Juridical Tribune - Tribuna Juridica

5

Authors: Lecturer Claudiu Ramon D. BUTCULESCU

This article is studying the dynamics of the relationship between legal positivism and the two divisions of law, respectively private law and public law. Legal positivism, envisions concepts of human intervention in the creation and application of the law, and so it finds application in both public law and private law. However, in private law, there are several principles which can be deduced from the doctrine of natural law, such as substitution, reversibility and others. To the contrary, in public law, legal positivism is all present, manifesting itself in all its branches. It is not, however, an exclusive presence, because there is a balance between natural law and legal positivism in each of the divisions of law. The two orientations of law, namely natural law and legal positivism coexist in each of the divisions and branches of the law, but with a different structure, dynamic or static, depending on specific branches of law. This paper presents in an analytical manner, the static and dynamic manifestations of legal positivism within the framework of the two divisions of law, namely private law and public law.

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Authors: Professor Verginia VEDINAŞ; Ph.D. Ioan Laurenţiu VEDINAŞ

The study aims to analyze the main shortcomings that are found in lawmaking process in Romania. It will be structured in four sections, in which will be addressed, in succession, the requirements drawn from constitutional regulations in matters of lawmaking process in Romania, then the rules and principles drawn from the legislation of rules regarding the legislative technique. Further, reporting to the ideas expressed in the first two sections, there will be highlighted the worst shortcomings, by the content and consequences, and in the last part of the study will be revealed the negative effects they produce in the rule of law and, implicitly, on businesses environment. Also, there will be outlined several possible solutions and recommendations that should be considered in the future.

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Authors: Associate professor Ioana PANAGOREȚ; Lecturer Ivan Vasile IVANOFF

The present study makes an analysis of the concept of contracting authority in the context in which the legal definition of this concept leads, in several specific cases, to doubts and the impossibility of correct application of the law when one puts into discussion the local authorities and some legal persons of public law who have a well-defined legal status. Both situations create real difficulties in practice by the correct application of public procurement law so that it may challenge these parts of such public contracts even if they are of good faith and desire the fair enforcement of law.

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Authors: Professor Florentina Camelia STOICA

This study examines the relation between constitutionality and opportunity in order to adopt regulations in matters of economy and finance. The analysis concerns in particular the regulation process on budgetary expenditures, respectively the constitutional obligation to indicate the source of financing for these expenses. The legal and jurisprudential landmarks identified are likely to reveal the delicate issues of balancing the concurring interests, as well as the constitutionalisation tendency of certain obligations imposed by the law of public finances and, respectively, the Fiscal Responsibility Law in the sense of transforming them into “constitutional criteria” through the application of Article 138 (5) of the Constitution.

11

Authors: Associate professor Valeria GHEORGHIU

The specific objective of the present study lies in identifying how respected the principle of joint exercise of parental authority, enshrined in the Romanian legislature. The aim of Civil fundamental rule is to recognize the active participation regarding compliance by the parents of the right to psychological and physical welfare of their children, growth, education, training and their health. Analysis interests of the child enshrined rule that parental rights are not only father but also parental duties so that this breach legal obligations should be duly reasoned. Knowledge of basic civil complying with the requirements resulting from commitments made by Romania in the European integration process and the new status of our country's membership of the European Union. Jurisprudence should share the idea that joint parental authority is the rule and the exception exclusive. The availability principle in subsequent civil trial must be the protection of the interests of the child. Just this social reality we can talk about a Europe constituted by and for children.

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Authors: Professor Raluca DIMITRIU

The paper aims to identify the trends of labor law to return to the individual and the impact of such trends on the trade unionism and collective relations. Because, in relation to the trend of increased individual aspects of labor law, manifested in many fields, it appears legitimate the question: does the collectivist paradigm still meet the postmodern industrial relations? The question is especially relevant in the context of a difficult communication of trade unions with society as a whole, and also in the context of increased competitive relationship between employees - factors likely to hinder the scope of trade unions and even the collective dimension of labor law. The paper aims at finding answers, perhaps even useful in shaping the future labor law.

12

Authors: Associate professor Marioara ȚICHINDELEAN

Having the actori incubit onus probandi apothegm as a starting point, we shall examine the particular aspects of probation in work -related conflicts, as stipulated in the 272-273 Article within the 53/2003 Law regarding The Labour Code and 212 Article within 62/2011 Law on Social Dialogue. The objective of this paper is to examine distinct features related to the functions of evidence, to the set of fundamental principles which underlie the judicial proceedings of probation in work -related conflicts, as well as the active role of the judge in order to assure a righteous and fair trial. All the elements referred to will be regarded from historical, hermeneutic, teleological and comparative points of view. The specific character of regulations underpinning the management procedures regarding probation in work -related conflicts, differing from the provisions under statutory law, highlights the legislator's choice towards establishing a simple and urgent procedure. It should be adjusted to the work terms and to the individual right to work, representing a genuine guarantee for bringing the law claims which derive from adequate or inadequate performance of individual or collective contracts, performed by the employer. Examples provided by judicial practice uncloak the difficulties encountered by both parties of the trial and court when it comes to enforcing the specific provisions for the application of the legislation, fact which is not always compatible with the legislature’s aim, by means of regulation.

14

Authors: Professor Cornelia LEFTER; Ph.D. student Günay DUAGI

The importance of the fiduciary guarantee has not reached its full potential in the Romanian market, nor in the European area. The ongoing “dispute” between the fiduciary operations (familiar to the continental law) and the trust (with its common -law heritage) seems to be won by the latter. However, considering the express provisions on the fiduciary operations in the Romanian Civil Code entered into force in 2011, similar to the introduction of the same legal instrument in the French Civil Code in 2007, could give a boost to this ancient tool, present from the Roman era. Even if the European legal framework do not provide many rules on this institution, however, the Financial Collateral Directive raised many questions on how the fiduciary guarantees can be used in practice, and contributed to the change that followed in this area.

15

Authors: Associate Professor Vladimir SAVKOVIĆ

The author utilizes a case study of Montenegrin regulatory concept of shareholder derivative suits in order to demonstrate, by comparing its features with such concepts in other legal systems and features marked as favorable factors in legal theory, that its failure, as well as the failure of derivative suits in other countries cannot be a priori considered as result of inadequate approach of the legislator. Along with some other important legal systems, shareholder derivative litigation in United States is also analyzed, since its track record shows that it is virtually the single at least relatively successful system of derivative suits so far. This analysis is made so as to distinguish the particular and in many ways unique features of the shareholder derivative litigation concept in United States that enabled the relative success of it. As result of the research conducted and analyses made, the author argues that there is an inherent flaw in the very foundation of the concept of shareholder derivative suits, which generally hinders the use of this legal mechanism. Finally, the author finds that this flaw is deeply rooted in what is known today in theory of company law as the first agency problem.

15

Authors: Professor Ion RUSU

The objective of the study aims at examining the provisions of Law no. 151/2016 on the European protection order and amending and supplementing certain legislative acts, starting from the transposition into the national law of the provisions of the European legal instrument. Also, in this study we have formulated some critical opinions, supplemented by de lege ferenda proposals which aim the improvement of the national criminal legal system. The innovations consist of both the conducted examination, supplemented by the interpretation of provisions of the Romanian law, the formulated critical opinions and the de lege ferenda proposals. The paper can be helpful to academics, particularly students of law faculties and practitioners in the field.

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Authors: Ph.D. student Adina PONTA

Taking the duty of loyalty as a starting point, which we consider to be the director’s core fiduciary duty, this paper aims at identifying the contours of good faith in corporate law and the interpretations of this institution in corporate governance. The objective of the paper is to demonstrate the autonomy of good faith, along with the duty of care and the duty of loyalty. The paper displays the traditional legal approaches of this institution, both in continental civil law and in common law literature and jurisprudence and exhaustively describes the obligations that compose or even define this concept. Due t o its amplitude, the duty of good faith enabled courts to articulate subsidiary fiduciary duties that meet social changes and transformation within business law. By means of cited case law, the conclusion will show that due to the nature, content and effects of situations where specific obligations are met, these may not be incorporated as elements of the traditional duty of care or duty of loyalty.

17

Authors: Professor Anna BANDLEROVÁ; Ph.D. student Jarmila LAZÍKOVÁ

Land lease is one of the few possible ways to use the agricultural land effectively. This is caused by problems in the proprietary and user relationships, therefore the agricultural land lease and its legal regulation is especially important for Slovakia. This paper deals with the selected legal arrangements related to the agricultural land lease in Slovakia with an objective to identify application problems faced by lessees and lessors of agricultural land. When regulating the agricultural land lease relationships, the Slovak law maker prefers dispositive legal norms. However, this method is rarely used in the application practice. Contracting parties often focus only on obligatory characters of the contract, relying on the legal text of dispositive provisions. The legal arrangement of the lessee’s prior right to sign the new lease contract attracts a particular attention. Current legal regulation of this lessee’s right seems to be unenforceable; on the other hand, it collides with the basic human rights. This provision needs to be either cancelled or adjusted so that it achieves the objective defined by the law maker and so that it is legally enforceable in compliance with superior legal norms

18

Authors: Assistant professor Alireza ARASHPUOR; Ph.D. student Alireza ROUSTAEI

For several decades, the Rohingya ethnic minority, in "Myanmar's Rakhine state" is exposed to the systematic violence by the state and governmental agents. The intensity of this violence was emerged in June 2012 and attract the international community attention towards of the Myanmar's country. The theory of responsibility to protect, is the primary responsibility to protect of the people against the four major crimes, including genocide, war crimes, crimes against humanity and ethnic cleansing which are in charge of the each country state. At the same time, in the absence of willing or clear ability of the mentioned government, the international community has a responsibility to act under the Charter of the United Nations and in accordance with the charter provisions to prevent or stop of th e mentioned crimes. According to the necessary urgent support from the Rohingya, in this study, in addition to explain the concept of theory of responsibility to protect, the possibility of international crimes against of them is examined and whereas with regard to this question whether in the Myanmar’s Rohingya situation, there is the invoke condition in terms of the theory of responsibility to protect or not, indeed, whether the international community can invoke to protect them with regard to this theory or not, will be answered.

20

Authors: Professor Florin DUMITER; Master student Ștefania JIMON

In this article we sought to address the international double taxation phenomenon from two different standpoints. To begin with, in the first part we analysed the framework of international double taxation, and how this topic was tackled in both Romanian and international literature. International double taxation has been analyzed, mutatis mutandis, from an economic perspective, more precisely in terms of the implications that it generates on economies, on added value, on capital flows, on the internationalisation of business. Second, I believed it was important to analyse international double taxation from a legal perspective, through the jurisdictional effects of obtaining income or holding property at the European or international level. Romania's case is carefully approached in this paper, aiming to highlight the issues Romania is facing concerning cooperation in tax matters with authorities from other countries, how the more than 80 double taxation conventions are applied and interpreted, but also other aspects that should be considered by the Romanian tax authorities, based on the provisions of the Fiscal Code and the Fiscal Procedure Code. The article ends by presenting, commenting on and analysing two test cases in international double taxation, of remarkable importance and actuality for Romanian jurisprudence to observe how complex double taxation mechanisms operate in practice. The conclusion of this article emphasises the importance of significant “steps” achieved by Romania on the path to creating a true “fiscal area” in the European Union, as well as the “corridors” that should be inserted to correct economic – legal and economic deficiencies and gaps, in order to strengthen the fiscal area.

36

Authors: Assistant Professor Sónia de CARVALHO

The contracts of commercial distribution are indispensable legal instruments to the development of the economic activity. The distribution, since the industrial revolution, acquired autonomy, given the necessity of specialized intermediation to distribute good and products. In this process, the structural organization of the distribution process suffered mutations, starting to assume a set of activities aiming at adjusting demand to supply, including, among others, clients canvassing, after-sales services, financing and assumption of risks, advisory services, promotion and advertising. The insufficiency of traditional contracts of purchase and sales and commission to satisfy the distributive needs caused by the industrial revolution will justify the development of new contractual schemes, such us agency contract, commercial concession and franchising. The obligation of the distributer to ensure the interests of the producer and to promote the distribution of the goods and services of the producer, in the context of a lasting relation of cooperation between the parts, through which the distributer is incorporated, with greater or minor intensity, in the producer distribution network, allowed us to sustain, as affirmed in the Portuguese and European literature, that distribution contracts could be framed in the same legal category. These contracts, as contracts that were shaped by praxis, do not have, with exception of agency contract, a legal framework in Portugal and Spain. It has been discussed in literature if agency contract legal framework can be applied, by analogy, to the contracts that fit in the legal category of distribution contracts. This paper aims at analyzing the legal framework of contracts of distribution in these legal systems, with the purpose to discuss the analogical application of the agency contract to these contracts.