Perspectives of Law and Public Administration

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Authors: Associate professor Petruț CIOBANU

Frequently, thefts have as material object goods with a considerable economic value, reason for which they are committed on people with a good material situation, usually being businessmen or foreign investors. Robbery is one of the most serious crimes, damaging the heritage and life, implicitly the health of the person, and through serious consequences it has a negative effect on the population. In order to combat the criminal phenomenon, it is useful to determine the areas and environments in which the crimes of theft and robbery are committed with predilection. In addition, the authorities may contact the representatives of the companies that are located and operate in those areas/environments to guide them in order to ensure proper security and the installation of surveillance systems. The crime prevention must be accompanied by a socio-cultural approach to maximize its impact on the entire population.

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Authors: Professor Florentina Camelia STOICA

This paper considers certain aspects related to the application of the article 493 paragraph (1) letter (a) of the Criminal Procedure Code versus the insolvency procedure of the legal entity under the conditions of a distinction within the article on the interference with the insolvency procedure of the legal entity. The recent decision of the High Court of Cassation and Justice seems to have cleared the issue, but from our point of view the debates may be made from in the doctrine. The article does not aim so solve this issue, but it presents the three opinions on the application of article 493 paragraph 1 letter a of the Criminal Procedure Code. At jurisprudential level it seems that the intervention of the legislator on the interpretation of this article is not excluded. This orientation is based on the argument that the scope of the preventive measure made in the criminal trial is to prevent evading the criminal liability.

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Authors: PhD. student Radu-Mihai NECULA

The purpose of this study is to establish the categories of arbitral awards that may be classified as foreign by reference to the provisions of the Code of Civil Procedure and the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, adopted in New York (1958). In carrying out this approach, we had as a starting point certain doctrinal opinions that we tried to analyze critically, in order to capture as clearly as possible the regulatory differences between the provisions of the Code of Civil Procedure and those of the New York Convention, in regarding the qualification of an arbitral award as foreign. Thus, following the analysis of the approached subject, we found that the provisions of the Code of Civil Procedure differ from the provisions of the New York Convention, regarding the qualification of an arbitral award as foreign, the domestic provisions being more favorable than the conventional ones, in terms of in the execution of arbitral awards.

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Authors: Associated member Nelu Dorinel POPA; Student Cezara POPA

Subcontracting represents the facility granted by law to tenderers to fulfill part of the obligations that are assumed by the public procurement contract or a part of the project, through a third party called “subcontractor”, if the offer will be declared as winner by the contracting authority. In practice, on the one hand, it is noted the tendency of the contracting authorities to meet the subcontractors, which is justified by the desire of the contracting authorities to protect their own interests and which corresponds to a higher degree of transparency; subcontracting is to be recommended to the contracting authorities when the public procurement is carried out on their own establishment or on establishments which they have under surveillance. On the other hand, it is also noted the tendency of the tenderers and subcontractors to circumvent this transparency and to disguise subcontracting in the form of relative simulations of various types, precisely so as not to inform the contracting authorities and so that the tenderers obtain certain benefits. In this respect, some doctrinal opinions, some cases of jurisprudence and comparative law references are relevant. In the light of those mentioned above, we have expressed some proposals de lege ferenda.

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Authors: Associate professor Dr. IUR. Zdenek FIALA; Associate professor Dr. IUR. Olga SOVOVA

In the introductory remarks, the paper highlights the shared past of the central European countries and the most important historical moments for the development of the public administration. Further, the paper points out various theoretical approaches to the definition of the term public service, public administration and its classification concerning the academic background in the Czech Republic. Subsequently, the primary public service legislation in the Czech Republic is referred out. On this basis, public service and administration challenges and issues are formulated. The authors approach the concept of public service in a broader sense, focusing on public service in general, service of the state officials, officials of territorial self-governing municipality units, as well as public services provided by the private sector. The paper examines the new role of the public administration in the global health and public services crisis. The authors evaluate the possibilities of the new governance methods for re-directing the public service and administration to the new role of the crisis and post-crisis managers.

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Authors: Postdoctoral researcher Oana Nicoleta RETEA

The identity of a person mainly supports discussions in a philosophical way, its definition being the subject of multiple debates. However, from a philosophical point of view there is no unanimity regarding the concept of identity, the established interpretations cumulating a series of common points, but subject to the mark of personality. In order to satisfy the need to differentiate humans in all manifestations of social life, and in order not to give rise to confusions about one's identity, the use of the name was imposed. The aim of this article is to contribute to a better understanding of both rights and to emphasis each and any existing connection between them. Another aspect that determined the elaboration of this article is represented by the fact that the doctrine is largely limited in treating the name right only in the chapter allocated to the identification attribute of the natural person without emphasizing its valences according to the conclusive legal relations.

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Authors: Lecturer Hazbi LIKA

Abstract: In the process of nation-building in Eastern Europe in general and in particular in the territories that were under Ottoman occupation in the Balkans, the formation of the Albanian national identity is the most atypical and perhaps the most complicated case. This is due to the fact that the Albanians as a nation, after the Ottoman conquest, faced a situation of confrontation with some very strong identities or sub-identities, such as religious identity, provincial identity, dialect-linguistic identities, etc. Particularly problematic is the fact that Albanians as a population and as a nation even today belong to at least three major religious traditions: Catholicism, Islam and Orthodoxy. The clash with these religious sub-identities in the face of the emphasis on ethnicity and language as the projected foundation of the Albanian nation by the intellectuals of the Albanian national Renaissance, but also of the state power of independent Albania, presents the object of study and the importance of this scientific research.

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Authors: Lecturer Ovidiu Horia MAICAN

The harmonisation of national competition legislation with European Union law has largely been completed in Hungary, mainly by modifying the Competition Act of 1997. The main features of the Competition Act are unfair market practices, unfair influence on consumer decisions, agreements restricting competition (vertical and horizontal), abuse of a dominant position and merger control. In the area of state aid, there is a general prohibition on the provision of such aid, with the reservation that exceptions might be determined by government decrees. In view of Hungary's accession to the EU, from 1 April 2002, further laws have come into force that are to be enforced with the Hungarian Competition Act, creating a double set of regulations. The new rules incorporate certain European competition rules into Hungarian law.

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Authors: Student Umar HUSIN; Lecturer Setiawan NOERDAJASAKTI; Lecturer Nurini APRILIANDA; Lecturer Moh. FADLI

Restorative justice is a preventive response to understanding crime in a social context. It is a challenge to unearth the roots of offence and crime to be able to break the cycle. This restorative justice is based on the assumption that the crime originated in a social situation and recognizes that the perpetrator of the crime has also been injured. Therefore, the community must take over the responsibility to improve the condition that has triggered the onset of evil and also work to cure it. International developments in the concept of criminal justice and procedures for handling criminal cases in several countries have been known penal mediation (penal mediation, mediation penal, mediation in criminal matters, Victim - Offender Mediation) which is part of the criminal justice system. Mediation, previously known only in civil law, has been frequently used in some countries to resolve criminal cases. Penal mediation is a manifestation of the concept of restorative justice, which seeks to restore the rights of victims. Thus, restorative justice is based on holistic philosophy. The application of holistic thinking can help strengthen the capacity of the existing justice system. The main challenge in its application in the modern world is how to promote community participation, and at the same time protect the rights and interests of victims and perpetrators who commit offenders. This legal research is normative juridical research, through statute approach, conceptual approach, so that it can get a comprehensive understanding of the construction of criminal case resolution law through penal mediation in the perspective of Restorative Justice.

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Authors: Professor Dobrinka CHANKOVA; Associate professor Valentin VASILEV

The paper explores the changing role of leadership in a modern organisational context. The objective is to pay attention to the relationship between traditions and dynamically changed realities in contemporary management. The relatively new phenomenon - deliberative democracy practices - and their use in modern governance are under scrutiny. The central thesis of this paper is that efficient leadership and deliberative democracy are not competing, but reconcilable paradigms and could exist in a good symbiosis. Classical research methods, such as comparative analysis of theories and practices, are used in the elaboration of the paper. The systematic approach to seek a holistic vision for the improvement of leadership in a democracy is also used. A small-scale qualitative survey among the random population about the role of leadership, public deliberation and their interaction in a time of intensive social processes adds extra value to the research. The biggest challenge faced by the theory and practice is identified - to instrumentalise the leadership and deliberative practices efficiently so that the decisions taken to be considered rational, legitimate, and protecting fundamental human and other rights of all affected who will feel respected and committed to their implementation.

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Authors: Assistant professor Roxana Maria CHIRIEAC

Considering the current COVID 19 pandemic, but not limited to this exceptional situation, contractors can experience different types of setbacks that may result in the impossibility to complete the works they have undertaken by a contract, either in due time, or at all. Positive law institutions, regulated in both common and continental law systems may help adjusting these conditions, taking into account particular situations that constructors might encounter. Thus, generally determined institutions, such as force majeure, hardship, imprevision, frustration or even the impossibility might lawfully intervene in such contracts, depending on the circumstances of each case, and also taking into account the positive law under which the contract is drafted. By this study, we aim to analyze the impact of the above-mentioned institutions on construction agreements, that in general imply a longer execution term and thus, must usually be drafted taking into account these clauses. The study mainly concentrates on the Romanian regulations in force, but also takes into account the international dimension, as we are also looking at common law institutions that are generally recognized by international practice.

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Authors: Lecturer Nicolae MĂRGĂRIT

The means of proof used in criminal cases differ depending on the content of the crime and the circumstances in which it was committed. Each means of proof has its own administration procedures. Thus, the means of proof is a legal category that designates the ways or operations by which the content of the evidence is discovered and valued under the law. The witness's statement, as a means of proof, has been known since ancient times, and can be considered the first means of proof used in judicial probation, because in the periods when those who were literate were few. The doctrine has shown that witnesses are the "eyes and ears" of justice. The reports made by the witnesses, the criminal investigation or court bodies have acquired over time different names: testimonies, testimonial evidence, witness testimony, witness testimony, witness statements, etc. In the Romanian criminal trial, in the current regulation made by the new Code of Criminal Procedure, Art. 97, this means of proof is called the statements of witnesses. The new Code of Criminal Procedure defines the notion of witness as the person who has knowledge of facts or circumstances of fact that constitute the evidence in the criminal case Art. 114. to obtain written evidence were witnesses.

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Authors: Associate professor Gina ORGA-DUMITRIU

Not even the most optimistic scenario could have anticipated the impact of Directive 93/13/EEC on unfair terms on Member States' national law 25 years ago. The original formula arranged by the EU legislator (by resorting to the conditions constituting the triple test of establishing the abusive character - the lack of negotiation of the clause, the significant imbalance between the rights and obligations of the parties and the professional violation of the good faith requirement) was strengthened by the developments at the level of jurisprudence through the exercise by the Luxembourg Court of its interpretative function. The contribution of the Spanish courts to the detailing and refinement of the reading grid of the said Directive is significant. The judgment of the Grand Chamber of 21 December 2016 testifies to this “Spanish judicial activism” being pronounced following preliminary references made by the Juzgado de lo Mercantil n°1 of Granada and the Audiencia Provincial de Alicante by which the Court of Justice was called to clarify whether i) art. 6 para. (1) of Directive 93/13 must be interpreted as precluding national case-law which limits in time the restorative effects of the nullity of threshold thresholds as a result of their finding of abusive nature, ii) national courts may limit the retroactive effects of the nullity of thresholds by applying the criteria (in good faith and the risks of serious consequences) used by the Court of Justice to limit in time the effects of an interpretation of a rule of European Union law and whether iii) art. 6. para. (1) of the same directive and art. 47 of the Charter of Fundamental Rights of the European Union on the right to effective judicial protection are consistent with an automatic extension of the solution limiting the restitutive effects pronounced in a class action to an individual action finding a threshold clause declared abusive. The novelty of the case-law, however, lies in the unpredictable and misleading analogy used by the Spanish Supreme Court to limit the retroactivity of unfair terms by using the criteria applied by the Court itself to limit the effects of interpretation in its own judgments. No less, we will comment on the meanings related to the articulation between the collective action and the individual action, the Court having the possibility in the present case to refine the reasoning set out in Sales Sinués and Drame Ba regarding the legal nature and the relationship between the two actions. Finally, we will draw conclusions from the Court's silence this time regarding art. 47 of the Charter and the correct way in which it should be understood.