Juridical Tribune - Tribuna Juridica

6

Authors: Associate professsor Cătălin-Silviu SĂRARU

This study investigates the emergence of the science of administrative law in Romania and analyzes some introductory notions in Romanian administrative law: definition of administrative law; the object of regulation of the Romanian administrative law; and the features of administrative law. Administrative law is the branch of law that encompasses the legal norms governing social relations regarding the organization, activity, control and liability of the public administration, based on and in the enforcement of the law. Administrative law implies an administrative legal regime for regulated social relations justified by the specific nature of the realization of the public interest, the administration of the assets subject to the public property and the provision under the continuity and permanence of public services.

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Authors: Teaching assistant Ramona Mihaela COMAN

Although it is one of the fundamental principles of the criminal process, whose observance is required at all stages of the trial, a nd therefore in the criminal prosecution stage as well, the principle of the presumption of innocence is often "forgotten" or transformed into the "presumption of guilt" when a tax evasion crime is under investigation . The major interest in investigating t hese offenses is the recovery of the damage, which is why there is a need to find solvable persons who are involved in these activities. Due to the fact that most of the times it is difficult to prove their involvement, in practice one can notice a tendenc y to prosecute such persons for the simple fact of having purchased products or services from dummy companies . The article presents examples of judicial practice and seeks to argue the mistaken view of criminal investigation bodies in the light of European directives as well as ECJ jurisprudence

8

Authors: Assistant professor Raluca TOMESCU

The present study aims to discover in the doctrine the reason that has generated the basis for which the legislator not only recognized the institution of possession alongside the sacred and complete right of property but also confers defence to a state of affairs through a real action specific to the defence of a states of law. The possessive action is recognized as a real action, which in principle requires an action aimed at capitalizing on a real immovable right, but in this hypothesis the possessive action protects only the state of fact called possession, without questioning the state of law. If property is right, possession is nothing but the fact, but possession has, over time, been imposed as a fundamental institution of civil law. The major importance that the possession has developed in the context of the civil circuit of values has ensured it a constant legislative consecration throughout history. The unanimously recognized possession as state of fact is gaining value through its legal effects, occupying both the theoretical and the practical concerns of the jurists, both from a theoretical and from a practical perspective, joining the full right of property. Without limiting the importance of possession to its main effect - acquiring the right to property by means of an acquisitive prescription, apodictically possession corresponds to the property right itself, being an attribute of it. Under these circumstances, the defence of possession through a real action is merely a situation of normality..

8

Authors: Student Ana-Maria Iulia ŞANTA

Cartels are nowadays a global issue, affecting consumers from all over the world. As the consequences of anticompetitive agreements have an impact at extraterritorial level, with implications beyond the market where the cartel operates, cartel investigations have a global dimension. Cartel members, which are global players, should be aware of this aspect, as in some jurisdictions, for example in the United States of America, cartel agreements are a criminal offence, as they harm the consumer. The present paper will analyze the approach to cartels in the United States of America and in the European Union, it will deal with the research question if cartels are seen as criminal in several jurisdictions and it will point out aspects of international cooperation in fighting against cartels, in order to ensure consumer protection. The research questions will be illustrated by case-law and case-studies that will serve as examples. The present paper will use an interdisciplinary comparative research approach, with focus on an international perspective related to cartel enforcement at a global level.

9

Authors: PhD. student Alina POPESCU

The right to information, the citizen's fundamental right, must be regarded as a right whose scope is wider, to the extent of social evolution. More and more often, the need for individual information is observed in the most diverse areas, including the economic field. In my opinion, economic information cannot be approached without reference to information regarding capital markets. The information provided to investors must be upto- date, real, not likely to distort the natural course of the market or be manipulative or misleading. Citizens need market information as an individual right to information, but society as a whole needs well-informed citizens with a minimal economic and financial culture, in order to develop harmoniously and avoid potential attacks on system stability. A relevant, accurate and current piece of information provides the investor with protection and gives him the opportunity to make informed economic and financial decisions. Also, free movement of capital market information, within the limits of competition rules, provides the guarantee of a stable, fair and risk-free market.

10

Authors: Professor Constanţa-Nicoleta BODEA; Associate professor Augustin PURNUŞ

Building Information Modeling (BIM) is an innovative approach to design and construct buildings, which has changed the practices within the construction industry. Different categories of stakeholders, such as architects, construction companies, professional associations, academia and even the policymakers, who have defined national policies and strategy documents to facilitate the BIM adoption, have been interested to understand BIM and its implications for the business environment. The legal implications of adopting BIM in construction projects represent one of the most recently discussed issues, which is still not fully understood and not followed by concrete risk mitigation actions. The paper intends to underline some of the legal implications of adopting BIM, mainly in relation to the procurement and contract strategies. The paper concludes that it is expected that BIM will bring more transparency in the construction project implementation and will enable a more comprehensive audit trail leading to fewer legal disputes.

11

Authors: Associate professor Bazil OGLINDĂ; Lawyer Cristina OLARIU

Identifying the best legal and business solution, especially in the case of an international sale of goods contract can become a real challenge for the parties involved. In addition to CISG, which generally governs these type of contracts, choosing the Incoterms option which best suits the needs of the parties involved can represent the significant difference between a successful business or the appearance of disputes between the parties. Which are the options for the distribution of risks? What should the seller and the buyer pay special attention to? How does the CISG and Incoterms harmonize with the national legislation regulating the risk in the sale contract? Our objective in this paper is to present the scenarios and find possible solutions to all these issues.

13

Authors: PhD student Mihaela-Emilia MARICA

The literature centered on the investigations into the implications of this activity sector, reveals that – in addition to the usual risks entailed by most atypical work arrangements, some of them even increased in the case of homeworkers and teleworkers – these workers are further exposed to the risk of social isolation, because they lack direct social contact with their peers, colleagues and organization members. The vulnerability of homeworkers is aggravated by labor legislation, as this category of workers face major difficulties in the complete, effective exercise of some rights, although the law acknowledges the equality in rights and treatment between the employees with standard work contracts, and the employees opting for flexible work opportunities. In most cases, the remuneration and social benefits granted to the latter, are lower than the payment and social benefits offered for the same type of work, to an employee working at the company’s precincts.

15

Authors: Lecturer Carmen Oana MIHĂILĂ

The ability of man to be inventive and creative has led to economic development and social progress, but also to the creation of a real danger to his health and life when talking about the counterfeit and falsified drug market 2 . Ensuring the observance of intellectual property rights is essential worldwide in public health or safety policies, as counterfeiting poses a threat to people. The consequences of medication counterfeiting on health are quite difficult to assess. The methods of counterfeiting and the ways in which such drugs reach consumers are diverse. We are talking about direct sale, import, packaging change (original packaging, but counterfeited drug), falsification of the prospectus or attachment of a leaflet in another language, application of counterfeit (holograms) on packaging, advertisements, on the Internet, by press, fictitious terms of validity. The paper analyzes the national provisions containing regulations related to the sale and counterfeiting of medicines, as well as the European ones in the field, as well as the measures that can be taken to reduce the risk of their use. There are also some examples of this case related to illicit selling and counterfeiting of medicines.

16

Authors: PhD. student Cătălin-Radu PAVEL

The aim of this piece of research is to analyse the constitutional references of Article 52 of the Constitution of Romania, namely the guarantee of the right of a person aggrieved by a public authority. Therefore, the guarantee of this fundamental rights helps ensure the good administration of the rule of law, the respect for the legitimate rights and interests of Romanian citizens and, implicitly, of Romanian businesses environment. Good administration concerns the interest of both natural persons and legal persons who are engaged in the economic circuit and whose rights are granted by the fundamental law. Good administration is accomplished by granting the fundamental right of a person aggrieved through an administrative deed or through a request which was not settled within the legal time limit and, at the same time, by granting to that person a right to approach the competent authorities and to be entitled to obtain the recognition of the claimed right or of the legitimate interest, with the annulment of the deed and the repair of prejudice, respectively. The liability of the State for miscarriage of justice, as well as its right of recourse against the magistrates who acted in bad faith or serious neglect in their position are also granted. The methods used in drawing up this study are: the comparative method used to identify the right of a person aggrieved by a public authority in the Romanian Constitutions and in the Constitutions of other states, and the historical method, which was used in the analysis of the historical evolution of the studied field. The logical method served to analyse the current research in the field, while the sociological method helped to study social impact. The quantitative method was used to study the relevant applicable legislation. The results of this research have highlighted the current trends and the need of citizens and economic actors to benefit from good administration by public authorities. The implications of research for ensuring the good administration of citizens, economic agents and implicitly, of the business environment, reveals how important it is to ensure the supreme values, granted by the Constitution, namely the right of a person aggrieved by a public authority, a fundamental right analysed in this study.

16

Authors: Professor Marta-Christina SUCIU; Associate professor Mina FANEA-IVANOVICI

The current technological and scientific revolution taking place within the larger context of knowledge and innovation based society and economy has changed all aspects of life, including those related to cultural content consumption, creation, access and distribution. Although art galleries, libraries, archives and museums will continue to exist and function in a physical form, there has been noticed a trend is to preserve and provide access to world cultural heritage by means of digital libraries. Among the European objectives included in the Europe 2020 Strategy we find the digitisation of cultural content and the development of a library that can store and preserve European culture – Europeana. The main objective of this paper is that of debating the main stakes of access to digitised cultural content, such as it is found in digital libraries, A particular focus is set on the issue of intellectual property rights. The study specifically refers to the case of the European Digital Library, Europeana. The main scientific research method used in the paper is the critical analysis of IP legal regulations. Thus, we debate the main implications of these regulations for the process of digitisation, and we next identify the main current legal opportunities for and obstacles in the way of cultural content digitisation.

22

Authors: Mg. iur., PhD. student Armands SMANS

The prevailing importance of material values in contemporary society, undoubtedly, influences the nature of crime. At present, the main aim of criminal offences is to gain material benefits. In such conditions, in the majority of criminal cases it is inconceivable that the purpose of criminal proceedings could be reached without effective resolution of material issues of criminal procedure. The article examines the regulation on handling criminally acquired property in the Latvian criminal procedure, as well as assesses the impact of this regulation upon the business environment. I.e., the study provides answers to questions related to protecting the rights of a merchant as a victim, by using the tools envisaged by the Criminal Procedure Law. The study also examines business risks linked to such cases, where law enforcement institutions presume illegal origins of a merchant’s property. The research also focuses on implementation of the aforementioned legal instruments in correlation with human rights recognized in the European Union. The article provides an insight into the relevant issues in the Latvian criminal procedure in connection with confiscation of criminally acquired property or returning it to the victim, as well as into Latvia’s experience in implementing the Directive 2014/42/EU. Hopefully, the findings expressed in the article will be useful both for the theoreticians and practitioners of criminal procedure and will contribute to international sharing of experience. The following research methods have been used in preparing this article: analysis and synthesis of legal literature, of case law, and regulatory enactments; comparative method, analytical method, inductive and deductive method.

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Authors: Ph.D. student Ivica PAVIĆ

This paper discusses the legal nature of human dignity as well as whether and in what manner it merits consideration in the prison privatization decision - making process . The first chapter grasp s the complexity of the legal concept of human dignity by analyzing how it is approached - its status, roles and content - in notable international and domestic regulations, soft law, sociologic al and legal theories . The second chapter discusses the qualitative characteristics of the decision to privatize pris ons and argues that it is primarily legal (constitutional) in na ture, the importance of agent identity and its effect on conceptual permissibili ty of prison privatizat ion based on the rationale theory of conceptual limitation to privatizing prisons by Dorfman and Harel , and finally, presents the institutional and human rights aspects of prison privatization as discussed by Barak - Erez and Feeley following the 2009 constitutional review decision of the Supreme Court of the State of Israel which held prison privatization to be unconstitutional. T he conclusion attempts to formulate a n acceptable legal defin ition of human dignity, gives a summa ry of author's opinions , and assesses the influence o f presented argumentation on recommendation of prison privatization as long - term or short - term solution f or addressing human rights violat ions with overcrowding as underlying cause.