Juridical Tribune - Tribuna Juridica

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Authors: PhD. student Tamar MSKHVILIDZE

This paper aims to investigate the application of foreign law in higher courts practice. The process of determining a foreign law raises practical difficulties, as a judge must apply not just foreign law acts, but also the case law and interpretation with which it is applied in another State. In private international law process the effectiveness of the application of foreign law depends on how correctly and delicately can the higher courts review decisions made by the first instances. In some countries, higher courts have the power to control the correct application or non-application of foreign law by judges, but in some cases, such courts lack this ability. In spite of the development of comparative jurisprudence and modern information technologies, none of the countries’ judge can have a claim on exact knowing of relevant standards of the law of foreign countries. Consequently, the danger of making a mistake is more greater when it comes to interpreting and applying foreign law. Thus, it cannot be expected that the higher court should be able to review interpretation of foreign law acts applied by the lower courts and to provide that this interpretation is relevant to that which the practice of the foreign country would adopt on the same question. There is an opinion that the higher courtsshould refrain from control the wrong application of foreign law in order to guard their own authority, as there is a high risk of misinterpretation of a foreign rule. The different aspects of this problem will be examined in this article.

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Authors: Prof. Oleksandr SHEVCHUK; PhD. Oleg BULULUKOV; PhD. Oleksandr LYSODYED; Prof. Valentyna MAMONOVA; PhD. Yurii MATAT

A key feature of modern legal relations in the healthcare sector is the widespread use of digital technologies. This study describes certain aspects of the legal regulation of the human right to virtual reality in the healthcare sector and the problems of law enforcement. The methodology of this work is based on an interdisciplinary approach using comparative legal, dialectical and systemic methods. The main objective of this article is to determine the forms and directions of the use of virtual reality in health care in the context of human rights. It is emphasized that the introduction of smart technologies, virtual reality in the healthcare sector is the main modern trend in the development of healthcare in order to improve the provision of healthcare services. The human right to use virtual reality in healthcare is to ensure the actions of virtual reality users within the framework of virtual information relations in the healthcare sector, which are governed by the relevant legal norms. The human right to use virtual reality in healthcare is a fourth generation of human rights. These rights include all rights that have arisen as a result of scientific progress, the development of morality, namely "somatic rights", as well as information rights. The use of virtual reality in the healthcare sector is possible in the following areas, namely: (1) medical training, (2) surgical modeling, (3) rehabilitation, (4) psychotherapy and psychology, (5) ophthalmology, (6) telemedicine, etc. It is stated that user safety, privacy, freedom of expression, ethics and copyright protection in the use of virtual reality in healthcare require legislative regulation, taking into account the European experience. The virtual space in the healthcare sector provides opportunities for the realization of human rights and freedoms regarding the preservation of their health, but can be used to carry out actions that contradict the norms of law and have illegal behavior. The latter requires an improvement in the regulatory framework when using the virtual space of the healthcare sector to protect the interests of the individual, society and the state using international standards.

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Authors: PhD. student Michał NAJMAN

In the current legal discourse, the concept of dignity is becoming more common. It is considered the highest axiom, which every violation deserves to be condemned. However, we forget about the conceptual basis of a given concept, its history and original overtones. We do not remember that certain concepts are created solely to systematize the created or existing social and political situations. The purpose of the article is to attempt to answer the question of how to understand the concept of dignity in legal discourse. It is worth bearing in mind that dignity is indicated as "this" (value or maybe something else) from which human rights originate. That is why it should be rejected as a value because the value itself is not a value. However, one must opt for an objective understanding of dignity, rejecting its moral background proposed, among others by the doctrine of the Catholic Church, if we want to treat it as a legal category.

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Authors: PhD. student Alexandru BOSTAN

The paper presents the emergence and evolution of the concept of transnational law, from the Philip Jessup’s 1956 novation to the latest approaches, mainly from the western legal scholarship. In the legal writings from Romania or Republic of Moldova, the phenomenon of transnational law remains unexplored or, at best, mentioned incidental as a synonym of a modern “lex mercatoria”. Likewise, in Russian scholarship, research on transnational law bears a strong private imprint and ubiquitous reluctance may be noted. This article aims to discuss, from the perspective of legal pluralism, the loss of the state monopoly in law making, the pluralization of sources of legitimacy for transnational actors, and the reconsideration of the scope of the law, by de-territorializing it. Transnational law is seen thus not just a private regime, but as a system of normative law that transcends international or national law, acts in a distinct social space and addresses specific actors, not only private, but also public or hybrid. In Romanian legal knowledge this approach is missing.

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Authors: Associate professor Maria do Rosário ANJOS; Associate professor Maria João MIMOSO

This study is about dispute resolution procedures in international tax relations. It is an issue of international tax law with enormous relevance at a time of globalization. Objectives: analyse the cooperative relationship programmes and mechanisms to guarantee the correct interpretation of tax legislation between administrations, in the field of international commercial transactions and investments. Methodology: study of APA programmes; comparative study of solutions adopted by some administrations in EU; some internal mechanisms to resolve dispute in tax law. Some case studies will be analysed. Results: we concluded that when a company initiates a new investment, it should consider the possibility that controversy could arise down the line about the consequences of the investment on tax to pay. So, the APA programmes are very important and if they can’t be applicable there are other mechanisms to assure the equity in e tax law interpretation and application. The administrative collaboration, the modernisation of methods and change of information’s are definitely important to the international commerce in a globalization era.

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Authors: Assistant professor Monica Florentina POPA

In the last decades, the influence of the economic approach to law has expanded constantly, sometimes alarmingly so, efficiency and utility considerations steeping deep into the fabric of all aspects pertaining to the creation and application of law. Following a brief overview of the economic analysis of law, with references to utilitarianism, the Chicago School and their modern spin-offs, this article will attempt to convey the limitations that such an approach inevitably presents and some of its the practical consequences in the legal field. The main tenant is that the economic analysis of law is neither applicable to all subject matters, nor is it ideologically-neutral. The methodological instruments used for this research include, inter alia, the comparative method and case studies of both legislation and jurisprudence. The Covid-19 crisis of 2020 will inevitably augment the importance of the economic factors in shaping future public policies and legislation. The tendency to prioritise the economic considerations will prove difficult to resist for governments confronted with receding economies, rising public debt and social pressures of various origins. Therefore, we consider that a realistic debate on the pitfalls of the economic approach to law is necessary and serves not merely theoretical purposes, but practical ones as well.

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Authors: Candidate of legal sciences Iryna KUSHNIR; Associate professor Olha TSARENKO; Associate professor Serhii TSARENKO

The article deals with the identification of foreigners and stateless persons, problems of legal regulation of relations of the State Border Guard Service of Ukraine on collecting biometric data of persons, types of data subject to collection, processing, storage and administration. The problems existing in the mechanisms of collecting biometric data of foreigners and stateless persons, as well as issues of personal data protection are considered. An attempt was made to suggest changes to laws and regulations in the field of migration and border protection on the basis of empirical data. The goal is to investigate the mechanism of identification of foreigners and stateless persons during border control procedures at border crossing points (checkpoints) and at entry-exit checkpoints, as well as during administrative proceedings and to identify ways to improve the legal regulation of these procedures in the activities of the State Border Guard Service of Ukraine. The methods used in the research were the analysis and comparison of national legislation with the legislation of the European Union Member States and the Council of Europe (including the case law of the European Court of Human Rights) on biometric data. The questionnaire survey method enabled to obtain objective information about the border guards' awareness of personal data. The forecasting method was used to formulate proposals for amendments to the legislation to improve the organization of work processes in the activities of the State Border Guard Service of Ukraine when using IT systems. The research will enable to improve the procedure for collecting biometric data of foreigners and stateless persons by border guards, strengthen the capacity of the State Border Guard Service of Ukraine to combat illegal migration.

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Authors: Professor M. Elvira MENDEZ-PINEDO

Effectiveness is a principle frequently used by the Court of Justice of the European Union to secure the authority of EU law over national law. This study analysis the scholarly treatment of the concept in most relevant selected academic literature and draws some conclusions, mostly that difficulties remain surrounding the conceptualization of the principle. The Court uses it in a variety of ways and judicial outcomes are linked to the context of every case at hand. On one hand, we find effectiveness as a stand-alone principle or expression of general “effet utile”; but, on the other hand, we see the use of the term strongly connected to the effective judicial protection of individual rights and/ or as limit to national procedural autonomy. The concept is furthermore embedded in a complex matrix of various other principles of EU law, namely primacy, direct effect, indirect effect or the obligation of consistent interpretation, and Member State liability for breaches of EU law. The results of the study lead to question whether there is really one single concept of effectiveness in EU law and lead to further research in order to explore whether a comprehensive and coherent theory is necessary, feasible and/or desirable.

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Authors: Professor Leonid TYMCHENKO; Associate professor Valerii KONONENKO

In the study of the substantive legal grounds for the resolution of territorial disputes, the judicial form is characterized by the priority of the grounds of legal title (agreemental title, uti possidetis) based on international treaties, or legal acts of the state possessing sovereignty over the grounds of actual title (effective occupation and governning of the territory, tacit recognition, prescriptional acquisition). Like the initial occupation, the acquisition of territory on the basis of prescription has a long and effective occupation of territory as a prerequisite. The possession of alien or contested territory without a treaty may be legal and enforceable only when there is an inviolable, uninterrupted and undisputed exercise of possession. Where the disputable territory is in fact administrated by a state other than that which holds title, the International Court of Justice gives preference to the title holder.

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Authors: Full professor Jakub HANDRLICA

Traditionally, the scholarship of administrative law has paid only very limited attention to the phaenomenon of extraterritoriality. Hereby, the scholarship has reflected the theoretical considerations concerning the sovereignty of the State, which have implied that administrative authorities execute their functions exclusively in the territory of the State. At the same time, the scholarship of international public law has traditionally acknowledged that – as based on a corresponding international agreement – a State may allow the administrative authorities of a foreign State to execute certain functions in its own territory. This article aims to reconcile these two approaches, demonstrating that the phaenomenon of extraterritoriality has emerged to represent an integral part of the system of administrative law in various jurisdictions. This article also argues that this perception of administrative law actually fails to represent any new feature, but is based on traditional concepts existing in the public law of Europe. Thus, extraterritoriality must be considered as a part of the ius publicum europaeum commune.

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Authors: Associate professor Vira TOKAREVA; Professor Iryna DAVYDOVA; Associate professor Elena ADAMOVA

The aim of this paper is to consider the mechanisms of legalization of use orphan works, based on a comparative analysis of the legal regulation in the United States, the EU and European countries; identify priority ways to reform and to develop proposals for improving copyright law in Ukraine. In the first section the concept of the orphan works and the circumstances which caused emergence of the orphan works are revealed. It has been established that the problem of orphan works mostly concerns works whose authors died and heirs cannot be found. In the second section the models of legalization of orphan works in the United States, Canada, the EU and European countries are analyzed and these interferences formed a proposal for Ukrainian legislation. In the third section the background of development of legislation of orphan works in Ukraine are studied. The neсessity to study the legal regulation of the United States, the EU and European countries in light of the recodification of the Civil law of Ukraine and seeking way of its renovation is substantiated. Developing effective mechanisms of using orphan works are stated to become relevant in the process of digitization of libraries’ collections and to have gained a new momentum in recent years. Its result has been provided open access to the works on the Internet.

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Authors: Professor Dan Claudiu DĂNIȘOR; Associate professor Mădălina-Cristina DĂNIȘOR

Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.

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Authors: Associate professor Maryna GLUKH; Associate professor Viktoriia SERDIUK; Associate professor Pavlo SELEZEN; PhD. Anton BABENKO

Interpretation of double taxation treaties is of utmost importance for application of their norms according to the criteria of good faith in compliance with the provisions of the Vienna Convention on the Law of Treaties. At the same time, there is no consensus in understanding the role of the OECD MC and its Commentaries as means of interpretation of double taxation treaties. As it is demonstrated on the basis of the development of court practice in Ukraine, the present situation does not add certainty to implementation of double taxation treaties and might even have the negative effect on investment climate in a state of source of income. The article does also contain the ways of improvement of application of the OECD MC and its Commentaries during the implementation of double taxation treaties of Ukraine including (1) preparation of the letter on issue of application of the OECD MC and its Commentaries as a source of interpretation of double taxation treaties by the Supreme Court of Ukraine, (2) granting of the technical assistance to tax authorities of Ukraine in the area of application of double taxation treaties in accordance with the international standards such as the OECD MC and its Commentaries and (3) translation of the OECD MC and its Commentaries into Ukrainian language.

15

Authors: Professor Ioan SCHIAU

The concept of agency was developed and refined in the common law system and, thereafter, imported in the continental civil law system where was confronted with the classic institution of the mandate, based on the representation principle. The modern context of the commerce globalisation and the need to assimilate legal instruments that are often used in the international trade, determined the global and European lawmakers to seek a proper harmonised regulation for the agency contract. Romania produced a first regulation of agency through Law 509/2002 regarding the permanent commercial agents and, thereafter, continued the process through the incorporation of the subject in the Civil Code. This paper examines the conformity of the European and Romanian regulations regarding the agency with the initial concept that, purportedly, inspired the afore said lawmakers.

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Authors: JUDr. Daniela NOVÁČKOVÁ; JUDr. Jana VNUKOVÁ

The scientific thesis aims at theoretical definition and analysis of provisions on competition policy in selected international agreements, which affects the development of fair international business. Fair competition works effectively if entrepreneurs at the market can make their business decisions independently, while there has to be a legal framework applicable to protect the rights of competitors. At the international level there are several legal instruments applicable, which have a positive effect on fair competition among competitors in the market. International agreements concluded at the level of the European Union with non-member countries contain provisions on healthy competition. Our intention is to identify those international agreements containing competition provisions that affect the behavior of entrepreneurs operating in international markets and obliged to respect competition rules, as they aim to achieve economic benefits. The European Union is undoubtedly involved in the process of global competition protection.

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Authors: Associate professor Oytun CANYAŞ1 Associate professor Aslı BAYATA CANYAŞ

This study firstly analyses the general approaches of EU and US laws to the right to be forgotten. Then, basing on the right to be forgotten, a variety of dimensions from comparative law, court practice, doctrinal views and different legal sub-branches are considered from the aspect of Turkish law. Although there is no specific provision on the right to be forgotten in Turkish law, the right has been subject to doctrinal discussions from different perspectives. It is also referred to in court judgments, specifically when an individual wishes to erase certain news, data, etc. from the digital and/or non-digital archive so they can make a fresh start to a new life. Granting that person the right to be forgotten is in terms of protecting personality rights and privacy while acknowledging that these interests may compete with rights to press freedom and freedom of expression. After scrutinising the doctrinal view and court judgments, this study concludes that considering Turkish law, certain provisions should be enacted on the right to be forgotten to ensure uniform interpretation and clarify the definition and conditions of application.