Juridical Tribune - Tribuna Juridica

6

Authors: Lecturer Ana VIDAT1, PhD

Failure to conclude individual employment contract as provided in the applicable legal rules in the field of legal work brings into question the concept of "undeclared work" – one of the important issues facing the Romanian society.

9

Authors: Lecturer Dragoş Lucian RĂDULESCU, PhD

Enforced execution is the legal way by which the Creditor under an enforceable order protects his rights by resorting to coercive force of the state. When the Debtor does not comply voluntarily, the Creditor may appeal to the Bailiff to commence the enforced execution in all manner prescribed by law. Of course, the start of compulsory execution is limited by the conditions of admissibility imperatively specified in the law, principally the condition to exist an enforceable order owned by the Creditor. Regarding the order to be enforced, it can be represented either by an enforceable or final judgement, with provisional enforcement or any other document that can be enforced. Procedurally, the provisions of Art.712 of the Civil Procedure Code allow the introduction by a Creditor who has a litigation to execution against the execution itself, against the Closures issued by the Bailiff, and against any other act of enforcement. Jurisdiction of the Court in this matter will be of the Executor Court or the Court in whose district the Debtor is situated, on the date of the appeal. The appeal of the Debtor questions the Parties not only over the acts of execution because the appeal is also allowed over the explanations relative to the meaning, scope or application of the enforceable order, but in the conditions limited by the legal nature of this order. Thus, according to the law when enforceable order is not issued by a Court or Arbitration may be invoked before an Executor Court including reasons of fact or law which could not be discussed during an earlier trial, in the first instance or in an appeal. Basically, if enforced execution is under an enforceable order that is not from a Court, these reasons can be invoked when there is no other processual mean for its abolition. There also can be submitted a complaint against the Closure by which was upheld the appeal for an enforced execution, and the act of execution concerning the division of the common property or common goods. For the purposes of the foregoing ideas, the article details the mean of introduction the execution appeal for recovery of emoluments arising from a legal labour relationship. Creditor’s debt is represented by the financial rights related to the management function held in a public institution. Regarding the enforcement order it is the Decision of the Appeal Court by which the Debtor public institution is obliged to cover the material damage suffered by the Creditor civil servant, starting from the time of his dismissal from the management function until effectively reintegration on the same position. There are analysed the Debtor’s appeals requesting the annulment of execution acts issued by the Bailiff, and the execution itself, the appeal motivation, the defences of the parties in fact and in law, and the role of the Court during the course of the procedure.

10

Authors: Associate professor Cătălin-Silviu SĂRARU, PhD

Article analyzes the premises which made possible the creation of a European Administrative Space in the European Union. Are researched the criteria for belonging to the European Space, the conditions for the existence of a European Public Space and the notion of the European Administrative Space. They emphasize the factors that can determine a unified transnational public law by analyzing the administrative convergences in Europe. Today we find that although the term and concept of law of public administration differ from one national system to another, it is possible an agreement on a common definition of administrative law, as a set of principles and rules that relate to the organization and administration management public and relations between governments and citizens.

11

Authors: Lecturer François EDIMO, PhD

Law No. 2014/28 of 23 December 2014 on the suppression of acts of terrorism in Cameroon was enacted in a context characterized by the resurgence of terrorism. But the caution with which it was greeted raises questions about the formal technique used by the legislator. A content analysis of this law, we come to two conclusions: First the legality principle is violated because the offense is not defined and it is formulated in vague terms. Second, the prominence it gives to mobile and indifference of the means used in the commission of the offense exalt guilt.

13

Authors: Iuliana-Gabriela IACOB; Ramona-Elisabeta CIRLIG

The Energy Charter Treaty (the “ECT”) is a multilateral agreement aiming to promote energy cooperation and security. This paper focuses on the provisions of the ECT governing the protection of foreign investments and the settlement of disputes between investors and host states. In particular, this paper analyses the recent developments and challenges in the field of dispute settlement under the ECT, such as the increase in arbitrations, the withdrawal of Italy from the ECT, as well as the interplay between EU law and the ECT.

15

Authors: Professor Ion RUSU, PhD

Throughout this paper we have conducted a general examination of the principles under which it is regulated the newest form of European judicial assistance in criminal matters, namely, the European Investigation Order in criminal matters. The examination is focused in particular on the necessity and importance of establishing this new form of legal assistance in criminal matters between the Member States, given that it will override the order of freezing property or evidence in the European Union. When examining the general principles of this form of assistance we have noticed some imperfections of the European law, therefore we have formulated some critical opinions, supplemented by proposals of de lege ferenda. At the same time, given that up to May 22, 2017 the European legal instrument will have to be transposed into the Romanian law, we have formulated some proposals of de lege ferenda aiming at the improvement of Law no. 302/2004 on international judicial cooperation in criminal matters, republished, as amended and supplemented. The innovations of the work regard the examination of the general principles set out in the Preamble of the European legal instrument, the importance and the necessity for adopting this regulation, as well as formulating critical opinions supplemented by appropriate proposals de lege ferenda. The current study follows other works in the international and European judicial cooperation in criminal matters domain, published in some national and foreign publishing houses and in the volumes of international or national scientific conferences. The work can be useful to academics, practitioners in the field and to the Romanian legislator from the perspective of transposing the provisions into the national law of the European legal instrument.

16

Authors: Lecturer Camelia Daciana STOIAN, PhD

The article aims at procedural mechanism of application of art.147, paragraph 2 of Romanian Constitution3, in the specific case of pronouncing an unconstitutionality decision which concerns a law in draft before its promulgation, but especially focuses on the effects produced by such a normative act adopted without consideration of the Constitutional Court Decision. In other words, the Parliament, although bound to reconsider those provisions to bring them into line with the Constitutional Court decision, for failure to comply with this obligation, it brings us into the situation of prevalence inability of this Constitutional Court Decision and breach of a law in force which was, moreover, declared unconstitutional still at the planning stage. In this way, we find that the effects in question are reflected in an unfavorable way; above all the interest of local collectivities; and raises a big question mark on the achievement of both the "joint" powers of Parliament's own, and the concept of "local autonomy" by those who exercise it, knowing your rights, obligations and limits allowed.

29

Authors: Lecturer André Desmonds EYANGO DJOMBI, PhD

The last reform of the Uniform Act on General Commercial Law OHADA reconsidered several pieces of commercial law. The concept of leasing has not been spared. She, who was accompanied by the "commercial" substantive, has been transformed into "commercial lease". Question of style or simple semantics? Certainly not, because the legislature in 1997, had not previously dared revise the designation commercial lease that no longer fit with the extension of the beneficiaries he had devoted himself. With the reform of December 2010, the institution of the lease has just renamed. Parliament also confirmed the extension of the scope of economic actors involved in the protection of the lease. The regime of former Uniform Act was therefore not fully extended, particularly since we noted another significant change in the new text. Contrary to former Article 69 which devoted two cumulative criteria necessary for the implementation of the lease of the regime, including the situation in a populated city of more than 5,000 people and membership of local under lease to a designated class2, the new text retains a single criterion, that of belonging to a local specific category. This mutation disrupts some basics of goodwill theory. Indeed, with the increasing scope of lessees, there is a sliding protection to professional trader. This causes result in a substitution of the lease of the foundation that passes from customer to the profession. The loss of the privileged place of business customers coupled with doctrinal and jurisprudential developments in the theory of civil customers, argue for an assimilation of the different customer categories.