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Volume 26 (2020): Edition 40 (December 2020)

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Volume 24 (2019): Edition 38 (December 2019)

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Détails du magazine
Format
Magazine
eISSN
2457-9017
Première publication
16 Apr 2015
Période de publication
2 fois par an
Langues
Anglais

Chercher

Volume 24 (2019): Edition 38 (December 2019)

Détails du magazine
Format
Magazine
eISSN
2457-9017
Première publication
16 Apr 2015
Période de publication
2 fois par an
Langues
Anglais

Chercher

6 Articles
Accès libre

Re-Assessment of “Claw-Back” Clauses in the Enforcement of Human and Peoples’ Rights in Africa

Publié en ligne: 11 Dec 2019
Pages: 1 - 22

Résumé

Abstract

One of the continuing problems, which had faced the African Charter, is many of its substantive provisions that are raven with qualifications without reasonable justification. These rights guaranteed under the Charter are subject to “claw-back” clauses that are introduced by governments and public authorities thereby undermining their citizen‟s basic constitutional rights of securing fundamental freedoms. They are those rights that impose negative duty on the state and are meant to promote the values of pluralism, equality and human dignity, which should be enjoyed free from state interference. It is in the interference of these rights that commentators have frequently criticized the African Charter for rendering its protective mandate meaningless and unenforceable. With hindsight, it is evident that the foregoing critique levelled against the “claw-back” clauses under Charter is justified, as they have a chilling effect on the exercise of human and peoples‟ rights on the African continent. Such condition has produced intense academic discussion on the interpretation and implications of the rights and freedoms enshrined in the Charter. None the less, the scope and the significance of the legal measures adopted by the African Commission have minimized the impact of the clauses affected considerably. Accordingly, a strong principle of interpretation adopted by the Commission has contributed to shaping the Charter‟s legal structure in harmony with international human rights law standards.

Mots clés

  • protection
  • promotion
  • human rights
  • peoples‟ rights
  • national laws
  • democracy
  • participation
  • African Commission
  • liberties and freedoms
  • interpretation and enforcement mechanisms
Accès libre

The Romanian Prezidentialized Consultative Referendum. Eating Apples from a Poisonous Tree? Personal and Teleological Interpretations

Publié en ligne: 11 Dec 2019
Pages: 23 - 43

Résumé

Abstract

Through this article, we propose an (original) analytical approach on the consultative referendum of May 2019 and a wider critical landscape regarding the consultative referendum institution by enforcing a teleological interpretation. In this sense, we propose three sections. We will start with a short overview on the use of the consultative referendum in the recent years of Romanian democracy. In the second section we will focus on the consultative referendum from 26 May, 2019. In the third section we will ask the Founding Fathers of the Constitution for an “opinion” regarding the possibilities and impossibilities of the consultative referendum.

Mots clés

  • Consultative Referendum
  • Romanian Constitution
  • head of state authoritarianism
  • constitutional coherence
Accès libre

Euthanasia: Theoretical and Legal Principles

Publié en ligne: 11 Dec 2019
Pages: 44 - 52

Résumé

Abstract

Some aspects of the possibility of using euthanasia are covered. The author draws attention to the relation between the categories “euthanasia” and “bioethics”. The emphasis has been placed on the legal and medical aspects of the applying of euthanasia, based on the practice of the Netherlands.

Mots clés

  • euthanasia
  • bioethics
  • medical procedures
  • termination of human life
  • murder
Accès libre

The Significance of Death-Scene Investigation in Determining Cause and Circumstances of Medico-Legal Death

Publié en ligne: 11 Dec 2019
Pages: 53 - 62

Résumé

Abstract

The article presents two cases of the Arad Medico-Legal Department illustrating just a part of the role of the forensic pathologist at the death scene but there are sufficient to fully justify the importance of this investigation as no example can comprise the complexity of problems and the particularity of each case, nor a statistic can be made. Both cases were found dead at home and forensically autopsied, but the two of them were distinct in terms of forensic pathologist's request death scene participation. In the first case, the autopsy did not find traumatic lesions, but revealed that the death was due to massive hemoptysis caused by cavernous tuberculosis with subsequent exsanguination, microscopically confirmed. The death was nonviolent. In the second case, the autopsy revealed findings of mechanical asphyxia due to neck compression, both macroscopically and microscopically. The death was violent. In both cases the forensic expert participation is required at the death-scene.

In the first case it allowed the correct interpretation of the traces of blood found on site, and in the second case, an onsite research would have properly helped for restoring the death‟s occurrence.

The scene investigation and autopsy provide, together, the basis for an accurate determination of cause and circumstances of death.

Mots clés

  • death-scene
  • forensic pathologist
  • autopsy
Accès libre

Limitation of Claims in Polish and Ukrainian Civil Code Against the Background of the Principles of European Contract Law and the German Civil Code

Publié en ligne: 11 Dec 2019
Pages: 63 - 94

Résumé

Abstract

The article deals with limitation of claims in Poland, Ukraine and Germany. The authors made a conclusion that the most liberal solution in the area of contractual regulation of limitation is provided in the German Civil Code, which allows shortening and prolonging the statutory limitation period, whereas the most severe is provided for in the Polish Civil Code, prohibiting it altogether. An indirect solution has been adopted by the Ukrainian Civil Code, which allows only the extension of the statutory limitation period. These different legislative solutions demonstrate that the national legislators are partially different in their view of the reasons justifying the statute of limitations. Newer prescription regulations, to which the German and Ukrainian ones belong, are largely similar to each other. The same can be said about the Polish academic project of the general section of the civil code. The Principles of European Contract Law have had a significant impact on teaching of civil law, as well as on national legislators.

Mots clés

  • limitation
  • claims
  • property
  • principles
  • contract law
  • civil code
Accès libre

Certain Considerations Regarding the Attributions of the Guardianship Court in the Protection of the Individuals

Publié en ligne: 11 Dec 2019
Pages: 95 - 110

Résumé

Abstract

The issue of protecting the natural persons has been triggering a lot of interest due to the need for providing them with proper means for this purpose. In Romania, the court of guardianship and family plays an important role in protecting this category of persons, court established as a result of the entering into force of the new Romanian Civil code in 2011. The legal norms distinguish between the prerogatives of this court on the protection of the major persons and its attributions in this matter towards the minors. Further on, it will be analyzed certain prerogatives of the guardianship and family court meant for the minor persons.

Mots clés

  • protection
  • guardianship and family court
  • parental authority
  • General Directorate of Social Care and Child‟s Protection
6 Articles
Accès libre

Re-Assessment of “Claw-Back” Clauses in the Enforcement of Human and Peoples’ Rights in Africa

Publié en ligne: 11 Dec 2019
Pages: 1 - 22

Résumé

Abstract

One of the continuing problems, which had faced the African Charter, is many of its substantive provisions that are raven with qualifications without reasonable justification. These rights guaranteed under the Charter are subject to “claw-back” clauses that are introduced by governments and public authorities thereby undermining their citizen‟s basic constitutional rights of securing fundamental freedoms. They are those rights that impose negative duty on the state and are meant to promote the values of pluralism, equality and human dignity, which should be enjoyed free from state interference. It is in the interference of these rights that commentators have frequently criticized the African Charter for rendering its protective mandate meaningless and unenforceable. With hindsight, it is evident that the foregoing critique levelled against the “claw-back” clauses under Charter is justified, as they have a chilling effect on the exercise of human and peoples‟ rights on the African continent. Such condition has produced intense academic discussion on the interpretation and implications of the rights and freedoms enshrined in the Charter. None the less, the scope and the significance of the legal measures adopted by the African Commission have minimized the impact of the clauses affected considerably. Accordingly, a strong principle of interpretation adopted by the Commission has contributed to shaping the Charter‟s legal structure in harmony with international human rights law standards.

Mots clés

  • protection
  • promotion
  • human rights
  • peoples‟ rights
  • national laws
  • democracy
  • participation
  • African Commission
  • liberties and freedoms
  • interpretation and enforcement mechanisms
Accès libre

The Romanian Prezidentialized Consultative Referendum. Eating Apples from a Poisonous Tree? Personal and Teleological Interpretations

Publié en ligne: 11 Dec 2019
Pages: 23 - 43

Résumé

Abstract

Through this article, we propose an (original) analytical approach on the consultative referendum of May 2019 and a wider critical landscape regarding the consultative referendum institution by enforcing a teleological interpretation. In this sense, we propose three sections. We will start with a short overview on the use of the consultative referendum in the recent years of Romanian democracy. In the second section we will focus on the consultative referendum from 26 May, 2019. In the third section we will ask the Founding Fathers of the Constitution for an “opinion” regarding the possibilities and impossibilities of the consultative referendum.

Mots clés

  • Consultative Referendum
  • Romanian Constitution
  • head of state authoritarianism
  • constitutional coherence
Accès libre

Euthanasia: Theoretical and Legal Principles

Publié en ligne: 11 Dec 2019
Pages: 44 - 52

Résumé

Abstract

Some aspects of the possibility of using euthanasia are covered. The author draws attention to the relation between the categories “euthanasia” and “bioethics”. The emphasis has been placed on the legal and medical aspects of the applying of euthanasia, based on the practice of the Netherlands.

Mots clés

  • euthanasia
  • bioethics
  • medical procedures
  • termination of human life
  • murder
Accès libre

The Significance of Death-Scene Investigation in Determining Cause and Circumstances of Medico-Legal Death

Publié en ligne: 11 Dec 2019
Pages: 53 - 62

Résumé

Abstract

The article presents two cases of the Arad Medico-Legal Department illustrating just a part of the role of the forensic pathologist at the death scene but there are sufficient to fully justify the importance of this investigation as no example can comprise the complexity of problems and the particularity of each case, nor a statistic can be made. Both cases were found dead at home and forensically autopsied, but the two of them were distinct in terms of forensic pathologist's request death scene participation. In the first case, the autopsy did not find traumatic lesions, but revealed that the death was due to massive hemoptysis caused by cavernous tuberculosis with subsequent exsanguination, microscopically confirmed. The death was nonviolent. In the second case, the autopsy revealed findings of mechanical asphyxia due to neck compression, both macroscopically and microscopically. The death was violent. In both cases the forensic expert participation is required at the death-scene.

In the first case it allowed the correct interpretation of the traces of blood found on site, and in the second case, an onsite research would have properly helped for restoring the death‟s occurrence.

The scene investigation and autopsy provide, together, the basis for an accurate determination of cause and circumstances of death.

Mots clés

  • death-scene
  • forensic pathologist
  • autopsy
Accès libre

Limitation of Claims in Polish and Ukrainian Civil Code Against the Background of the Principles of European Contract Law and the German Civil Code

Publié en ligne: 11 Dec 2019
Pages: 63 - 94

Résumé

Abstract

The article deals with limitation of claims in Poland, Ukraine and Germany. The authors made a conclusion that the most liberal solution in the area of contractual regulation of limitation is provided in the German Civil Code, which allows shortening and prolonging the statutory limitation period, whereas the most severe is provided for in the Polish Civil Code, prohibiting it altogether. An indirect solution has been adopted by the Ukrainian Civil Code, which allows only the extension of the statutory limitation period. These different legislative solutions demonstrate that the national legislators are partially different in their view of the reasons justifying the statute of limitations. Newer prescription regulations, to which the German and Ukrainian ones belong, are largely similar to each other. The same can be said about the Polish academic project of the general section of the civil code. The Principles of European Contract Law have had a significant impact on teaching of civil law, as well as on national legislators.

Mots clés

  • limitation
  • claims
  • property
  • principles
  • contract law
  • civil code
Accès libre

Certain Considerations Regarding the Attributions of the Guardianship Court in the Protection of the Individuals

Publié en ligne: 11 Dec 2019
Pages: 95 - 110

Résumé

Abstract

The issue of protecting the natural persons has been triggering a lot of interest due to the need for providing them with proper means for this purpose. In Romania, the court of guardianship and family plays an important role in protecting this category of persons, court established as a result of the entering into force of the new Romanian Civil code in 2011. The legal norms distinguish between the prerogatives of this court on the protection of the major persons and its attributions in this matter towards the minors. Further on, it will be analyzed certain prerogatives of the guardianship and family court meant for the minor persons.

Mots clés

  • protection
  • guardianship and family court
  • parental authority
  • General Directorate of Social Care and Child‟s Protection

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