Perspectives of Law and Public Administration

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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.