Perspectives of Law and Public Administration

5

Authors: Avdullah ROBAJ

The study is a result of the research-scientific work and observation of the modernization of public administration in the Republic of Kosovo, as a goal and purpose of the government in the function of public administration reforms to make it more efficient, more economical and more accountable according to EU standards. Public administration is one of the main segments through which relations among the state, civil society and the private sector are realized. In this regard, support for innovation in public administration enables the realization of development objectives, in particular in economic advantages, poverty reduction, institutional harmony and stability. Modernization of public administration in Kosovo can be defined as a challenge in making significant government changes, decentralization of public administration, simplification of procedures, informalization of services and e-government at all levels of administration and improvement in the field of human resource development. Through digitalisation and egovernment, Kosovo public administration becomes compatible with those of the EU states. The principles and standards of good administration derive from EU legislation and jurisprudence, as well as the good administrative practice of EU member states.

5

Authors: Teodor Narcis GODEANU

The study analyzes the general legal regime of pension rights, in the view of the Constitution and the current legislation, referring to the recent decision of the Constitutional Court no. 387/2018, which allowed an exception of unconstitutionality and it was found that the provisions of art. 53 par. (1) letter c) of the Labor Code are constitutional insofar as the phrase "standard age conditions" does not exclude the possibility for women to request the continuation of the individual labor contract under identical conditions with the man until the age of 65 years. Such a solution leads to the conclusion that the woman can, without being obliged to continue her activity until the age of 65, thus eliminating a rule which has long been in the legislation, considered by some specialists to be discriminatory, also embraced by the Constitutional Court by that decision.

6

Authors: Andrea KAJCSA

Public access and data protection are both fundamental rights provided for in a wide range of legislation at the national Romanian level and European level. Usually, there is no hierarchical order and no clashes between the two rights. Still, given that the purpose of the right to access to official public documents is to foster access to all documents, whereas the Data Protection Regulation must guarantee the protection of personal data, a tension can arise in some cases. We try in our paper to analyze how these two rights have intertwined before the GDPR and will continue to cross paths after this entered into force. The study uses the logical method, analyzes the legal provisions, as well as the solutions derived from the judicial practice. The conclusions aim at unrevealing some pointers for good practice in the public administration.

6

Authors: Roxana Maria ROBA

Regulated for the first time by the Civil Code from 2009, compensatory benefit seeks to compensate for a significant imbalance that the divorce produces it in terms of the innocent husband's living conditions. The present study aims to analyze the necessary conditions to obtain a compensatory benefit according to the current legislation, to make a comparison with other institutions but also with the regulation from other legislation. The study uses the logical and comparative method, analyzes the legal provisions currently in force, as well as the point of view of the doctrine and the solutions derived from the judicial practice. The conclusions are in the direction of expressing concrete proposals to amend the current regulations.

7

Authors: Elena Emilia ȘTEFAN

31st July, 2018, Law no. 190/2018 regarding the application measures of the EU Regulation 2016/679 of the European Parliament and Council from April 27th , 2016 regarding the private person’s protection concerning the private data and regarding the free circulation of this data and the 95/46/CE Directive abrogation (General Data Protection Regulation). In the European Union member States, the activity of checking the legislation regarding the personal data is done by the institutions or the authorities that are especially founded, to exert these competences. In Romania this public authority is called the “National Authority of Supervising the Personal Data Processing”. This study analyses the interference between the personal data protection and the contraventional law beginning with the entry into force of the general Regulation regarding the protection of the personal data and the impact of this European act on the Romanian society. Using scientific methods such as the comparative, deductive, informatic and also other methods, the study aims to highlight the interest of the public and private sector to abide to the rules established by the new general regulation regarding the data protection.

7

Authors: George MARA

Due to recent changes in the field of the judicial error regulations, that lead to a new definition of the concept and to the creation of a dual system of liability for the damage caused through a judicial error (on one hand, an objective liability of the State and, on the other hand, a personal liability of the magistrate), the paper aims to reflect the potential impact these new regulations can cause in the field of the judicial activity. The solutions for which the lawmaker opted will be analysed, by comparison with similar regulations that exist in various European law systems (which represents also a source of inspiration for the law making process) and proposal will be made, in order to ensure an effective and uniform law application. The research methods used in order to achieve this aim are the comparative method, the analytic and historical methods.

9

Authors: Laura RUDNYANSZKY

International commercial arbitration system is enshrined in both national legislation and international conventions. The power of the arbitrators to resolve the dispute is conferred by the parties, who agree that their litigation be brought to the attention of private individuals. To that end, the parties to the dispute designate the arbitrators and undertake to accept the decision they will make. Such a procedure has three distinctive characters: arbitrary, commercial and international2 . The importance and effectiveness of arbitration in international relations have been recognized by the Final Act of the Conference on Security and Cooperation in Europe of 1 August 1975. In order to contribute to the development and promotion of trade and cooperation, the participating States at the Helsinki Conference recommend to bodies, firms in their countries include, where appropriate, arbitration clauses in commercial contracts and industrial cooperation agreements or special convention. In the same spirit, the United Nations General Assembly recommends, in its preamble to Resolution no. 31/98 of 15 December 1976, which adopted the Arbitration Regulation drawn up by the United Nations Commission on International Trade Law, its dissemination and its widest possible application in the world, thus recognizing the usefulness of arbitration as a method of settling disputes arising from international trade relations. 3 In conclusion, in international trade relations, most of the litigation between participants is settled by arbitration as a form of private jurisdiction. Arbitration is an appropriate means to quickly and fairly regulate disputes that may result from commercial transactions in the field of goods and services exchanges.

9

Authors: Marioara ȚICHINDELEAN

Part-time working is a method of ensuring the reconciliation between professional life and family life, the possibility of undergoing education and training, of improving the qualification and of opening new professional opportunities to the mutual advantage of employers and employees in a manner that supports the development of enterprises. Employees’ rights based upon a part-time labour agreement can be grouped in rights given unconditionally or rights conditioned by the performance of a certain volume of work, the latter being a characteristic of this type of labour agreement, taken from the special regulation. In this survey we will refer to particular aspects of certain rights given to the employee who performs part-time working, namely: the right to a salary for the work carried out, to weekly rest, the right to annual rest leave, seniority, length of service in this field and retirement contribution.

10

Authors: Ioana RUSU

In this paper we have considered the offense of favoring the perpetrator in terms of constitutive content, the cause of non-punishment, some legislative precedents and the transitional situation in which we are with the entry into force of the Criminal Code. Also, on the occasion of the examination, we have formulated some critical comments, supplemented by appropriate de lege ferenda proposals regarding the legal content of the text of incrimination, namely the use of the terms of criminal prosecution, the prosecution and the execution of a custodial measure. The novelty of the paper consists in the analysis carried out, as well as in the critical opinions and the de lege ferenda proposals. The present work is part of the examinations carried out in order to promote a university course of criminal law. The work may be useful to students and master students of law faculties, as well as to practitioners in the field and to the legislator from the point of view of operating the mentioned modifications and additions.

12

Authors: Wioleta BARANOWSKA-ZAJĄC

Public-private partnership is one of the forms of cooperation between public entities and non-public sector entities, undertaken on the basis of an agreement for the performance of public tasks. Such a cooperation is covered by a strictly defined legal framework, which guarantees on the one hand the achievement of public law objectives and makes a guarantee of the protection of public interest. On the other hand, however, such legal framework creates a barrier to the development of cooperation between public sector and private sector. The Polish Act of 28 July 2005 and another Act of 19 December 2008 concerning public-private partnership, proved to be ineffective for real and efficient implementation of public tasks in the analyzed formula. The provisions of the latter Act do not, however, lead to significant increase in the number of agreements concerning public-private partnership. Through the amendment of 5 July 2018 there were made in the Act of 2008 some significant changes, starting from definition of public-private partnership, introducing the obligation for public entity to assess the effectiveness of the implementation of undertaking under public-private partnership as compared to effectiveness of its otherwise, criteria for the selection of a partner, the possibility of concluding public-private partnership agreement with a subsidiary of private partner, control of partnership, up to the partnership in the form of company and the task of public administration body established as competent in partnership matters. The purpose of the study is to analyze the amendments in the Act of 2008 concerning public-private partnership and attempt to assess the impact of these amendments on the efficiency, effectiveness and speed of public administration tasks, as well as to examine if these amendments are able to lead to significant increase in the number of agreements on public-private partnership concluded by central administrative bodies, as well as local selh-government units.

4

Authors: Radu Ştefan PĂTRU

Collective bargaining is defined in art. 1 of the Law no. 62/2011 of the social dialogue as the negotiation between the employer or employers' organization and trade union organization or the representatives of the employees, as the case, which regulates the working relations between the two parties, as well as any other agreements on issues of common interest. Collective bargaining is therefore possible in both the private and the budgetary sectors, but due to the restrictions set by the law, collective bargaining in the budgetary sector is more restrictive. In the present study, we will analyze the aspects that characterize the collective bargaining within civil servants, especially by highlighting the issues that can be found on the collective bargaining list between civil servants and the state institutions and authorities.

6

Authors: Teodor Narcis GODEANU

The study aims to analyze the Law no. 153/2017 on the remuneration of staff paid out of public funds, highlighting both the positive aspects and especially the deficiencies of the regulation. We have in mind those concerning the subject of regulation, the adoption procedure, the principles governing the salaries of this category of staff, and the established solutions. Correspondingly, we propose to formulate some basic solutions to be considered in the future. This in the context in which such a regulation needs to reveal its vocation to represent a genuine "salary code", to devote solutions that can provide it with efficiency and stability.

7

Authors: Valentina CORNEA

In most countries in the European Union, the associative structures of local authorities were formally recognized in the early 1990s of the last century. Their establishment and strengthening is a process associated with decentralization. The role of associative structures is to facilitate the dialogue between central and local authorities and to contribute to the assertion of local autonomy. The data on the involvement of associative structures of local public authorities in Romania in the governance process shows that they meet the criterion of legitimacy and, to a lesser extent, the criterion of functionality. We are rather seeing a stimulated participation in order to respond to the implementation of a law than a civic involvement in its true sense. The limited performances of the involvement in the governance process are attributed to the socio-political context.

7

Authors: Kolë KRASNIQI

Kosovo and the region of the Balkans in general had always been areas where different cultures and the influences of major powers clashed. The influence of the Roman Catholic Church collided with that of the Byzantine Orthodox Church, Islam clashed with Christianity and the geostrategic interests of the East collided with those of the West. These cultural and religious clashes on the same territory as well as the impacts of the different geostrategic interests resulted over the course of the past centuries in the development of different competitive cultures and religions sometimes opposed to each other in Kosovo. Irrespectively of this religious and cultural diversity, the Kosovar people have not been treating these ideological divides as separations of the entire nation based on a religious basis. Rather, they have been cultivating feelings of harmony, tolerance and understanding with respect to members of other faiths. But unfortunately, the traditional model of harmony and interfaith tolerance that had existed in Kosovo for centuries has come more and more under attack in recent times.

8

Authors: Bogdan Sebastian GAVRILĂ

The legal problem of verifying the lawfulness of the sanction for exceeding the legal speed of the offender by reference to the Legal Metrology Norm 021 - 05 "Devices for Measuring the Speed of Motor Vehicles (Cinemometers)" has over time generated a non-unitary judicial practice. Some courts have annulled the fines due to the fact that the offense retained by the investigating agent was not committed by the petitioner. Others annulled in part, framing that act in a legal text that provides a milder sanction. The majority rejected the complaints, noting that the existence of a margin of appreciation provided by the legal text previously indicated regarding the verification of the functionality of the radar apparatus does not automatically equate to retaining a reduced speed level of the applicant in the application of the in dubio pro reo principle, according to the values expressed in the Legal Metrology Rule. Through a careful analysis of the legal texts, doctrine and judicial practice, the present study aims to clarify the implications of the Appeal in the interest of the law in regards to the solution of the legal problem available to the courts.

9

Authors: Cosmin SOARE

The research of the national cultural heritage from a legal perspective is a necessity in the present Romanian legal space. The attention paid to this field has the vocation to contribute to shaping a national consciousness on the importance of cultural heritage in the life and identity of Romanian society. The article proposes an objective approach to regulations in the field, with the presentation of relevant examples from national and international jurisprudence as an expression of the current state of cultural heritage protection. The development and adaptation of specific regulations, policies and operations to the real needs of the cultural patrimony presupposes the concurrence of a complex of factors, among which the public administration, through its authorities, institutions and specialized bodies, plays a key role.

10

Authors: Aurel Octavian PASAT

The basic purpose of the present scientific research is the critical analysis of lawmaking updates concerning material object of the criminal offences sanctioned by articles 1991 -1994 of the Criminal code of the Republic of Moldova. The systematical method, the comparative method, analysis and synthesis have been chosen. As a result, the present study of penal legal norms was performed in a systematical and comparative way. Especially, there have been concluded that some lawmaking solutions settled in the legislation and penal doctrine of Romania would constitute a relevant scientific support and a good lawmaking sample in order to formulate some suggestions of legislative improvement in the sphere of protection of the cultural heritage by means of Criminal law. Finally, after a critical research there have been detected a great amount of unclear expressions and deficiencies of the modern lawmaking procedure used in the process of creating legal norms, and have been formulated new proposals to reform.