视为管理商业组织的人。
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引用次数: 0
Official document: material/immaterial object or product of offenses of forged public acts. PART II 官方文件:犯罪或伪造公共行为的实物/非实物或产物。第二部分
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).03
Cristina Pirtac
In this scientific approaches are pointed and characterized the internal (content) features of the official document: the material/immaterial object or product of the offence of forged public acts. The official document, regardless of its form, is characterized by a specific content. The specificity of this content is determined by: a) the particularity, according to which the official document is in circulation due to the exercise by public person or by person with a dignity position of their service attributions and b) the particularity, according to which the official document is an act with legal relevance, being apt to lead to the appearance, modification or termination of some legal relations. It is also pointed that in accordance with the legislation of the Republic of Moldova, only the official document, not the private one can be a material/immaterial object or product of the offenses of forged public acts.
在这种科学方法中,官方文件的内部(内容)特征是:伪造公共行为犯罪的物质/非物质对象或产物。公文不论其形式如何,都有其特定的内容。这一内容的特殊性取决于:a)公文的特殊性,即公文是由公职人员或具有职务归属的有尊严地位的人行使而流通的;b)公文的特殊性,即公文是一种具有法律相关性的行为,容易导致某些法律关系的产生、变更或终止。还指出,根据摩尔多瓦共和国的立法,只有官方文件而不是私人文件可以成为伪造公共行为罪行的物质/非物质对象或产物。
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引用次数: 0
Implementation of the proportionality test during the search process and the collection of evidence 在搜查过程和证据收集过程中实施比例检验
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).05
Domnița Vizdoagă
As a means of collecting materials, the search and seizure of objects and documents is of undeniable importance in criminal evidence, providing valuable data that serve to establish the existence or non-existence of the crime, to identify the perpetrator, to establish guilt and other circumstances essential to the just settlement of the case. The present study, in the light of the proportionality test, reflects on the application of several evidentiary procedures, based on multiple criteria, in particular, the assessment of the reasonable doubt, the proportionality between the evidentiary procedure used and the degree of the incriminated deed; the relevance of the materials collected as a result of the evidentiary procedure and the excessive use of force, in carrying out the search.
作为收集材料的一种手段,搜查和扣押物品和文件在刑事证据中具有不可否认的重要性,它提供了宝贵的数据,有助于确定是否存在犯罪,确定犯罪者,确定有罪和其他对公正解决案件至关重要的情况。根据相称性检验标准,本研究根据多种标准,特别是合理怀疑的评估、所采用的证据程序与犯罪行为程度之间的相称性,对几种证据程序的适用进行了反思;由于证据程序和在进行搜查时过度使用武力而收集的材料的相关性。
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引用次数: 0
Human dignity - source and foundation of human rights and freedoms in the 21st century 人的尊严——21世纪人权和自由的源泉和基础
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).06
Olga Dorul, Doina Cazacu
Human dignity is a criterion of appreciation among people, because each of us wants dignity, it comes from our own nature, but it can be achieved in the community of which we are part. Throughout the existence and development of mankind, there have been various situations in which, however, human dignity has been violated. These situations, in turn, in addition to making the problem visible, served as a pillar for inventing new areas of protection of human dignity, such as: from the perspective of unbearable social conditions and the marginalization of poor social classes; unequal treatment of women and men at work; discrimination against foreigners and cultural, linguistic, religious and racial minorities; brutal expulsion of illegal immigrants and applicants today, disability, medicine, etc. In light of such specific challenges, various aspects of the significance of human dignity arise from the multitude of experiences of what it means to be humiliated and deeply hurt. All these have taken to a new level the perception of human dignity and have generated, depending on the stated problem, different legal, international instruments meant to protect the dignity of human being.
人的尊严是人与人之间相互欣赏的标准,因为我们每个人都需要尊严,它来自我们自己的本性,但它可以在我们所属的社会中实现。然而,在人类的整个存在和发展过程中,出现过各种侵犯人的尊严的情况。这些情况除了使问题可见外,还成为创造保护人类尊严的新领域的支柱,例如:从无法忍受的社会条件和贫穷社会阶层的边缘化的角度;男女在工作中的不平等待遇;对外国人和文化、语言、宗教和种族少数群体的歧视;野蛮驱逐非法移民和申请者今天,残疾,医药等。鉴于这些具体的挑战,人的尊严的意义的各个方面来自于对屈辱和深深伤害意味着什么的大量经验。所有这些都把对人的尊严的认识提高到一个新的水平,并根据所提出的问题产生了旨在保护人的尊严的各种法律和国际文书。
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引用次数: 0
Signs of the concept of „conflict of interest” in the judicial practice of Ukraine “利益冲突”概念在乌克兰司法实践中的体现
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).08
Z. Zahynei-Zabolotenko, P.Yu. Demiak
This article is about the problem of understanding the concept „conflict of interest” and its characteristics in the legal positions of Administrative Court of Cassation as a part of Supreme Court of Ukraine. From the article we can understand that these legal positions touch the correct definition of characteristics of private interest, potential and real conflict of interest, finding out people who are subordinated to a person who is authorized to perform state or local self-government functions, and it can causes potential or real conflict of interest. These legal positions can be used in bringing the guilty persons to administrative responsibility under the Code of Administrative Offenses.
本文就乌克兰最高法院下属行政上诉法院的法律立场中“利益冲突”概念及其特征的理解问题进行了探讨。从文章中我们可以了解到,这些法律立场触及了对私人利益特征、潜在利益冲突和现实利益冲突的正确定义,找出了被授权执行国家或地方自治职能的人的下属,并可能导致潜在利益冲突或现实利益冲突。这些法律立场可用于根据《行政违法者法典》追究犯罪人员的行政责任。
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引用次数: 0
Mechanisms and legal instruments to ensure air route safety 确保航路安全的机制和法律文书
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).07
Alexndru Cauia, Feodor Bria
The legal regulation of ensuring the safety of air traffic in general and of air routes in particular is one of the main concerns of specialists in the field of public international law. The principles and objectives, structure and organization of airspace for safe and efficient operation by analyzing the procedures for the formation and operation of air routes are the subject of this article. Airspace areas with special legal status are an important element of airspace regulation and the process of ensuring air route safety. The analysis of the normative provisions that contribute to ensuring the security of air routes, the risks and threats on the safety of these routes and the mechanisms for preventing and combating them are a priority for specialists in the field of international air law.
确保一般空中交通,特别是航线安全的法律规定是国际公法领域的专家们主要关心的问题之一。本文通过对航路形成和运行过程的分析,探讨了安全高效运行的原则、目标、空域结构和组织。具有特殊法律地位的空域是空域规制和保障航路安全的重要组成部分。分析有助于确保航空路线安全的规范性规定、对这些路线安全的危险和威胁以及预防和对付这些危险和威胁的机制,是国际航空法领域专家的优先事项。
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引用次数: 0
The right of the defense to request an explanation of the accusation during the criminal investigation phase 辩方在刑事侦查阶段要求对指控作出解释的权利
Pub Date : 2021-12-01 DOI: 10.52277/1857-2405.2021.4(59).01
Tatiana Vizdoaga, Adriana Eşanu
Pursuant to Article 66 paragraph (2) point 1) of the Code of Criminal Procedure, the accused has the right to know for what deed he is accused […], i.e. to be informed on the nature and cause of the accusation brought against him. If the person is not properly informed about the accusation, he is deprived of the right to ensure the possibility of preparing and exercising his defense, being seriously affected by the principles of a fair trial, guaranteed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although the principle governing the exercise of rights by the accused in criminal proceedings guarantees the use of any means and procedures of defense, except those expressly prohibited by law, some prosecutors are reluctant to defenders’ requests to explain the accusation in criminal proceedings, context in which, in most cases, either declares them inadmissible or considers them unfounded. Such an approach does not reconcile the right to a fair trial; or, the clarity of what is set out in the indictment is also linked to the right of the accused to defend himself – as an indispensable element of the protection of the person against arbitrariness. Therefore, in this study, the authors will come up with pertinent arguments to annihilate the vicious practice of prosecutors to disregard the importance of predictability of the accusation in order to ensure the right to defense, as well as avoiding the conviction of the Republic of Moldova by the European Court for European Convention.
根据《刑事诉讼法》第66条第(2)款第1款,被告有权知道他因什么行为而被指控[…],即被告知对他提出指控的性质和原因。如果该人没有被适当地告知指控,他就被剥夺了确保准备和行使辩护的可能性的权利,受到《欧洲保护人权和基本自由公约》第6条所保障的公平审判原则的严重影响。虽然关于被告在刑事诉讼中行使权利的原则保证使用任何辩护手段和程序,但法律明文禁止的手段和程序除外,一些检察官不愿接受辩护人在刑事诉讼中解释指控的要求,在这种情况下,在大多数情况下,要么宣布这些指控不可受理,要么认为这些指控没有根据。这种做法不能调和公平审判的权利;或者,起诉书中所述内容的明确性也与被告为自己辩护的权利有关- -这是保护个人不受任意性侵害的一个不可缺少的因素。因此,在本研究中,作者将提出有关的论点,以消除检察官为了确保辩护权而无视指控的可预见性的重要性以及避免摩尔多瓦共和国被欧洲公约欧洲法院定罪的恶毒做法。
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引用次数: 0
Theoretical-practical approaches regarding the detention regimes in the penitentiaries of the Republic of Moldova 关于摩尔多瓦共和国监狱拘留制度的理论-实践方法
Pub Date : 2021-10-01 DOI: 10.52277/1857-2405.2021.3(58).08
V. Cojocaru
This article highlighted the specific nature of the execution of custodial sentences in the Republic of Moldova. Similarly, some theoretical and practical aspects of the current difficulties encountered in achieving the purpose of the deprivation of liberty were approached through the proper application of progressive and regressive regimes. Special importance has been given to the identification of the current regulations that determine the placement in different types of prisons with the three detention regimes. Also, this scientific paper draws attention to the necessity to carry out studies aimed at contributing to the formulation of proposals for amending the normative and institutional framework in order to enforce custodial sentences, including the current infrastructure conditions. For a suitable weighting of the necessary efforts in the process of applying new detention regimes. Thus, the legal analysis of the present provisions has attempted to make the present work useful both to the justices and to the academic environment regarding the current realities concerning the application of detention regimes and the need for intervention in this field.
这篇文章强调了摩尔多瓦共和国执行监禁判决的具体性质。同样,在实现剥夺自由的目的方面目前遇到的一些困难的理论和实际方面,也通过适当采用渐进和倒退的制度加以解决。特别重要的是确定现行的规定,这些规定决定将囚犯安置在具有三种拘留制度的不同类型的监狱中。此外,这篇科学论文提请注意,有必要进行研究,以协助拟订修订规范和体制框架的建议,以便执行监禁判决,包括目前的基础设施条件。在适用新的拘留制度的过程中,适当地权衡必要的努力。因此,对现行规定的法律分析试图使目前的工作对法官和学术环境都有帮助,使他们了解有关拘留制度适用的当前现实和在这一领域进行干预的必要性。
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引用次数: 0
Qualification of the repeated single offence: the case of hooliganism 重复单一犯罪的条件:流氓罪
Pub Date : 2021-10-01 DOI: 10.52277/1857-2405.2021.3(58).05
Vadim Prisacari
In this scientific article is addressed the issue of qualifying the crime of hooliganism when it occurs in the position of repeated crime. It is argued that in order to be incident the aggravating circumstantial sign enshrined in letter a) paragraph (2) art. 287 of the Criminal Code of the Republic of Moldova it is not imperative that the perpetrator has previously committed an act of hooliganism in the standard version. The repeated single offense is a legal fiction. The offenses committed (forming the repeated offense) de facto represent a multiple offences, while de jure, artificially, form the content of a single offense. In any case, the repeated crime bears enormous similarities to the multiple offences (a form of the plurality of offences), deriving from the latter legal category. Repeated crime does not constitute a deviation from criminal recidivism (the other form of plurality of offenses). Repeated crime is not a form of plurality of crimes.
本文探讨了流氓罪发生在重复犯位置时的定性问题。有人认为,为了成为事件,加重情节的迹象载于a)条第(2)款。根据《摩尔多瓦共和国刑法》第287条的规定,行为人在标准版本中并不一定曾经犯过流氓罪。重复的单一犯罪是法律上的虚构。所犯的犯罪(构成重复犯罪)在事实上代表多重犯罪,而在法律上人为地构成单一犯罪的内容。在任何情况下,重复犯罪都与多重犯罪(多重犯罪的一种形式)有着巨大的相似之处,都是从后者派生出来的。累犯不构成对累犯(犯罪多重的另一种形式)的偏离。重复犯罪不是多重犯罪的一种表现形式。
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引用次数: 0
Assessment of evidence in adopting decisions to put a criminal case 在对刑事案件作出决定时对证据进行评估
Pub Date : 2021-10-01 DOI: 10.52277/1857-2405.2021.3(58).06
Lilia Lupaşco
The criminal process manifests a staged character and each of the phases of the process aims at solving certain issues and ends with the adoption of appropriate solutions. The phase of preparing the criminal case for trial is a relevant example. Assessing the evidence until the decision to prosecute is adopted is like a „filter” that prevents the passage of the criminal case to the next stage if circumstances are discovered in it. The assessment of the evidence at the stage of putting the criminal case on the register shows interest because here the bases of the activity of the court for the next stage – of the trial of the case on the merits are laid.
刑事诉讼程序表现出阶段性的特点,诉讼程序的每个阶段都旨在解决某些问题,并以采取适当的解决办法结束。准备刑事案件审判阶段就是一个相关的例子。在做出起诉决定之前,对证据进行评估就像一个“过滤器”,如果发现其中的情况,就会阻止刑事案件进入下一阶段。在将刑事案件列入登记册这一阶段对证据的评估显示出人们的兴趣,因为这为法院下一阶段的活动奠定了基础,即根据案情对案件进行审判。
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引用次数: 0
期刊
The Journal of the National Institute of Justice
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