Juridical Tribune - Tribuna Juridica

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Authors: Assistant professor Radu Ştefan PĂTRU

In this study, the procedural aspects regarding the way of applying the patrimonial liability to labour law will be analysed. The non-regulation of a procedure in this matter by the legislator represents a legislative lacuna that can be corrected either by de lege ferenda by amending the Labour Code, or by the social partners according to the legal provisions in the matter. In this study, solutions in this regard will be presented.

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Authors: Assistant professor Bashkim RRAHMANI

The development of administration went through various phases after the war in Kosovo (1999). Right after the war we cannot talk about the clear administration with the local sense, since Kosovo based on the UN Security Council Resolution 1244 was put under the international civil administration. Ten years later Kosovo Parliament approved the Declaration of Independence after which the Kosovo Constitution was adopted, whose main attribute was to create the state of Kosovo. Thus, based on this, the administration in Kosovo was developed firstly as the internationally organized one; then it was locally organized supervised by the international power and finally it is being developed based on Kosovo Constitution and Kosovo Laws. With this paper author by explaining the process of administration development, using: method of historical analysis, method of comparison analysis, method of systemic analysis, etc., with the specific analysis of the judicial control of Kosovo administration during these phases, as the basic form of the administration control which is exercised by courts in Kosovo. Conclusions and recommendations of the paper are expected to be used not only for academic debates.

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Authors: Professor Ramona LILE; Lecturer Claudia BOGHICEVICI; Lawyer Camelia Daciana STOIAN

It is already known and accepted in Romania the reality of the consequences produced by the social or other reforms, the transformations that reach precisely the category of the citizens from the rural area, with socio-economic problems. In 2017, the awareness of the fact that the population in the rural area, mainly consisting of socially, economically or medically vulnerable groups, need this type of services, trying to compensate for the reality of the dismantling of several sanitary units, O.U.G no.18 attempts an approach through the corroboration of this state of affairs with the objectives of developing community services. Our conclusions set out in this article are paving the way for de lege ferenda proposal to ensure proper regulations from the perspective of providing training for the social professions to be involved in the functioning of integrated centers at the level of rural communities.

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Authors: Professor Oleksandr KARPENKO; PhD. Kateryna GLUBOCHENKO

Considering concept formation of service-oriented public policy, the main stages of its development are discussed and some of the modern trends of service-oriented policymaking in Ukrainian legislation are analyzed. Some features and tendencies are identified in order to improve the quality of interaction between citizens and public administration system in Ukraine. This paper aims to analyze the concept formation of service-oriented public policymaking in Ukrainian legislation and the implementation process of e-services delivery in Ukraine. In spite of significant studies of “service state”, “welfare state”, “service-oriented public policy” and other concepts, current unique political and legislative factors of Ukrainian development determine the relevance of this paper. The primary focus of the paper is efficiency analysis of legislative ensuring of administration services in the Ukrainian context in comparison with the experience of other countries. That was implemented via such methods as comparative analysis, interpretation of statistical indexes of e-services delivery and documentary research method. The paper has been organized as follows. The next section provides a literature review on the concepts of public-state interaction. Then word experience and peculiarities of Ukrainian background of e-services delivery efficiency are considered.

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Authors: Dr. iur. Magdalena MICHALAK; Dr. iur. Przemysław KLEDZIK

In 2017 the Polish Code of Administrative Procedure was amended. As a result of the introduced changes, regulations regarding public participation in dealing with individual cases subject to settlement by way of decision were significantly extended. As a general rule, the authorities have been obliged to strive for amicable settlement of disputes whose nature allows it. In order to implement the above principle, apart from the institution of amicable agreement already applicable in Polish system, the possibility of conducting mediation between the parties to the proceedings, as well as between the party and the authority was introduced. Such solution is already applied in some legal orders and is gaining more and more importance in the countries of the EU. The objective of these regulations was to extend public participation in the administrative governance. The article presents an analysis and evaluation of solutions adopted in Polish law in the context of general and universal problems of purposefulness, scope and forms of public participation in authoritative resolution of disputes, which as a rule is the domain of the state.

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Authors: Professor Armand KRASNIQI

Customer protection is a worldwide known and respected phenomenon, whereas in Kosovo its regulation is in early beginnings. Historically, the origin of Kosovo customer law is from 2004 when it was first regulated by the Law. Despite all the amendments and additions made to this act in 2009, there are still no signs of positive results on this respect. The purpose of this paper is to highlight the importance of customer protection and to emphasize that customer protection legislation is not sufficiently harmonized with the Law on Obligation Relationships reflecting certain legislative divergences. These divergences result in no unique legal terminology, and also in various interpretations due to the underlying weaknesses. For the purpose of legislative security for customer protection, it is necessary to harmonize the terminology referring to the customer as a buyer, etc..

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Authors: Professor Mihai BĂDESCU

The study analyzes one of the major causes of the malfunctions currently in public administration: legislative inflation. Legislative inflation (or normative excess) should be seen as an unnatural multiplication of the norms of law, with negative consequences both for the elaboration of the normative legal act, the diminution – significant in some cases – of its quality, but also with regard to the realization of the law, especially in the enforcement of the rules of law by the competent public administration entities. The study proposes solutions to overcome these legislative dysfunctions, the most important of which refer to the rethinking of the current regulatory framework, the legislative simplification, the improvement of the quality of the law-making process, especially by complying with the legislative requirements (principles), increasing the role of the Legislative Council. The methods of scientific research used are adapted to the objectives of the study: the logical method - consisting of specific procedures and methodological and gnoseological operations, to identify the structure and dynamics of the legal system of contemporary society; the comparative method – which allows comparisons of the various legal systems presented in this study; the sociological method – which offers a new perspective on the study of the legal reality that influences society in the same way as it calls for the emergence of new legal norms; the statistical method – which allows statistical presentation of the most relevant data that configures the analyzed phenomenon. The study aims to raise awareness of the negative effects of regulatory excess. This, along with the legislative instability, as present in the current legislative landscape, not only generates a diminution in the quality of the law, but also builds the trust in its power to ensure justice, promote and protect the rights of the individual. Overproduction of laws gives rise to serious distortions in the application of the law, sometimes even to the impossibility of applying it, thus annihilating the balance that should exist between norms and their application.

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Authors: Lecturer Anamaria GROZA

The Romanian society has, as a national objective, a public administration outside the political influence and the recruitment of competent and performant public servants. One of the instruments to realize this objective is, no doubt, the legal status of the public servants. This study is aimed to identify and analyse the elements of vulnerability witch the Law 188/1999 concerning the public servants and the project of the Administrative Code contain, from the perspective of the political influences. The main issue of the study is to be aware of the institutions, procedures and factors witch make fragile the legal status of the public servants, allowing, by example, the political parties membership of the public servants or their recruitment in absence of a national competition, organised by an entity specialised in the development of the public function in Romania. The project of the Administrative Code brings remedies only in part for the existing problems, while amplifies others. O very difficult, actual and vulnerable matter is the policy of salaries of public servants, in the context of the Decision n. 794/2016 of the Constitutional Court. The research has an explicative, but also a critic character. Also, solutions are offered in order to increase the degree of accomplishment of a competent, transparent and political neutral administration.

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Authors: Lecturer Oana ȘARAMET

Separation and balance of powers is one of the fundamental principles which is a fundamental element of the rule of law in any contemporary. The recognition of this principle does not imply that even public administration authorities must have a rigid behaviour, and that they are not allowed to have and exercise a discretionary power, a right of appreciation. However, the exercise of such power or right must be within the limits of that principle and, implicitly, of the principle of legality. Nowdays, we can observe that any public authority, as well as those in the sphere of public administration, tries to force the limits of its discretionary power, or such a behaviour could affect the correct and constitutional functioning of the rule of law. This article is intended to be only an initial approach to identifying the constitutional aspects relevant to the proposed theme by using methods such as comparative or systemic method. Thus, we want to identify those constitutional mechanisms that constitutional legislators have established to prevent overcoming the limits of this discretionary power. Later, through other articles, we will have the opportunity to identify the risk factors that arise in such situations, as well as possible solutions to reduce or even eliminate these factors.

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Authors: Professor M. Elvira MENDEZ-PINEDO

The Directive 2014/17/EU on mortgage credit agreements for real estate properties (Mortgage Credit Directive or MCD) reflects the classic tension in the European Union (EU) between the goal of attaining a European single mortgage credit market and the obligation to provide a high level of consumer protection. The classic approach of EU law to solve the tension is to find a balance between those aims through the interaction of public/private law. The article starts with a summary of the most important choices done by the legislator (exante information duties and responsible credit) and essential consumer right. It follows with a critical assessment of the MCD. The methodology of this study is both descriptive and analytical, law is considered not only a normative system but also a set of policy instruments influenced by other disciplines (ie. economics). The findings lead both to optimism and to criticism. Although the European harmonization represents a further step ahead in the area of financial services and consumer protection, some critical questions are still forgotten or left aside. The most important question remains unanswered, whether the MCD will protect consumers when the next economic/financial crisis inevitably arrives. The implications are clear: more research and better policy are needed.

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Authors: Professor Rafał SZCZEPANIAK

As you know, the language level is one of the main research areas of jurisprudence. The author puts forward the thesis that the adopted language apparatus has a significant influence on the research results in legal sciences. This is particularly evident in the analysis of the application of private law to the public sector. The article indicates the semantic problems faced by the author analyzing the application of private law in the public sector. The source of these problems is the adjective "public" that appears in many terms. In addition, there are problems of comparative nature. There is a phenomenon of non-translation of terms from individual languages. Other problems consist in the fact that the use of certain concepts is associated with the adoption of certain initial assumptions. Not always, the authors who write about the application of private law in the public sector are aware of this. An example of such a situation is the concept of "Fiskus".