Perspectives of Law and Public Administration

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Authors: Lecturer Ileana VOICA

The work summarizes the theoretical consequences of introducing the notion of "professional" in the New Civil Code. This notion outlines a new conception in the commercial or business law doctrine, being an effect of replacing the old term "trader" (natural person or legal person) used for a long time, not only by theoreticians, but also by practitioners with the complex term "professional trader". Thus, not only the notion of professional is of interest here, but also the classification of professionals. Moreover, with the entry into force of the New Civil Code, the old objective concept of defining commercialization, set by the old Commercial Code from 1887 (implicitly repealed by the New Civil Code, on October 1, 2011), was abandoned and a formal criteria was introduced, procedurally regarding the definition of commerciality (registration in the Trade Register of any professional trader, be it a natural person or a legal person).

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Authors: Associate professor Petruț CIOBANU

The legal person, with the exception of the state and the public authorities, is criminally liable for the crimes committed in the accomplishment of the activity object or in the interest or on behalf of the legal person. Public institutions are not criminally liable for the crimes committed in the exercise of an activity that cannot be the subject of the private domain. The criminal liability of the legal person does not exclude the criminal liability of the natural person who contributed to the commission of the same deed. The criminal liability of the legal person is direct and personal, which means that the eventual right of recourse of the legal person against the natural person who is responsible for committing the crime is exercisable on the basis of criminal civil liability. Pursuant to the principle of the territoriality of the criminal law, foreign legal persons who commit crimes on the Romanian territory will be criminally liable according to the Romanian criminal law.

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Authors: Lecturer Stela MECAJ

Noise pollution is disturbing noise with a harmful impact on the activity of human or animal life. Noise nuisance is a global phenomenon that generates a sense of resentment associated with any agent or condition that is recognized or trusted by an individual or group of individuals to adversely affect them. The health impacts of environmental noise are a growing concern for the general public as well as policymakers in Europe. Unwanted noise can damage psychological health, can cause hypertension, high levels of stress, hearing loss, sleep disturbances and other harmful effects. Albania ranks among the countries with the highest acoustic pollution in Europe. Every citizen has the right to be protected from the harmful effects of environmental noise. The institutional responsibilities for disciplining noise-generating activities are related to the ministry or authority responsible for licensing. The protection applies to noise, which exposes people to the environment where they live, in residential areas, in public institutions, in public parks, in nature, in children’s institutions, health’s institutions, educational, cultural, religious institutions and others environments similar to them. This paper aims to analyze the legal, administrative and organizational measures taken to manage environmental noise in Albania, as well as to comply with the requirements of the EU Basic Directive and other related directives, identifying problems related to this sector. The methods used to carry out this paper are descriptive, analytical, and comparative.

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Authors: Associate professor Teodor Narcis GODEANU

The present study aims to analyze, as it also results from its title, the specificity of the legal regime of the right to retirement, from two perspectives. First, in comparison, the regime of the woman’s pension right in relation to the man, and secondly, from the same comparative perspective, the pension scheme of the woman employed in relation to the woman civil servant. The conclusion that emerges from its content is that the legislative policy in Romania has sought to mitigate the differences of legal regime between the above mentioned categories. The Constitutional Court also had a special role, which promoted, through its jurisprudence, the solution of eliminating discrimination, both on the grounds of sex and on the criteria of professional category, women employees and women civil servants.

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Authors: Lecturer Adriana DEAC

Whether we are specialist in law, economics, art or a simple individual, all the citizens of the European Union meet in daily life, with legal terms such as regulation, directive, decision. We also get in touch, directly or indirectly with the institutions of the European Union, The Parliament, the Council, the Commission etc. For the states of western Europe, members of the European Communities for decades, these institutions and legal notions are absolutely normal, commonplace. For the citizens of the states from central and eastern Europe, relatively new members of the European Union, after 2000, these legal terms are still novelty. This is the reason why, the scientific paper aims to analyze the provisions of the Lisbon Treaty, Section 1, Chapter 2, art. 288 and the following regarding the legislative acts of the European Union. According to art. 288 of the Treaty on the Functioning of the European Union, „to exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions”. The paper aims to presents their legal character, the competent institutions to adopt these legislatives acts, the procedure for adopting and entering into force of these acts. In achieving this scientific objective, we shall present these acts comparatively, emphasizing the similarities and the differences between them, considering both the provisions of the Lisbon Treaty, as well as the scientific works in the field of the European Union Law.

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Authors: Lecturer Donik SALLOVA

This paper aims to present and analyze the multiethnic principles of international community administration and policy in Kosovo during the period of international administration of Kosovo and the period of negotiations for the final status settlement of Kosovo. The international community has been neutral with the political aspirations of the people of Kosovo for self-determination and has implemented a policy that has essentially built a multiethnic political concept on Kosovo as a political entity. The imposition of these multi-ethnic principles in the construction of the state of Kosovo runs counter to many principles of the functioning of democratic states, whose sovereignty derives from the people, and governance is legitimized by the majority through democratic elections. The paper will conclude that despite the compromises made in the nature of the state of Kosovo with regard to the rights of minority communities in Kosovo, especially the Serb minority, the rejection of this minority towards Kosovo's institutions has increased due to the autonomy offered through the constitution, numerous laws and agreements negotiated in Brussels between Kosovo and Serbia.

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Authors: Associate professor Ioana-Nely MILITARU

In order to ensure the respect of the values that the European Union is based on, provided for in art. 2 of the Treaty on European Union, Article 7 of the same Treaty, provides for a mechanism of the European Union that allows to determine if serious and persistent violations of the values of the European Union by a Member State have taken place and possibly to sanction such violations. The European Union is obliged to respect the Charter of Fundamental Rights of the European Union. The Charter sets out the rights that both the European Union and the Member States must respect when implementing EU Law.

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Authors: Phd. Ilie DUMITRU

The contractual relationship that is established between a travel agency and a tourist can take the form of either a contract for the sale of travel packages or a contract of tourist services, depending on its purpose. The obligations of the travel agency that sold a package of travel services or that are obliged to provide tourist services, as well as the sanctions applicable in case of failure to fulfill the obligations assumed, are established by a recent special law, which transposes a European directive. If we consider the relatively new character of this regulation that derogates from the common law, the particularities of the tourist services and the context of assuming their provision by the intermediarytourism agency, as well as the lack of a consistent Romanian case law in this field, make it necessary to analyze the issue of civil sanctions applicable to the travel agency that does not fulfill its obligations. Our analysis will have a trilateral composition: legal, doctrinal and jurisprudential.

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Authors: PhD. student Eugen SÂRBU

he current study aims to bring to the foreground a practical perception of lesion, both as a vice of consent and as a mechanism for balancing a contract, by putting this institution in the context of modern economic reality. Section I offers a short historical analysis of lesion in Romanian law, presenting the innovation brought by the Civil Code in force and the applicability of lesion in professional relationships. Section II aims to explain the particularities of this vice of consent regarded as a contractual imbalance. Section III offers an analysis of the conditions of existence of lesion, by contextualizing them in relations between professionals. Section IV introduces an analysis of the way in which the institution of lesion, when correctly put into practice by the interpreter of the law, could influence business actors when making decisions in the phase of concluding the contract. Section V refers to the application of lesion by courts and to the effects produced by this institution.

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Authors: Phd. student Loredana COSTINA

This article deals with the impact of Act no. 129/2019 for the prevention and combating of money laundering and terrorist financing on the functioning of civil society, analyzing in particular the impact of the new provisions in the matter of preventing and combating money laundering and terrorist financing on the rules of incorporating associations and foundations and on their reporting activity of the ultimate beneficial owner. The article focuses on the analysis of the changes made to the Government Ordinance no. 26/2000 on associations and foundations, which sets new rules regarding the incorporation and functioning of NGOs, taking into account the new rules imposed by Act no. 129/2019 and also deals with the problem of identifying the ultimate beneficial owner of an association and foundation, an aspect that has generated numerous reactions at the level of civil society, analyzing at the same time how the Act no. 129/2019 transposed the provisions of the Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing and the opportunity of the sanctions provided for the non-observance of the law provisions by the associations and foundations.

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Authors: Lecturer Ovidiu Horia MAICAN

Economic espionage is the unlawful targeting and theft of critical economic intelligence, such as trade secrets and intellectual property. The term refers to the clandestine acquisition or outright theft of invaluable proprietary information in a number of areas, including technology, finance, and government policy. Offenders get cheap access to critical information, leading victims to suffer economic losses.

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Authors: Professor Ivan PANKEVYCH

An important factor in the development of modern society and a means to form a social state with the rule-oflaw is the constitutional declaration of human rights and freedoms as the highest value. However, formal recognition of democratic and broad rights and freedoms does not imply the instant acquisition by an individual of the possibility to fully exercise the values determining the rights. It is important to create an efficient social and legal mechanism for implementation of rights and freedoms that includes guarantees to secure and protect them. That is why in this study, the author employed such research methods as logical, observation, modeling, forecasting, comparative law analysis, etc. The state recognizes a right of an individual and a citizen to entrepreneurial activity. At the same time, it shall guarantee the possibility to exercise the kind of activity within its territory. The guarantees are stipulated not only in the Constitution of Ukraine but also in the respective sectoral law. In addition, by recognizing agreements ratified by Ukraine to be part of Ukrainian legal system, legislators confirmed that human and citizen rights protection, including also such important right as the constitutional right to entrepreneurial activity, is not an exclusive internal affair of Ukraine. Despite the 30 years of market economy functioning in Ukraine, citizens still have inflated demands for the paternalistic role of the state. The principle of social state fixed in the Constitution of Ukraine is partly restricting the exercise of the constitutional right to entrepreneurial activity. In fact, equality before the law is often interpreted as the need to provide for equality of results in society with the help of fair redistribution. At the same time, the shaping a market economy in Ukraine, with the leading role of oligarchic business groups, resulted into mass pulling of their capital into offshore, investment of profits gained in Ukraine into foreign businesses and real estate. Consequently, it generates distrust and disappointment of Ukrainian citizens for their own state and its representatives, and impedes the reform process in the country.

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Authors: Associate professor Aurel Octavian PASAT

This scientific article is devoted to the reconceptualization of the legal-criminal protection of religious freedom in the criminal law of Romania and of the Republic of Moldova. The purpose of this scientific message consists in the meticulous identification and analysis of the special legal object of the criminal offenses referred to in paragraph (2) art. 381 Romanian Criminal Code and art. 185 of the Criminal Code of the Republic of Moldova. On this occasion they were subjected to a thorough analysis: the European legislation in the field of religious freedom, the criminal and extra-legal legislation in the field of religious freedom in Romania and the Republic of Moldova, as well as the contemporary doctrine of recent years. Following the study carried out, certain legislative gaps were identified that can be easily removed by reviewing the incriminating framework of the criminal acts that affect the religious freedom of the person. The conclusions of the broad law and the recommendations de lege ferenda created under the empire of the latest legislative tendencies at European level can be taken into account in the legislative process.

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Authors: Professor Ionel DIDEA; PhD. student Diana Maria ILIE

At the national level, we can really invoke the passage of a road to maturity of the insolvency legislation, especially the Law no. 85/2014, which was intended to be a legislative reform, with major impact in terms of increasing the percentage of the number of companies that have a second chance, on the one hand, but also on reducing the stigma of insolvency, on the other hand. We wonder if after 5 years of implementation this has been achieved, whether it is a problem of our culture or a problem of certain legislative gaps or administrative impediments. How can we maintain a balance between the culture of a state, which hardly changes over time, and an almost perfect institution, but at the same time difficult to implement? Why is the rate of successful reorganizations still low? When do we manage to have control of a modern insolvency legislation, if we slow down progress or return in time through a simple emergency ordinance, such as the one in 2018? How do we implement at national level the new European Directive, recently entered into force, which aims to develop a “rescue culture” for the insolvent debtor, a direction that at national level we have abandoned? How do we manage to evolve and thus fit into the perspectives for legislation evoked at international level, intensely promoted by UNCITRAL, or at least to maintain the appearance of legislation adapted to the new guidelines inevitably impregnated by globalization? It is interesting to analyze the essence of a critical question in the specialized literature3: “Does the imperfection of the legislation generate mistrust or does mistrust generate imperfect results of almost perfect legislation?” It is ultimately a balanced harmonization between culture and legislation, between legislative and administrative, between aspirations and economic, political and social developments, between domestic law and international law, between rights and interests.

4

Authors: Lecturer Camelia Daciana STOIAN; Lecturer Radu Nicolae STOIAN

We have learned to shape solutions through the jurisprudence of the European Court of Human Rights or the European Court of Justice in Luxembourg on what, until not long ago, we were treating an eternal lamentation as a real problem but without a concrete solution have set or reached important standards in the segment of violence against minors and women but have also provided an adequate degree of protection for professionals directly involved in verifying domestic violence complaints. However, with the entry into force of Law no. 174/2018 regarding the modification and completion of the Law no. 217/2003 on the prevention and combating of domestic violence, the role of the police officer in the exercise of his duties in preventing and limiting domestic violence is strengthened by defining and enumerating the means by which he has the right to obtain evidence by stating his obligations and prohibitions may have immediate application in the content of the provisional protection order but also by regulating the way of its confirmation by administrative resolution issued by the prosecutor. The objectives of the present study, however, concern how this legislative measure is to be reflected in the organizational procedures necessary for the implementation in practice of police, prosecutor's offices and courts, all set in a framework that will procedurally support the efforts to investigate and conclude, in a way that effectively contributes to the diminution or elimination of an imminent risk.

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Authors: Lecturer Aida Diana D. DUMITRESCU

This epistemological approach was generated by the theoretical and practical necessity of analyzing the legal nature of the approval documents required for the registration and/or operation of commercial companies. The evolution of companies is symbiotic to that of the society and has a major economic, legal and social impact. According to its object of activity (environmental statement, banking company) or operations carried out in the process of operation (merger, sale of agricultural land, etc.) the entity must obtain approval documents with complex legal effects. The material is part of the multidisciplinarity criterion and uses several methods of scientific research, of which predominantly logical and comparative methods. The outcome of the research is presented in a gradual and exemplary approach, its conclusions being substantiated by reference to normative provisions, doctrine opinions and legal practice.

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Authors: PhD. student Andreea PURCEA – REZEANU

Statutory and extra-statutory conventions are contracts, plurilateral (thus, typically, voting unions), or corresponding services (typically blockades): a common feature is that they remain foreign both to society and to associations and third parties who are not part of it. The rules laid down in the Italian Civil Code to Articles 2341-bis and 2341-ter only deal with conventions aimed at stabilizing the joint stock company which is the subject of such agreements: these provisions provide for lasting limits (when stipulated for a specified period, can not exceed three years, whereas for an indefinite period, each party may give up an ad with a notice of one hundred and eighty days) and, by limiting ourselves to the so-called open societies, advertising obligations (communication to the company and declaration at the opening of the assembly). There is no restriction, however, on the form that the parties may adopt for the purpose of that stipulation.

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Authors: Professor Silvia Lucia CRISTEA; PhD. student Viorel BĂNULESCU

The right to withdraw is a measure of protecting the associate/shareholder of the societies, regulated by Law no. 31/1990, which ceases to exist as a result of the fusion. The present article analyses the exertion of the right to withdraw from the Romanian Law, but also in comparative law. Regarding the Romanian regulation of the matter, it presents in parallel the case of capital societies and those of persons, emphasizing the differences between them, from the point of view of the effects of the right to withdraw.

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Authors: Assistant professor George MARA, PhD. student

The paper address the functioning of the rule of law, starting from the separation of powers, but also it offers a brief perspective over several theories that were developed as this principle evolved from one period of time to another. Closely linked to the principle stating the rule of law there is another one, proclaiming the imperative of an independent judicial authority and which, in performing its duties according to the rules that govern a fair trial, contributes to the implementation of the separation of powers but also of the checks and balances system and loyal cooperation between these authorities. We also presented an anlysis of the new regulation regarding the disciplinary liability of the magistrates, following the legislative changes adopted at the end of last year, and their eventual impact on the principles mentioned above. The research methods used in order to achieve this aim are the comparative method, the analytic and historical methods.

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Authors: Associate professor Ada HURBEAN

This paper analyzes the special character of the maternal assistant labor contract regarding the actual legislation and the jurisprudence in this matter. By trying to find a balance between the regulations of the Labor Code regarding the individual employment contract and the special regulations regarding labor contract of the maternal assistant, we notice that the institution of the maternal assistant is governed, first of all, by the principle of the best interest of the child. So, because we have to consider this an axiom, the maternal assistant is, in fact, a genuine replacement of a parent for the child who is in placement or in custody. That’s why the content of this labor contract is all about the growth, care and the education of the child, without a strict connotation to the specific elements of the common labor contract, as the work program, the time to work and time to rest and even the subordination relationship with the employer. In this context, the common stipulations of la labor Code regarding the individual labor contract are only the general frame in which the work of the maternal assistant is taking place, because the content of his work is much more, legally and morally, that the norm.

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Authors: Associate professor Simona-Maya TEODOROIU

The study offers an integrated, multidisciplinary research and approach of the adhesion contract/standard contract, as regulated by the administrative law and environmental law. It offers both a synthesis of the creation and evolution of this contract in the administrative law, being then acquired by a more recent branch of law – the environmental law. It analyzes the actual ramifications and utility of the adhesion contract in environmental law, both on national and European level. In this respect, several legal tools are mentioned (such as the environmental regulatory approvals, the compliance programs, the eco-labels, the environmental management and audit). The main goals assumed by this study envisage, on one hand, to clarify some aspects that are equally important and useful for a contractual practice regulated by the environmental law. On the other hand, it underlines the necessity to extend these legal tools in the Romanian legal system, based on European regulations and the practice of other countries where, on a larger scale, unilateral regulations issued by the State are replaced by contractual tools and norms

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Authors: Associate professor Laura CETEAN-VOICULESCU

This study seeks to analyze special measures for the protection of the child in difficulty (placement and placement in an emergency) in the form of a nursing assistant. The institution of maternity care has grown in recent years, surpassing by far the other alternative protection measures. The critical analysis of the legislation, the theoretical and practical characterization of the measure, the formulation of conclusions and proposals in the field were followed. Issues such as place of maternal care in all alternative child protection measures, categories of special measures determining protection through a professional nursing assistant, individual protection plan and priority order of measures related to the child, duration of the measure, authorities with attributions in domain, the child - a qualitatively active subject of the legal protection relationships that concern him/her, categories of children who can benefit from the placement measure, including a nursing assistant, monitoring the application of special protection measures, categories of services for achieving special protection, rights and obligations the professional nursing assistant, aspects of judicial practice and conclusions.

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Authors: Lecturer Sandra GRĂDINARU

The present paper proposes an analysis of the phenomenon of corruption within the public administration, viewed from the perspective of the anti-corruption fight as it can be perceived from the activity of the criminal investigation bodies and the jurisprudence of the courts. In Romania's attempt to meet European anti-corruption standards, standards established under the Cooperation and Verification Mechanism (MCV), the Romanian legislation has undergone numerous transformations. However, the experience of recent years highlights the fact that the adaptation of the legislation is not efficient in the conditions in which there are no effective preventive and repressive means against this scourge. Although there have been many progresses in the anti-corruption fight, recognized at European level, administrative reform in Romania is still stagnating. Due to this aspect, corruption was also considered a threat to national security, motivated by the vulnerability of the Romanian State, damaging the economy and creating imbalances in society. In this context, in the attempt to combat the phenomenon through updated legal and technical means, the Prosecutor's Office attached to the High Court of Cassation and Justice signed two cooperation protocols with the Romanian Intelligence Service in 2009 and 2016. Apparently, this cooperation was fruitful, being finalized with a series of criminal cases that involved or involves important political people. Due to the clandestine nature of these protocols and due to the lack of any form of control over the cooperation between the criminal investigation bodies and the secret services, a proper framework for abuses was created, which implicitly led to the violation of the rights of the Romanian citizens on a large scale. The present study aims to highlight the main effects of the cooperation between the National Anticorruption Directorate and the Romanian Intelligence Service, both from the perspective of the recent jurisprudence of the Constitutional Court and from the perspective of the judicial practice of the national courts. The academic and practical interest of this paper lies in the fact that its addressability is not limited, being addressed to law practitioners (judges, prosecutors, lawyers, etc.) as well to justice seekers who have recently faced the phenomenon of corruption.

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Authors: PhD. student Eugen SÂRBU

Through this study, we analyze how the regulations in the field of general theory of obligations have influenced the field of administrative contracts. By the way of issuing the model of purchase agreement for design and execution of work, adopted by the Decision no. 1/2018, the field of administrative contracts took over the mechanisms of balancing the contract laid down by legislation by adopting the Civil Code from 2011. Through the method of research on document analysis, we show that, including in the field of administrative contracts, an efficient contractual relationship is dependent on the existence of principles that allow the contract to be concluded, by providing concrete mechanisms for responding to unpredictable situations. In the present article we will analyze how the administrative contract model applies the rule “favor contractus”, the practical impact of our effort is to guide the actors involved in the development of such contracts, so controversial in the Romanian space, by showing the concrete ways of applying the contractual remedies in balance with the gravity of the violated obligation or the impediment involved in the fate of the contract.

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Authors: Professor Rafał SZCZEPANIAK; Dr. iur. Marcin KRZYMUSKI

The inspiration to write the article was the judgment of the Polish Constitutional Tribunal of 2018 confirming the possibility of applying Actio Pauliana to tax obligations. This issue is focused on typical problems for the application of private law in the public sector. It is, among other things, the sense of division into public and private law. Actio Pauliana is included in private law, while tax law is included in public law. The author agrees with the ruling of the Polish Constitutional Court. He is an opponent of overestimating the importance of division into public and private law. The article uses the formal-dogmatic method as well as the comparative law method. The author also discusses the legal status in France and Germany in this respect.