Perspectives of Business Law

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Authors: Associate professor Brîndușa VARTOLOMEI

In the field of the law governing the legal work relations one of the features that also contributes to defining the autonomy of labor law is that of the existence of the specific sources of law consisting in regulation on the functioning of the employer, internal regulation, collective labor agreement, and instructions regarding the security and labor health. In addition, in the practical field of the labor relations some indirect (or derived) sources of law were also pointed out as coming from the employer and having general and permanent character. They are considered as being labor law juridical acts.

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Authors: Lecturer Claudiu Ramon D. BUTCULESCU

This article addresses some aspects of legal communication or legal effects of communication. As such, legal communication can have positive and negative effects. Both effects are briefly analyzed, and for the negative effects of legal communication we have also presented proposals to reduce the negative effects of law communication. Thus, the article presents the positive effects of right communication in various branches of law such as civil, constitutional law or tax law. On the other hand, the negative effects of communication leading to the deterioration of the legal message, so that much of the legal message becomes legal noise. Another negative effect of miscommunication of law is the phenomenon of legislative inflation, which has a profound impact on the way in which legal rules are understood and respected by community members. All these negative effects produce serious consequences in civil law, company law, tax law, and in many other areas of law.

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Authors: PhD. student Raluca TOMESCU

The main problem with the execution of a leasing contract in Romania is that there are still shortcomings to the laws in force. The complexity of this contract which, at first sight, seems so commonplace, as well as the void in our ambiguous law are an inexhaustible source of research and exploration, but also the origin of controversial conflicts. With this paper I decided to elaborate I would like to contribute to consolidating the ”status” of national leasing operations, which are still in search of their own identity. Aiming to place the leasing contract back in its rightful place, that of a contract from which nobody has anything to lose but everything to gain, I consider it appropriate to analyse the conditions and effects of the commissoria lex fragments inserted in the leasing contract. One of the most controversial aspect of these last years brought to the attention of the courts of law cases where the financier, once the leasing contract was cancelled, requests the foreclosure of the user. The cancellation we are taking into account is based on the commissoria lex inserted in the clauses of the leasing contract. We have therefore to analyse whether the foreclosure of the user can be carried on, based on the provisions of GO 51/1997 referring to leasing contracts.

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Authors: Professor Liviu-Bogdan CIUCĂ

The principle of priority and direct application of European rules in relation to the provisions that we find in the national legislation, once assumed at European level, it has generated debates and concerns about the usefulness of a single legal act in private law matters. The idea of European Civil Code, appeared somewhere in the early 80s, is becoming more current and triggers a justified and sustained interest. Considering that the civil legislation of Community Member is a legislation dominated by tradition and peculiarities of culture, religion and temper, the issue of a European Civil Code forms as a project generating discussions, restraints and even rejections of the Member States in relation to this proposal. The current system of European legislative acts that apply immediately and priority in EU member states remains only a temporary solution and which generates difficulties in interpretation and affects the utility of the enactment. Clarifications on the pros and cons to promote a European Civil Codex will be analyzed primarily in terms of law and, last but not least in terms of political perspective, taking into account the Community objectives undertaken by accession treaties and the need for a legislative norm, especially European, to be predictable, transparent, useful and accessible. This paper intends to submit to debate both current doctrinal arguments, the blocking of such an approach, based on the principle of autonomy and the peculiarities of the legal system of each Member State, but also considering the practical arguments and of simplification of rules met in a European Civil Code assumed and applicable in the European space.

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Authors: Ph.D. student Mihaela Diana FRĂTOAICA

In this paper we analyze the implications stages of legal liability in the general theory of law. This research work aims, through a thorough analysis on the land developed general theory of law, to present practical issues relating to legal liability. Define, examining interdependencies stages of evolution and legal liability; - Presentation stages novel legal liability in civil law of Moldova; - The analysis of the stages of legal liability; - Conclusions The current research paper was prepared using the research method of natural law and historical method. Also, the work was developed using research methods and theories positivist and critical-comparative theories. Theoretical basis of the research study consists of numerous studies and scientific papers of Russian and local doctrine publicized, in the final bibliography. Scientific originality of the results obtained from the research are that legal liability occurs when a certain mode of behavior does not fit in some limits accepted by social rules. Researchers, jurists, eminent authors from all over the world have a constant interest to reveal features of legal liability stages in a large number of works, both in the general theory of law and other branches of science in law.

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Authors: Assistant professor Cristina COJOCARU

Throughout its content, the memorandum of association, even in the case of a limited liability company, stipulates the contribution of each shareholder to the share capital while the share capital is divided into shares, corresponding to the contribution of each shareholder to the share capital. The limited liability company is established in consideration of the people who set it up and as such, the share transfer is subject to certain conditions provided by law. Therefore, the law sets out strict conditions for share transfer in the case the transfer is done to one or more shareholders, but especially if the transfer is done to people outside the company, or following the inheritance. If the transfer is done to a shareholder, such is possible provided that this transfer has not been prohibited by the act of incorporation itself. Instead, the transfer to people outside the company cannot be done without the consent of shareholders representing at least three quarters of the capital. In case of share transfer by succession, the law allows it provided that this transfer is permitted within the memorandum of association.

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Authors: Lecturer Dragoş Lucian RĂDULESCU

Change of venue is a remedy offered to a party, which in case of legitimate grounds for suspicion or public safety may require that proceedings belong to another court than the court first seized. But change of venue is not based on a case of material or territorial lack of jurisdiction of the court, taking into account exceptional circumstances or impartiality doubt regarding the case. Thus, article 140 of the Code of Civil Procedure stipulates the possible causes of change of venue, including further issues that will determine jurisdiction to hear by the courts of control.

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Authors: Associate professor Mihaela TOFAN

The paper analyzes recent EU actions in order to develop banking regulation towards having a real and operational banking union. The role and the present policy of the ECB is also addressed. EU banking priorities are presented, emphasizing the transformation imposed by the global financial crises and the recent cooperation among member states of the union. The interconnection banking-fiscal union is also approached, concluding on the mandatory steps to be taken in order to have a real support of the legal framework.

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Authors: Lecturer Andreea Elena MATIC

The current paper contains a brief analysis of art. 316 provided in The National Education Law no. 1/2011 in conjunction with the penalties stated in Law no. 206/2004 regarding fair practices in scientific research, technological development and innovation, with additions and amendments, as well as The National Education Law no. 1/2011. The interesting aspect of this article of the law that completes common law (art. 248 (3) in the Labour Code) is that it establishes the possibility of lifting and cancelling the disciplinary sanctions within a year since being imposed by the competent authority. In the academic world, the issue of fair practice in scientific research is one of honour and it provides each member of the scientific community with a dignified and respected career. The infringement of the provisions in Law no. 204/2004 on conduct in scientific research, technological development and innovation, with additions and amendments, leads to imposing sanctions which adversely affect the researcher’s reputation. In our paper we analyse the applicable sanctions, the actual meaning of the phrase „improvement of the activity and conduct” of the sanctioned person in the context of fair practices in scientific research and, in our conclusions, we attempt at finding the requirements that have to be met in order to eliminate the negative ethical consequences, redeem the good name and regain the right to a honorary career.

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Authors: Lecturer Ana-Maria LUPULESCU

The limited liability company, as regulated by Company Law no. 31/1990 republished, is the most used legal form of company, not only in Romania but also in other European countries. The option of the associates for the analyzed form of company is based on the advantages arising from its particularities, as they result from its specific juridical nature. Within this context, we consider that an analysis of this form of company, even though is not intended as exhaustive, but highlights particular significant aspects that underline its juridical specificity, may appear important and particularly useful, both for analysts in law and practitioners.

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Authors: Lecturer Andreea Corina TÂRȘIA

Romanian jurists described the fiduciary agreement either by rendering texts of the Civil Code, or by taking over all or part of the definitions, opinions, interpretations and even some examples given by various authors, jurists, economists and financial experts in the bank field. However, after three years from its adoption, there is uncertainty about the legal regime applicable to the fiduciary agreement, created by the ambiguity and contradictions of the texts of the Civil Code. So, as a first step, the Civil Code defines fiduciary agreement as a transfer of/and over certain rights composing the fiduciary assets (art. 773) and over these rights the trustee undertakes the exercise of the full, holder specific powers (art. 784 para. 1), but subsequently it states that the fiduciary assets consists of goods (art. 786). Secondly, the Civil Code suggests that the fiduciary agreement is a contract establishing first degree movable securities (art. 781) or a contract of mandate (art. 783) and, regarding the trustee’s remuneration, a contract of managing another person’s properties (art. 784 par. 2), being uncertain whether the administration is simple (art. 795 - art. 799) or full (art. 800 to art. 801). Also, although the Civil Code limits the fiduciary capacity exclusively to lawyers, public notaries and credit institutions, investment companies and investment management firms, financial investment services companies, legally established insurance and reinsurance companies (art. 776 par. 2 and para. 3), it does not describe the rationality of this option. These reasons make necessary the analysis of the legal status and professional duties of the fiduciary trustees, to understand the relevance of their specialized activity, in order to answer the question whether together with the specific risks of the transactions imposed by the fiduciary contract there is also a possible the risk of capital laundering. The answer to this question requires a holistic approach based on risk and identifying mechanisms, situations, facts related to money laundering in order to obtain legal arguments to determine in the future the adoption of an effective national legislation, corresponding to the requirements of the European Union law and in particular to those set out in the (EU) Directive 2015/8492 and to those that ensure the international cooperation instruments in the protection of the capital market.

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Authors: Associate professor Emilian CIONGARU

Entitled as such to bring forward the law, the legislative institutions shall find the most appropriate expression in the legal language, in the content of legal norms and the manner this language is perceived by those to whom it addresses. In this respect, it makes use of certain specific procedures for bringing forward legal rules, procedures whose purpose is to explain and express as clearly as possible the legal rules it decides upon. The important proceedings used by the legislator are presumptions and fictions where the presumption considers that something is true, without any evidence and without proving its existence and the fiction is a certain process of the legislator or the judge by means of which a fact is deemed to exist or to be established although it does not actually exist neither has it really been established. An important presumption one can operate with is the presumption to know the law upon its publication, an presumption otherwise considered to be conclusive, unlikely to be challenged by anyone and under no circumstances. This presumption can have hard and undesirable effects in so that the individual called to account for the violation of law can bring evidence to testify he was actually in the effective impossibility of knowing the law.

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Authors: Associate professor Marilena MARIN, Associate professor Mădălina BOTINĂ

Our paper is an empirical study that analyzes the notification to the persons concerned of the precautionary measures, such as privileges/liens, which can be taken on vessels/ships, the latter being regarded as movable property. Based on legal relationships of civil law, which have the nature of the common law in this area, as well as on the fact that vessels/ships are regarded as movable property, we considered interesting to analyze the privileges /liens which may establish thereon. Once the privilege/lien has been established, it must be brought to the knowledge of any person concerned because, otherwise, any such privilege/lien cannot be enforceable to any person, generating thus disputes between parties, whether or not they are contractual partners. The main idea of our approach is represented by the legal relationship, seen, on the one hand, as a social patrimonial relationship regulated by the rule of law typical of the analyzed field, and, on the other hand, as a real legal relationship, as it regards a specific category of goods, namely, the movable property. Under the incidence of the old Civil Code (1864), the pledge with or without dispossession was established on movable goods. The mortgage was specific to immovable property. The new Civil Code (2009) comes with a legislative amendment allowing the establishment of several types of privileges/liens over movable property, including mortgages. As previously mentioned, after taking the measures that establish the liens on property, these formalities should be brought to the knowledge of the persons concerned in order to ensure the legal balance at social level.

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Authors: Phd. student Mihaela CATANĂ

The present study proposes a comprehensive approach and analysis designed to highlight the evolution of regulations on work through Temporary Agency Work - from the regulations contained in the rules of the International Labour Organisation, of EU law and regulation that institution, temporary work, in Romanian labor law, once with the adoption of the Labour Code by Law 53/2003 - and the need to revise rules on temporary agency work by adopting effective measures for the protection of temporary employees, especially those posted borders. The purpose of this paper is to bring to the fore the need to develop uniform and effective regulations in the temporary employment contract and therefore the parties involved in this report, so that the transposing Directive 2008/104/EC on temporary agency work and other directives implemented in the field: Directive 96/71/EC applicable temporary employment relationships, implicitly the Directive 2014/54/EU on the enforcement of its application, and Directive 2014/67/EU, to continue the harmonization of national rules with EU, reported problems generated by the lack of a legal framework effectively to prevent abuses and misunderstandings arising in the application of legal norms by different state institutions involved in these tasks.

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Authors: Lecturer Raul Sorin FÂNTÂNĂ

The work is a study of the important implications of engineering interpretation of protection corroboration, reduced in time and conditioned by the payment of patent related fees, with the longer lasting and free of tax conditioning provided by copyright to any opera, technical creation included. The theme is based on the conclusions of some expert reports on intellectual/industrial property, managerial and unethical behavior observation and damage value, and proposes a systemic, realistic and organic approach of the two laws from the perspective of the patrimonial rights of the holder.

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Authors: Lecturer Simona CHIRICĂ

The sale of agricultural lands located out-side the built-up areas has been recently limited through the obligation to follow the preemption procedure based on Law no. 17/2014, as subsequently amended (”Law 17”)2 on the regulation measures for sale of agricultural lands located out-side the built-up areas and for the amendment of Law no. 268/2011 on the privatization of companies holding in administration public or private State owned agricultural lands and the establishment of the State Domains Agency. The preemptors are: (i) the joint owners, (ii) the lessees, (iii) the neighboring owners, (iv) Romanian State, through State Domain Agency. The preemption procedure commence with posting by the seller of its sale offer at the competent city hall and ends with the issuance of the positive/negative sale approval or, as the case may be, the conclusion of the sale agreement with one of the pre-emptors.

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Authors: Lecturer Diana LAZĂR

Following its National Strategy of Justice Reform 2011-2016, the Republic of Moldova has aimed to improve its national laws and practices regarding the effects of foreign arbitral awards. Lately, the code of civil procedure has been amended and the Supreme Court of Justice adopted a decision for a more uniform jurisprudence on the recognition and enforcement of foreign arbitral awards. Being part to the New York Convention of 1958 on the recognition and enforcement of foreign arbitral awards, the Republic of Moldova needs to bring its national law and judicial practice in line with the standards of the international treaty. Also, a favorable legal environment for the international efficiency of the foreign arbitral awards would respond to the Moldova’s goals to integrate into the international and European trade, which became topical considering the signature of the Association Agreement with the EU and the economic embargos announced by the Russian Federation. This articles aims to assess the conformity of the national law of Republic of Moldova with the New York Convention of 158 and to identify the main rules for the recognition and enforcement of foreign arbitral awards within Moldova’s territory.

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Authors: Lawyer Diana-Loredana JALBĂ

In order to ensure the effective protection of human rights and provide for more than theoretical and illusory substantive rights, the need to define the right to a fair trial is emerging, along with the necessity that litigants become aware of the guarantees established by article 6 of the European Convention on Human Rights. Thus, the article aims to approach the ample issue regarding the litigants’ right to a fair civil trial in light of current legal regulations, and in particular, in light of the jurisprudence of the European Court of Human Rights. Given the fact that the right to a fair civil trial involves establishing, throughout the trial, a set of rules of procedure aimed at creating a balance between the parties in the process - the so-called guarantees of a fair trial - in her scientific pursuits, the author analyzes both explicit and implicit guarantees of fair trial, highlighting relevant European standards as well as their degree of implementation in the national (procedural) law.

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Authors: PhD. student Marioara MAXIM

The current technological progress triggers a new approach in the way the personal data are collected, processed or stored, by a multitude of data controllers or processors involved in the chain of trophic relations in the delivering of cloud computing services. In this circumstances, it is our objective to examine the rights and obligations of the contractual parties involved in the cloud computing agreements according to the European Union law and national legislation, and their legal consequences for the data subjects.