Perspectives of Business Law

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Authors: Claudiu Ramon D. BUTCULESCU

This article studies the relationships and interactions between fundamental human rights and natural law school. The objectives of this paper are circumscribed to the way fundamental human rights, by their nature, can be integrated within the doctrine of natural law or to the contrary, may be related to various branches of legal positivism. In specialized literature, it was pointed out that fundamental human rights constitute genuine natural rights which have the same natural law recognized attributes: immutability, non-alienable nature et. al. However, in the context of contemporary changes within the European Union, generated by cultural differences which are becoming ever more significant, the question rises of whether those rights are in fact a creation of legal positivism. Within the paper there are several doctrine opinions described, as well as some arguments for reconsidering the placement of fundamental rights within the sphere of legal positivism. Using the comparative method, the study analyzes the common points and the points of divergence between fundamental rights and the doctrines of natural law and legal positivism, seen through the prism of the general theory of systems, legal culture, legal colonialism and legal ethnocentrism.

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Authors: Adriana DEAC

Lisbon Treaty on the Functioning of the European Union regulates Article 50 posbilitatea Member States to withdraw voluntarily respecting national constitutional provisions2. BREXIT (Britain and exit) is the term that has been named Britain's withdrawal from the European Union3. Following a consultative referendum held in the UK in June 2016 52% of the votes cast were in favor of leaving the EU. The new prime minister of Great Britain, Theresa May announced that by the end of March 2017 the government he leads will invoke Article 50 of the Treaty on the Functioning of the European Union, triggering the formal withdrawal, it will be finalized by in late March 20194. Beyond the political and economic implications, unprecedented in the perste 60 years of the European Union (including the three European Communities), the procedure of withdrawal from the European Union and Brexit site raises a number of legal issues, uniqueness being the consequence of the that such a procedure has never been used again anyway not in this form, on the one hand and, on the other hand, it is a state belonging to the system of common law based on judicial precedent which, in this case , does not exist.

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Authors: Radu Ştefan PĂTRU

In this study we analyze the provisions of the collective labor agreement concluded in the sphere of machine building companies and metal production for the years 2016-2017.The analysis will reveal useful aspects that complement labor laws and also the offending clauses in the field of labor legislation. Study findings lead to the formulation of proposals with the purpose to improve collective bargaining in terms of reporting of the collective labor agreements to the provisions of the law.

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Authors: Corina ARSENIE-SCARLAT

The successive suspensions of aid payments from 2011 and to date, as provided by the framework Law 284/2010-Annex ,7 for uniform pay, amended, section 3, have caused serious damage to property observance, as guaranteed by Art. 1 of Protocol no. 1, additional to the European Convention on Human Rights. ”Invoking the country's economic and financial situation by the legislator, in order to restrict the exercise of a fundamental right springing from a law that is still in force, is not sufficient, but that restriction must meet all the requirements specified in Art. 53 of the Constitution”2. The rules that have the effect of "sine die" suspending the rights of former employees, now retired, restrict and limit forcedly their rights guaranteed by law and cannot be considered democratic measures, as long as successive suspensions can affect the very existence of the law. Research methods used: direct documenting through case studies from personal law practice and not only, as well as from primary and secondary bibliographic documentation. Results and implications of the study: the impact of these rules that defer the payment of aids to former employees is significant, in that they bring material losses, but also that it violates the constitutional principle of the rule of law. Sue petitions pending lawsuit in courts have been formulated, whereby admitting the application of these rights and compelling former employers to pay the ”aids” given by the law, and largely the courts upheld these claims.

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Authors: Beatrice ONICA – JARKA Tudor CONTAȘ

In Romania there are several traditional or new arbitral Courts that are willing to provide their services to legal entities in an international context and in a competent and efficient semblance. Two of these, the Arbitration Court of the Romanian-German Chamber of Industry and Commerce and Bucharest International Arbitration Court, adopted their Rules relatively recent and eluded from practitioners reviews. Therefore, the present article will analyze the Rules of the mentioned arbitral Courts by comparison with the ICC Rules, LCIA Rules and HKIAC Rules, starting from the most valuable characteristics of international arbitration, as determined in the 2015 International Arbitration Survey3, with the purpose of concluding if the new arbitral Courts of Romania are important competitors in the field and if their recommended arbitration agreement should be included in the commercial agreements.

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Authors: Ioana-Minodora RUSU

The objective of this study is to examine the provisions of Directive 2011/99 / EU concerning the procedure for issuing and transmission of a European protection order. The examination highlights the need for a previously ordered protection measure, under which it may issue a European protection order at the request of the person seeking protection. Along with the conducted examination there were identified also depositions that may cause some malfunctions into practice, which is why there were formulated some de lege ferenda proposals, which may be considered by the European legislator. We highlight here the proposal that regards the need, within the procedure for issuing a European protection order, to ensure the right to defense to the protected person and to the person representing a danger. The paper can be useful to both academics and practitioners and also to the European legislator, in terms of operating the necessary changes.

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Authors: Dragos Lucian Radulescu

Labour jurisdiction represents the institution required to apply legal procedures by the means of competent bodies to resolve conflicts among employees and employers concerning the conclusion, performance or termination of employment. The application of labour jurisdiction procedures are related to the special nature of labour relations aimed at protecting the rights and interests of employees. The article details the procedural means to resolve individual labour conflicts in matters related to the compensation of material and moral prejudices of the employer resulted from the infringement of the legal duties of the employer in terms of violating the equal treatment and discrimination principle. There are also detailed the discrimination concept in labour relations, applicable law, legal effects as well as applicable discrimination criteria.

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Authors: Cristina-Simona CĂPĂŢÎNĂ (DUMITRACHE)

This article aims to examine the effects of the principle of non-retroactivity of law. While the first section deals with the principle of non-retroactivity of the law in terms of Romanian civil law, the next section presents cases of compliance, but also several cases of violation/breach of the principle enunciated, identified in the tax matter. By researching the date when legal acts or deeds are concluded or, as the case may be, committed or produced, in relation to the effects of the new law over them, we are submitting to a non-retroactivity test some texts from tax laws governing the obligation of the taxpayers to pay tax on profit when no longer meet the conditions to be micro-enterprises, obligation of the individuals without revenue to pay social health insurance contributions, the obligations of the persons carrying out transactions with related parties to draw up transfer pricing file. The effect of the facta pendentia situation is presented and analyzed on a specific case of transfer pricing, which may be misinterpreted as a breach of the principle of non-retroactivity of the law. Precisely for this reason the conclusions present utility both for law theorists and practitioners

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Authors: Mihai Adrian DAMIAN

An important area to which the Law No 287/2009 brings significant modifications is represented by the means in which are approached to legal ways for protecting the natural person. By comparing the actual regulation with the one previous to the new Civil Code (Family Code – Law No 4/1953 repealed and Law No 272/2004 on the protection and promotion of the rights of the child) – Art 40 Para 1, Art 41-42, repealed) we notice that if most of the means for protecting the natural person are still the same – the tutelage, guardianship and the placement under interdiction –, the application of these measures has registered significant changes. The family council stated by the new Civil Code is totally different in its composition, role and situations for which is established, by the institution with the same name stated by the Law No 217/2003 for the prevention and combat of domestic violence, defined as being the “association without legal personality and patrimonial purpose, formed by the family members with full capacity of exercise”, for the prevention of the conflictual situations and the mitigation between the family members. From the content of the texts referring to the family council it results that it is a consultative organ (without legal personality), appointed by the family court, with the role of overseeing the means in which the guardian fulfils his rights regarding the minor’s person and assets.

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Authors: Marieta SAFTA

The Judges’ possibility to submit dissenting / concurring opinions is disputed as arguments are brought both for and against it in the context of the obligation to ensure the secrecy of deliberations. This study, bringing landmarks of the European Constitutional Courts’ legislation and case-law on the subject, demonstrates the role of the dissenting and concurring opinions in the development of the law, emphasizing the idea of balance for their formulation and grounds.

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Authors: Simona CHIRICĂ

Constantly increasing interest rates along with the recent economic downturn represent real challenges not only for the tenants but also for the landlords. Usually, the economical blockage is reflected on the business performance of the landlord of commercial premises whose tenants, succumbing to the pressure of creditors and the repercussions of excessive pecuniary obligations intend to file for a reorganization plan.

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Authors: Bazil OGLINDĂ

The trusts have been frequently used in the countries which function under the Anglo-Saxon law system, but it most certainly represents an innovation in the new Romanian legislation. For this reason, in this paper, we tried to highlight the main differences between the trust regulated in the Romanian Civil code and its corespondent in other legal systems. Observing that the trust in an institution that is mainly theoretical, and the reluctance of practicioners in using it, we tried to analyze the trust, regarding its practical side. In this paper, we will take into consideration the following aspects: the rights that the trustee acquires after establishing the trust, that will be explained through the new regulations regarding the division of assets, the quality of the parties and the limits in which the trustee may be held liable. Other important aspects are: the means that the new regulations provide in order to protect the interests of the creditors and at the same time, the fiduciary assets; the formalities which the law requires and the means of termination of the contract. In the end, in order to identify alternative solutions, we will compare the trust (regulated in the Civil code) with the management of assets that belong to a third party.

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Authors: Cătălin Cristian SELIŞTEANU

The Romanian Civil Code regulates, in the IXth Title (Various special contracts) of Book V (About obligations), a wealth of contracts, in a greater number than the old civil legislator (sale and purchase, exchange, lease, society, transport, warehouse, insurance, loan etc.), but the subject of this article makes me move towards the assurance contract. The insurance activity materializes as a contract by which, according to the Romanian Civil Code, the policyholder or the insured is obliged to pay a premium to the insurer, and the latter undertakes, if the insured case occurs, to pay an allowance, where necessary, to the insured, the insurance beneficiary or the injured third party. The insurance contract is commonly used in business because operators are subject to numerous risks and, for the safety and future of their business, for this activity to have as much life span as possible, they must ensure all goods and persons representing "the engine" of their business, as well as the licit/illicit unexpected events. The insurance area is a business, and more than that: it can support a business.

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Authors: Silvia Lucia CRISTEA

This paper aims to put forward the views of students who take part in learning processes in order to understand the perceived challenges and use that information to improve the quality of the Business Law module to be developed. The mechanism of legal education in English will be then discussed, with particular reference to this process as it unfolds in the Bucharest University of Economic Studies. This action research–based study will highlight the importance of teachers’ self-perception adjusted to new approaches. What is more, initiating change in the teaching-learning context these academics operate in might be a justified conclusion and the main arguments to support or dismiss it will be presented.

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Authors: Aurel Octavian PASAT

The study undertaken aims at analyzing and determining the status, structure and dynamics of crime in the customs sphere, stressing that the charging structure in customs crime contributes to the knowledge of numerical composition and morphology (forms of crime) crime in a particular period and into a specific geographical area, understanding the general condition, overall, or those particular detailing the phenomenon on various statistical indicators, based on which can be carried out comparative studies on certain periods to see trends and dynamics of the whole and different parts , analytical, allowing the formulation of weather and detection determinants contributing to the commission of unlawful acts in the customs sphere. In the study they were used various research methods, including: analysis, synthesis, deduction, induction. In order to intensify the struggle with the phenomenon of crime in the customs sphere in the study are advanced some proposals to improve the legal framework incriminating. In the same row it was argued the need to shift prosecution competence as specialized subdivision besides the National Customs Authority in order to streamline the recording and investigation of customs offenses.

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Authors: Raul Sorin FÂNTÂNĂ

The growing number of complex processes with the specific intellectual / industrial property demonstrated the need for highly qualified experts called in solving technical problems in the court files. The expertise in such field obliges to detailed knowledge of domestic and international law. However, those processes have as conjugate subjects: counterfeiting inventions, trademarks, industrial design; unfair competition; calculating damage that leads to highlighting the economic benefits, the latter requiring economic assessment of an intangible asset using in formula, in addition to economic data, micro - and macro-economic risk factors. Conflicts arise in a specific space. It is therefore necessary detailed knowledge of company law, competition law, that relating to interest, insolvency and bankruptcy in their developments. It should be considered domestic and European legal practice, as well as the rapid evolution of the meaning of legal terms and concepts. Experts have to understand solutions given in the prior complaints for correct interpretation of the provisions of the agreements, laws and regulations derived. The paper refers to one of the most complex expertise reports, which forced expert to integrated legislation acquaintances on patents, on insolvency and interest - in their evolution. But fundamentally, the expert had to understand the phenomenon of engineering and how to measure economic efficiency in the case of a divided invention.