Juridical Tribune - Tribuna Juridica

364 - 389

Authors: Professor Jeton SHASIVARI; Associate professor Bekim NUHIJA

In order to effectively prevent the COVID-19 Pandemic, for the first time in the history of the Republic of North Macedonia by decision of the President of the Republic on March 18, 2020, a state of emergency was established, which in addition to intensified measures to protect public health, also implied the introduction of a special legal regime whose basic characteristics are: deviation from the constitutional principle of separation of powers and taking over by the Government of legislative powers and the opportunity to limit basic human rights and freedoms and to take intervention measures by the executive power in economics, education, labor relations, and other spheres of social life. In this regard, the declaration of a state of emergency has activated the constitutional authority of the Government to perform its legislative function. Unlike other constitutions that regulate in more detail the powers of the Government, parliamentary control, enactment of decrees with the force of law and other regulations, as well as the restriction of human rights in a state of emergency, the Constitution of North Macedonia does not contain special provisions on the government powers, except enacting decrees with the force of law. Due to such a constitutional gap, the question remains whether such regulations remain in the legal system even after the state of emergency ceases. The Constitution of North Macedonia only stipulates that the authorization of the Government to adopt decrees with the force of law lasts until the end of the state of emergency, which is decided by the Parliament, without considering the situation when the state of emergency is declared not by the decision of Parliament but by the decision of the President of the Republic. With this paper authors by explaining the principle of the Rule of Law as a generally accepted International and European standard in such situations, using: normative legal method, comparative legal method, intentional, systematic and objective interpretive methods, will focus on the specific analysis of the judicial control of decrees with the force of law by the Constitutional Court of North Macedonia, in terms of, to what extent the principle of proportionality was respected in the adoption of such decrees which derogated existing laws in order to protect the public health of citizens.

419 - 426

Authors: Professor Yuriy ONISCHYK; Professor Olena MAIDANNYK; Associate professor Yaroslav ZHURAVEL; Senior researcher Pavlo SELEZEN

Double taxation agreement is one of the most widespread type of international treaty regulating financial relations. The efficiency of its application as a source of financial law depends on the features of the legal basis for implementation of its provisions into domestic legal orders of contracting states. Based on the practice of Ukraine, there is an attempt to describe key challenges in application of provisions of international treaties in the context of the requirements of the Tax Code of Ukraine based on the application of comparative method: 1) the legal status of double taxation treaties of Ukraine that are still in effect based on the fact of legal succession of Ukraine; 2) the legal status of protocols to international treaties concluded between competent authorities of contracting states; 3) the legal status of mutual agreements concluded on the basis of the provisions of double taxation treaties.

442 - 454

Authors: Associate professor Mariia KARMALITA; Associate professor Anna NECHAI; Associate professor Tetiana SHOLKOVA; PhD. student Kostiantyn HUBSKYI

This article analyzes the legal basis for the realization of private and public interest in taxation, ways to establish a balance between private and public interests as a basis for a “tax security” of the state. It is stated that: 1) the peculiarity of Ukrainian legislation is the insufficient balance of private and public interests in taxation; 2) the balance of private and public interests in taxation should be implemented at the level of law; 3) the state has not yet established a climate of trust between the state and taxpayers due to imperfect tax legislation, frequent changes in tax rules, low level of professional training of tax officials, low level of service for taxpayers by the tax authorities and lack of transparency in using the public monetary funds by government bodies. The current correlation and the ratio of private and public interest in in the legal literature and in tax legislation is analyzed, recommendations for its improvement are offered. The foreign approaches to the balancing of the private and public interest in the tax legislation has been reviewed. The concept of "tax security of the state" is formulated, the basic requirements to its maintenance are defined, namely: 1) existence of clear transparent procedures of realization of norms of tax laws; 2) existence of a highly professional tax service; 3) existence of established appropriate level of tax culture of the population which allows to increase revenues through voluntary payment of taxes.

466 - 492

Authors: Associate professor Sónia de CARVALHO

Commercial distribution corresponds, in the economic process, to the activity of intermediation between supply and demand, through which the producer, using intermediaries, manages to deliver products and services to consumers, while at the same time seeks to know and satisfy the demands of the latter. Within the industrial revolution, mechanization combined with new production techniques, allowed production directed towards self-consumption to be replaced by surplus production, on a large scale, which created the need to dispose of goods. With the advent of industrial capitalism, the industrial enterprise started to assume the central role of the economic system, with trade being relegated to a secondary role. The producers, in view of the surpluses resulting from mass production, began to feel the need to resort to intermediaries who would assume the distribution of the products in several markets, namely, in distant markets. Distribution gradually begins to become independent from the production, presenting itself as an auxiliary activity for the industry. In this sense, commercial distribution is no longer centred on the physical distribution of products, but takes on a series of activities aimed at adjusting supply to demand, which includes attracting customers, providing after-sales services, financing and risk-taking, consultancy, promotion and advertising, among others. These activities are articulated in more or less complex processes. Thus, distribution begins to represent the main means to increase the company's profits, becoming the object of study and deepening. However, given the insufficiency of the occasional purchase and sale contracts to cover the web of intricate obligations required in the distribution of goods to the various operators of a distribution chain, leading to an undesirable increase in distribution costs, there was a need to create more sophisticated contractual schemes. In contracts, such as franchising, it is possible to witness the productive integration of the distributor into the producer network, accompanied, in different degrees of intensity, by the attribution and recognition of intellectual property rights. This contract was associated, both in the United States, a country where it first appeared, and in Europe, to periods of economic recession, in which excess supply in face of demand will compel producers to conquer new markets. This objective, owing to the difficulties of the producer to assume the distribution of the products, given the lack of capital, characteristic of post-recessive times, will be achieved through the delivery of the distributive function to the distributor, thus seeking, in accordance with the principle of division of labour, achieve greater efficiency. The crisis currently experienced worldwide following the Pandemic COVD 19 and the role that this contract can play in the economic recovery, makes it imperative to revisit this contract in order to approach its modalities, advantages and the legal framework.