Perspectives of Law and Public Administration

2

Authors: Ileana VOICA

This paper aims to offer a new approach in administrative science, capitalizing on the author's experience in the field of private law.The evolution of law and judicial practice, as well as the requirements of today's society (economic, technological and strategic and, last but not least socio-cultural) require a rethinking of common law and interference in public law - private law.

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Authors: Radu Ștefan PĂTRU

The legal regime regarding the career of civil servants is regulated by the Administrative Code. The termination of the employment relationship of civil servants follows, in principle, the same legal regime with the employment relationship of employees, with the specific features of the civil service. However, the termination of employment of civil servants contains certain provisions more favorable to civil servants, in particular as regards the termination of employment for the purpose of meeting the standard age and contribution conditions for retirement. In this study, we will present some considerations regarding the approach of the legislator in the matter of cessation de jure of the employment relationship of civil servants, taking into account the regulation of the Labor Code for employees.

6

Authors: Denise MARTALOG

This study is dedicated to the analysis of the regulations regarding the will of the deceased in connection with the division of his succession patrimony, both in terms of his will manifested directly by the removal of legal heirs and indirectly by the establishment of legatees. In the elaboration of the study, we take into account the legal institution of disinheritance, the implications it has in the context of the return of the inheritance, as well as the possible situations that would not be covered by the current legal provisions. Thus, through art. 1.075 of the Civil Code, which highlights the effects of disinheritance, the legislator analyses the disinheritance of the surviving spouse, ordering that the part remaining after the allocation of the quota of the surviving spouse, be collected by the heirs from the class with which he comes in competition. We notice that the legislator discusses the “quota attributed to the surviving spouse” and does not take into account the hypothesis of allocating the succession reserve, for example in the situation of establishing a bequest smaller than the succession reserve. The disinheritance of the other heirs, other than the surviving spouse, is presented in the same way. In this situation it is necessary that we consider all possible hypotheses in case of disinheritance, so that the legal provisions to be adapted accordingly.

6

Authors: Andreea TABACU

The recent Government Emergency Ordinance (GEO) no. 114/2020 was adopted in order to ensure a flexible system of the award of public supply and public works contracts, being necessary to avoid the risk of decreasing the use of European and local founds and also the delay of implementing important projects with a large social and economic impact at the national level. The litigations in the field of the award of public supply and public works contracts represent an important cause for the delay in implementing such projects. There for the legislator chose to enforce few changes in order to ensure the jurisdictional proceedings in the respect of the main principles of contradictory and right to defense but also to encourage the use of the modern technologies and the private communications between parties. For the proper application of the law is necessary to find out if such measures are able to achieve the above purpose, also taking into account which are the realities of the systems applying these proceedings

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Authors: Mihaela-Emilia MARICA

At European level, the legal contemporary framework regarding individual employment relations is generally characterized by the proliferation of non-standard forms of employment, which respond equally to both employer and employee’s need for flexibility. Today’s enterprises face more and more situations that require a non-standard approach, a broader look at the problems and fast, innovative solutions. In an unpredictable business environment, globalization has enabled the European labour market to introduce multiple new forms of employment, which are not yet acknowledged by Romanian legislation. However, Regulation (EU)2016/679 provides a derogation for employee sharing – a new work arrangement which in the juridical context of GDPR would also apply to internal (domestic) law. The general regulations on data protection stipulate that a Data Protection Officer may be shared by several enterprises, a hypothesis in line with the concept on which the employee sharing scheme is based.

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Authors: Nicolae MĂRGĂRIT

On-the-scene research is one of the activities that contributes substantially to the achievement of the purpose of the criminal trial. According to the criminal procedural law, the on-the-scene investigation is an evidentiary procedure that serves to administer or find out some means of evidence. From a forensic point of view, the on-scene investigation represents the procedural and forensic tactics activity whose object is the direct perception of the place where the crime was committed, its discovery, detection, fixation, lifting and examination, aiming to establish the nature and circumstances of the crime. the deed, as well as the data necessary to identify the perpetrator.

8

Authors: Raluca Antoanetta TOMESCU

Morality is probably one of the oldest rules of conduct that have been imposed on members of a community, in order to establish and ensure a good coexistence. Prior to the emergence of the legal norm, it evolved with human society, being subject to continuous paradigm shifts, in a permanent attempt to reflect as accurately as possible the evolutionary trends of human communities. Although it does not yet benefit from a concrete definition or a precise limitation, morality is, first of all, the object of study of ethics, as a philosophical discipline, but when it interferes with the legal norm, inevitably a theorizing from its legal perspective becomes imminent. Plurivalent subject, but also constant of our social life, morality remains one of the most complex and controversial topics, not only in legal doctrine, but also in philosophy.

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Authors: Leoni VAN DER MERWE

Historically, in South Africa and the world over, disability has been viewed as a predicament of the individual. The discourse surrounding disabilities and suitable societal interventions are as nebulous as the differing needs of persons with disabilities within society. This article investigates the Government of South Africa’s response to the needs of persons with disabilities during the COVID-19 pandemic. The author utilizes South Africa’s existing disability framework as a mechanism to anchor the research conducted. This article specifically probes how South Africa has attempted to traverse various models of disability as well as how the said models have promoted or delayed the attainment of equality for persons with disabilities. The research conducted gives rise to various recommendations that may be adopted and refined to encourage consistency in the arduous journey towards equality of persons with disabilities.

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Authors: Cristina ONEŢ

This paper addresses the issue of the regulations contained in the Fiscal Procedure Code regarding the general principles that must govern the conduct of the parties throughout the fiscal procedure. The enunciation and regulation of these principles produce particularly important effects, and we have referred to some of them in the content of this paper. Therefore, the paper includes the presentation, critical analysis, observations and conclusions regarding the principle of legality of the fiscal procedure applied by the fiscal bodies of the state and of the administrative-territorial units, the unitary application of the fiscal legislation on the entire national territory, the exercise of the fiscal body's right of discretion in assessing and interpreting evidence and information that may be considered relevant for the correct determination of the taxpayer's fiscal situation, the active role recognized to the fiscal body by the legislator and under which it is entitled to examine the facts, obtain and use the information and the documents it deems useful for determining the taxpayer's fiscal situation, the official language in the fiscal administration and how documents and information presented in other languages can be used, the taxpayer's right to be heard in the fiscal administration procedure and its limits according to the practice of the fiscal bodies of the Romanian state, but also in the vision of the judges of the Court of Justice of the European Union called to censor these practices, the obligation of cooperation established by the legislator exclusively in the taxpayer's charge, the maintenance of fiscal secrecy as a general obligation of the fiscal body significantly diluted by numerous exceptions, and, last but not least, good faith in the relations between the taxpayer and the fiscal body for the correct application of the legal provisions.

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Authors: Mihaela SAVA

This research is structured in three subchapters, namely – the characterization of the civil and criminal legislative context that regulates the framing and sanctioning of crimes of domestic violence, identification of gaps or problematic aspects in legal or procedural matters and formulation of proposals to improve the sanctioning regime of crimes of domestic violence. The conclusions of the research are useful suggestions for the legislative and procedural unification of civil and criminal instruments to combat domestic violence.

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Authors: Marta-Claudia CLIZA, Laura-Cristiana SPĂTARU-NEGURĂ

This study started from the desire to present to the general public information on waste management, this representing a main goal in the European Union agenda, a series of legislative measures approaching waste in general and packaging waste in particular being adopted in recent years, as will be seen below. Further changes are expected in the management of plastic packaging waste, given that the European Union has agreed to introduce a new own resource based on non-recycled plastic waste amounting to EUR 0.80/kg as of January 1 st , 2021, followed by the adoption of the Regulation laying down the multiannual financial framework for the years 2021 to 20273 , as well as the Council decision on the system of own resources. We believe that the dissemination of the deposit guarantee system, an important tool for supporting circular economy, could boost domestic reforms in the field of environmental protection and would facilitate waste recycling, in order to improve living standards and to promote social welfare of the EU Member States.

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Authors: Lesotho SAFARA, Kola O. ODEKU

Undoubtedly, corruption is endemic in South Africa and it is ravaging all spheres of government, sectors of the economy, and the society at large. The news of corruption is aired frequently in the media showing suspects and trials of accused persons. Public officials, elected and unelected politicians and private sector managers and executives have been suspected, accused, or tried for corruption. Corruption is affecting both private and public sectors in South Africa. The core problem is that public officials saddled with providing and rendering quality basic services engage in endemic corruption and as such, good governance, accountability and transparency are held hostage by corruption. Corruption, which is promoted by maladministration cripples the rule of law in South Africa. While there have been many works on the implementation of domestic anti-corruption laws to root out corruption, there is a paucity of research work on how to invoke and use international anti-corruption laws and instruments that have been duly ratified by South Africa to root out corruption. Methodologically, this paper utilises a literature review approach of international and national sources to reveal various corrupt and maladministration activities, highlight and discuss pieces of transformative interventions that have been introduced by the government to root out and tackle corruption. It also showcases case laws that have been decided that punished corrupt officials. The paper found that there should be concerted and deliberate efforts by all role players and stakeholders in the government, private sector and the society at large to ensure that corruption legislation and in particular, international anti-corruption laws and instruments are effectively and efficiently implemented for purposes of tackling corruption.

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Authors: Hoolo ‘NYANE

The Constitution of South Africa establishes a cluster of institutions styled "state institutions supporting democracy", also called "Chapter 9 institutions", as they are created under Chapter 9 of the Constitution. These institutions exist alongside the traditional three branches of government – the executive, the legislature and the judiciary. They are independent, and they have powers over the traditional branches of government. There is tension between these "Chapter 9 institutions" and the traditional branches of government in recent times. At the centre of this tension lies a more substantial question about the place occupied by these institutions in the organisation of the state. Put differently, can it be said that South Africa has a constitutional scheme that includes a "fourth branch" of government? This paper sets out to investigate this question. Ultimately, the article contends that these oversight institutions have consolidated themselves into what may be styled the "fourth branch" of the state.

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Authors: Cătălin-Radu PAVEL

The present article aims to present selective aspects regarding the Constitutional Court of Romania and of the Republic of Moldova case law about the right of a person aggrieved by a public authority. The right of a person aggrieved by a public authority is constitutionally guaranteed in Romania and in the Republic of Moldova. The constitutional guarantee of the right of a person aggrieved by a public authority represents the constitutional legal basis of assuming the responsibility of the public authorities before the citizen, respectively before the injured person in a right or in a legitimate interest, having as consequence his legal protection, the latter, by cancelling the disposition and repairing the damages. The methods used in drawing up this study are: the comparative method, the historical method, the logical method, the sociological method and the quantitative method. The results of this research have highlighted selective aspects regarding the Constitutional Court of Romania and of the Republic of Moldova case law about the right of a person aggrieved by a public authority.

4

Authors: Assistant professor Marius EZER

The criminal liability related to employment is regulated by means of a special chapter in the Labor Code2. There are also special regulations, other than the ones mentioned in Romanian Labor Code, that are applicable to the participants of an employment relation in case a criminal activity is involved. These special provisions relate also to the applicable obligations arising out of the health and safety regulations where a special importance is given to the analysis of the compliance of the employers with their duties in the field of protection of their employees.

7

Authors: Associate professor Ovidiu Ioan DUMITRU; Lawyer Andrada-Laura TARMIGAN

The duty to mitigate damages is recognized as a general principle of law in most jurisdictions and moreover, as a principle of international law3. Therefore, it can be applied by courts in contract claims cases, even when it is not expressly stated by the contract. The main criteria is to determine if the party adopted reasonable measures in order to either minimize its loss or to avoid increasing the other part’s loss. The importance of this principle should not be neglected in Construction Contracts, where the Contractor is generally considered as the one obliged to take reasonable steps to reduce costs in the case of an extension of time. Even if the contract breach is attributable to the other party, the courts must consider the Contractor's behavior regarding measures meant to limit the amount damage and the overall negative effects on the economy of the contract. This paper aims to emphasize some aspects regarding the contractual behavior of both Employer and Contractor, when faced with an obligation to mitigate damages in the context of contractual delays, being a useful tool for practitioners for preventing negative financial consequences.

8

Authors: Phd. student Valdete HALITI; Phd. student Driton ABDULLAHU; Professor Gani ASLLANI

The purpose of this paper is to analyses the current situation in the field of public administration in Kosovo in the context of European Integration. This paper presents a reflection of the challenges faced by the public administration in Kosovo, in the context of the requirements for advancement and reform of public administration arising from the European integration process, respectively the requirements related to the public administration arising from the criteria Copenhagen and Madrid, on one hand, and the Stabilization and Association Agreement (SAA) on the other. The paper is mainly based on analyses of the legislation in force, which regulates public administration issues and analyses of the way that SAA regulates public administration issues, scientific literature and other important data. Result of studies show that reformation of public administration in Kosovo in accordance with the models and standards adopted and applied by other democratic states, especially the EU member states, has been and remains a crucial challenge for our country, because in addition to positive developments, various negative phenomena have also appeared, which have hindered the advancement and development of public administration in Kosovo. The article formulates recomandation the advancement of public administration represents one of the major challenges and remains the focus of ongoing reform in order to meet the EU standards, to advance further in the other stages of membership, until full membership, as a goal of the Kosovo.

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Authors: Professor assistant Veton VULA; Doctor of science Mensut ADEMI

Abstract: The phenomenon of the domestic violence in Kosovo holds an important position in the positive legislation in Kosovo. This phenomenon apart from causing consequences to an individual as a victim, at the same time it causes consequences also for other parts of the family. Domestic violence has been present also in the past in the Kosovo families, but of course with lower intensity by keeping total discretion within the family whereas access of the society in this problem was very small. Violence against women is a complex problem which includes more than an act itself in the personal relations between the husband and the wife. It is a social problem of broad dimensions whose roots are found in the historic attitudes on women and the marriage relations. Socialization of men and women in our society and nomination of women in inferior position and rules that keep women economically dependent, makes women more vulnerable on violence committed by men with whom they live. This victimization of women from their husbands is strengthened from economic situation, mentality and tradition as well as not well awareness among the population on the domestic violence. A phenomenon which increased the number of various forms of violence against women is also Pandemic COVID - 19 who as the consequence of isolation of families within closed environments has had an impact to a category of irresponsible spouses to undertake various forms of violation against women. Violence against women is a serious problem and it deserves big attention of authorities (national and international). There are dozens of years during what this problem has been put in the agendas of many national and international organizations state or nongovernmental organizations. At the international level this attention has resulted with a number of conventions, legal norms, political agreements, directives, recommendations and practical advices. Paper concludes that the denunciation without hesitation and the total respect of these norms with the zero tolerance against the perpetrators of the domestic violence is the only solution to minimize this phenomenon.

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Authors: Phd. student Muhamet BRAHIMI

This work analyzes the international identity of the European Union (EU) in the context of the new world order with a focus on issues developing in Kosovo. The development of EU and its unique character in relation to Public International Law (PIL) has made the issue of legal subjects more complex. Unlike traditional international organizations, EU is governed by the principle of supremacy. PIL is defined as the law of nations, meaning that the rules and principles are meant to govern relations between states. Although international law has now developed, and organizations and individuals are also considered as subjects of international law, nonetheless, as a starting point, international law is only applicable to those subjects that have international personality. How does the EU claim to have international personality when the member states are sovereign states, but at the same time part of a Union with elements of a state? In this context, the weight of the subject is related to the fact that geopolitics has changed and the capacity of the EU as a geopolitical actor is put to the test in the Balkans, since geopolitical competition is high amongst the big global powers.

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Authors: PhD. student Etleva PAPLEKAJ

The United States of America defined the national purpose in the first two words of its Constitution. The United States of America is the state where the rulers have gained the authority to speak, to act on behalf of 'We the People'. 'We the People' was the philosophy of the 'founding fathers' of the Constitution of the United States of America. 'We the People' was the theory, the attitude that would serve as a guiding principle of governance. For the 'Founding Fathers', the two-word phrase 'We the People' was a creed, a doctrine, an ideology in action and not in words. The history of the Constitution of the United States of America taught us that ‘We the People’ which was converted to myth deserve this conversion. Through this research, keeping in mind the content and the historical background of the U.S Constitution we will elaborate and answer the below questions. How is it possible for the Constitution that began with 'We the People' it did not list the fundamental rights and freedoms but also denied the fundamental rights and freedoms of the individuals (people)? How are explained the slavery, the denial of citizenship, the restrictions of the right to vote for different groups of American society of that time? Was there any purpose for the deprivation of the fundamental rights and freedoms of the individual in the Constitution of the United States of America? Did the Constitution of the United States of America at the drafting time recognize the right of women to vote? Through this article we will try to shed light on this seemingly contradicts between the myth of the Constitution of United States of America and the ‘denied’ or ‘unforeseen’ fundamental rights and the role of the amendments of U.S. Constitution in this process.

4

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.

5

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.

5

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.

4

Authors: Associate professor Charlotte ENE

For decades, the institutions of European Union have strived a varied range of efforts to bring the treaty provisions regarding the freedom of establishment of the companies within the single market into operation. In the view of the Court of Justice of the European Union, developed in several decisions issued from the Centros until the Polbud case, the freedom of establishment for companies includes, inter alia, the right to cross-border conversions, consisting in the possibility of a company having the nationality of a Member State to convert itself into a company governed by the legislation of the other Member State without losing its legal personality. Recently, a very welcomed piece of legislation, the Directive 2019/2121 on cross-border conversions, mergers and divisions - as part of the EU company law package, was adopted in order to stimulate cross-border mobility of the companies, and, in the same time, to provide a coherent framework for the complex cross-border operations (meaning the cross-border conversions, mergers and divisions). The question is if this directive will provide sufficient protection for the multiple stakeholder of the companies.

6

Authors: Associate professor Ana VIDAT

Temporary/restrictive measures highlighted by the legislative context – necessary to prevent and eliminate imminent threats to fundamental rights and freedoms – also target the execution of individual employment contracts; the following categories of employers are covered by the present measures: those in the private system, central and local public authorities and institutions, regardless of the method of financing and subordination, as well as autonomous utilities, national companies, national companies and companies in which the share capital is wholly owned or majority state or an administrative-territorial unit.

7

Authors: Associate professor Monica GHEORGHE

In a series of decisions ruled for preliminary questions, the Court of Justice of the European Union interpreted the notion of “working time”, as well as that of “resting time”, defined by Directive 2003/88/EC of the European Parliament and Council of 4th of November 2003 on certain matters of organizing working time. The objective of the Directive is to guarantee superior protection of workers’ security and health, providing in this respect a series of minimum rules. In terms of these European rules, CJEU had to rule again on certain submitted preliminary questions. This study aims to highlight a part of these decisions and their incidence in the employment relations practice. The national court, in settling a conflict concerning the calculation of the working time of an employee, shall be bound to verify the incidence of absolutions made by the European court in the matter and, subsequently, to apply them for the factual case it settles. Indirectly, the employers are bound to take into account the solutions of the European court.

9

Authors: PhD. student Fitim GASHI; Professor Bedri PECI

Following the national and EU legal framework, protection of personal data and privacy includes almost all type of business including the banking sector. Kosovo as a new state is trying to build a legal system which aims to be in compliance with the EU legal framework also in area of personal data and privacy and in the meantime in compliance with consumer protection rules. Taking into consideration that Kosovo recently established the National Agency for Protection of Personal Data while banks are dealing with big data, customers are faced with the situation where their data can be not treated as law requires. The protection of personal data is a fundamental right and banks deal with personal data in daily basis. We also may know that banks are obliged to receive personal data but the main challenge remains the protection of customer data and privacy. The aim of this paper is to raise the issue of protection of personal data and privacy in banking sector as the banks receive and handle personal data in a daily basis. On this paper we will see how the protection of personal data is regulated and how banks are obliged to protect personal data and customer privacy in Kosovo and how it has impact in the consumer protection in banking sector.

10

Authors: Teaching assistant Adelina RAKAJ

The aim of this case study is to analyze the protection of the rights of the defendant in criminal proceedings and the implementation of international standards on the rights of the defendant in criminal proceedings in the domestic law of the Republic of Kosovo. This paper will focus on the role of the Constitutional Court of Kosovo in protecting the rights of the defendant during a criminal process, based on specific cases decided by the Constitutional Court of the Republic of Kosovo. For more than ten years since the Declaration of its Independence, Kosovo has established a legal system, which provides effective protection for the rights of a defendant. A significant role in this regard was played by the fact that Kosovo directly applies the jurisprudence of the International Court on Human Rights (ECtHR), as a constitutional obligation. Out of all institutions of the legal system in Kosovo, which are obliged to protect the rights of defendants, a determinant role was played by the Constitutional Court in such regards, therefore, this paper presents arguments how the Constitutional Court of Kosovo has become a guardian for protection of the rights of defendants, in compliance with the Jurisprudence of the ECtHR.

10

Authors: Ph.D. student Costin MOLDOVEANU

This study is focused on the divergences of jurisprudence that appeared following the amendment, as at mid-2018, of the rules of territorial jurisdiction inserted in the content of the Law on Administrative Contentious. The new provisions establish the exclusive territorial jurisdiction of the administrative contentious court of the place of domicile of the natural person or of the place of registered office of the legal person of private law, part of the judicial conflict of administrative law, facilitating the access to justice of the individual by the proximity of the seat of the court, the reduction of paid court charges etc. However, the desiderata taken into account by the initiators of the legislative amendment were not achieved in the case of disputes brought by trade unions having as scope of works the employment relationships of civil servants, trade union members. The different appreciation of the capacity in which the trade union can participate in the lawsuit (plaintiff or simple representative of the civil servant) determines jurisprudential divergences in establishing the competent court from a territorial point of view, successive dismissals and numerous negative conflicts of jurisdiction. Analysing the legislative framework and the relevant jurisprudence, including from the point of view of their evolution, at the end of the study concrete proposals are made to underlie the unification of jurisprudence and even the regulation of special rules of territorial jurisdiction in disputes that call into question the employment relationship of the civil servant.

11

Authors: Lecturer Ovidiu Ioan DUMITRU

From our beginning the fight for resources and the human wish of growth and wealth leaded to a competitive behaviour of individuals and, by extension, that of their economic undertakings. While some developed an economic outlook on competition, there were some authors furt her adding the legal component as a governing principle of competition. In the spirit of a form based approach, early EU competition law aimed to insure the economic freedom, missing openness towards certain practices. The founding Treaties, the modifying ones and the European acts in the field outlined the safeguarding of the internal market as a goal of competition law. Still, an important source of European competition law was offered to us by the case law. The shift towards the effects based approach en sued the regulation as ex post assessments of the merger impact on competition were undertaken. Different implications of Merger Control in EU competition law will be discussed in this paper, one which follows the spectacular evolution of the impact of dif ferent European Decisions on the change of competition law. The paper is a study on evolution of the Merger control and the analysis how much impacted two European Commission decisions prohibiting mergers the Single Market the reforms of each regulation de velopment before each one of them.

3

Authors: Associate professor Charlotte ENE

One of the most important concept of international law, jus cogens, still has a controversial significance. Jus cogens is a Latin term meaning a mangatory or compelling law, and it refers to the peremptory norms of general international law from which derogation is forbidden. Despite the formal recognition of this legal concept, based on articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties, regarding the nullity of the provisions of a treaty which come into conflict with a peremptory norm, jus cogens has a wider application in the international realm than the law of treaties. Therefore, jus cogens can appear in different forms, such as treaty law, customary law, general principles of law, etc., according to the content of the norms. This paper aims to analyse the significance of this legal concept, the role of it in international law and the relevance of it for the international doctrine and the jurisprudence of international courts.

4

Authors: Professor emeritus Ileana CONSTANTINESCU; Lecturer Adriana MOȚATU

Our objectives are to present a case study of a piece of land owned in adverse possession, with the surface of 200 sqm situated in Bucharest, although occupied for more than 28 years, which was the subject of a trial for adverse possession, this trial was lost on the merits, appeal and second appeal. Parallel with the promotion of the extraordinary way of attack of the revision, it promoted in the court a case for the absolute partial nullity of the title of property issue on the name of another person, a year before this title of property was obtained, this person sold the land to her son during the process of adverse possession performance. This case study shows that, by the partial absolute nullity of the title of property, the first owner runs the risk to lose 200 sqm of the title of property, all the subsequent documents being under nullity, not valid anymore. The research method used was the study of some passed judicial resolutions, of a title of property and some sales-purchase contract. The results of the research led us to the conclusion that the court in Romania was correct when it allowed that the City Hall send the file to the court, the administrative file which was at the base of issuing the title of property according to Law no. 18/1991. The results of the study show that in this case irregularities were done as far as the issuance of the title of property is concerned, considering that there were no proofs before 1989 for the given title of property. Our study implications are done in the sense of a more attentive check of the authorities in order to issue the title of property and their validity.

4

Authors: Associate professor Ana VIDAT

Child-raising leave is a right conferred by applicable law; however, in many cases, exercising this right can lead to a career break, in the vocational training, in the process of reintegrating into the group the employee who returns to work at the end of 2/3 years

5

Authors: PhD. Lidia-Lenuța BĂLAN

The human being has been since the creation in full process of knowledge, of satisfying human needs but also of wellness, which represented on the one hand a progress, and on the other hand, it represented a forced acceleration of his life on earth, a situation that has created an exhaustion of all that means environment, disturbing the natural balance of nature and contributing to a significant degradation of environmental factors: atmosphere, water and soil. Water, as an environmental factor, essential and indispensable for human existence for survival, knowledge, wellness and progress, has become, in time, an exhaustible resource for the human being and the activities undertaken by it. Under the strong effervescence of the pressure of exhaustion and degradation of water resources, by the deposition of dangerous substances and materials, the necessity of creating new forms of constraint directed against those who disturb the natural balance of water resources was realized. These new forms of constraint and prevention of depletion of water resources, have taken the form of legal instruments meant to solve the problems arising in the prevention, protection and mention of water quality, but which will determine a sustainable progress for the population and for present and future generations.

5

Authors: Lecturer Mentor LECAJ

In order to have a clear overview regarding the Iranian nuclear program, and weather any indication that Iran has deviated from its peaceful nuclear program, we must investigate Iran's true motive for possessing nuclear weapons. Analyzing every detail of the reasons and motive of Iran, Iran's covert actions in one side and the motive of the western countries in another side to accuse Iran of enriching uranium illegally, and after summarizing and analyzing all the "points", then will be easier to have clear overview over suspected Iranian nuclear program. This paper will use the method of analyzing and comparing the motivation and reasons pro and contra regarding processing and possession of nuclear weapons. This scientific article will contribute to clarifying the whole puzzle of the Iranian nuclear crisis, which itself incorporates different significant factors such as: legal, political, security one.

6

Authors: Lecturer Cristina COJOCARU

Under Romanian law, insolvency shall be initiated at the request of the persons entitled, usually the debtor or the creditor. After checking the fulfilment of the legal conditions, the syndic judge will order the opening of insolvency proceedings as well as the measures to be taken to know precisely the financial situation of the debtor, the causes that led to the situation of insolvency and the way forward, i.e. the general or simplified procedure. The judicial administrator draws up a report based on which the syndic judge shall decide either the continuation of the general procedure in order to observe the chances of recovery of the debtor on the basis of a reorganization plan or the transition to the simplified procedure: the bankruptcy procedure. In the first case – that of the general procedure – a reorganization plan will be applied, leading to the improvement of the debtor's activity and the payment of the debts to its creditors; in the second case, there are some steps that will lead to the liquidation of the debtor's estate to cover the claims of the creditors. Without claiming to analyses the topic extensively, the article aims to underline the most important aspects about entering the insolvency procedure.

6

Authors: Professor Ion RUSU

In the present paper we have examined the institution of waiving the criminal prosecution, as provided in the current law, a text which was modified after the publication of the Decision of the Constitutional Court no. 23/2016. We also considered the formulation of critical opinions regarding the possible existence of other elements of unconstitutionality in the text in force. A very important aspect is the notification of the absence in the text, of some provisions that condition the application of the institution on the need to repair the prejudice caused to the victim. The paper can be useful to students and master students of the country's faculties, as well as practitioners in the field. Also, the work can be useful to the legislator for operating some changes in the current content of the text that regulates this institution.

7

Authors: Associate professor Sandra GRĂDINARU

The present paper intends to analyze the real and effective possibility of a civil party in a criminal trial to recover the damage created by the convicted person, under the conditions in which the criminal court orders the sentence to imprisonment but chooses as the option of executing the sentence, a supervised suspension. The basic idea of the present study starts from the possibility of the civil party to request the revocation of the suspension under supervision of the sentence applied to the convicted person, given that it has no other methods to recover his damage by other means of coercion. Present study aims to analyze the jurisprudential optics of the Romanian courts, notified with the solution of such a request, the argumentation being concentrated around the criteria in relation to which the conduct of the convicted person is analyzed during the probation period. The institution of the revocation of the suspended sentence under supervision established by the Romanian legislator is not adapted to the socio-economic conditions in Romania, in the sense that the provisions of the positive law do not establish the criteria in relation to which the criminal court can settle such a request. The academic and practical interest of the present approach is mainly given by the comparative presentation of the solutions pronounced in this field, starting from a specific case analyzed critically. The scope of addressability of the work is relatively extended, being useful not only to the legal practitioners: lawyers, executors, probation counselors, prosecutors, judges, etc., but also to the civil parties - natural or legal persons (public institutions or commercial companies), being in the impossibility of recovering the damage definitively found by a criminal decision convicting the defendant who committed mainly an economic offense, or subsidiary any offense against the patrimony.

8

Authors: Lecturer Ana-Maria LUPULESCU

The dissolution ends the existence of the company, representing the first stage of this process. Once dissolved, the company survives only for the needs of its liquidation, and upon completion of these liquidation operations, its existence ceases permanently. Similar to its setting-up, the termination of the existence of the company is a process that lasts in time, having a variable duration, in order to carry out operations that are indispensable in order to put an end to the existence of the entity created by the company contract. The dissolution, followed generally by liquidation, does not apply only in relation to the termination of the existence of companies having legal personality. On the contrary, the cessation of companies without legal personality implies the same process. Therefore, the dissolution is not necessarily related to the legal personality of the company. Moreover, even in the case of companies having legal personality, the dissolution does not, by itself, lead to the end of the legal person, because this one survives, but in another, more restricted form, limited to the performance of the liquidation operations. The present paper does not intend to analyze, in an exhaustive manner, the matter of the dissolution of companies, but only to emphasize some aspects which may be relevant both for theoreticians of law, but also for practitioners. This analysis is particularly useful in the context in which a certain conceptual and terminological inconsistency can be noticed between the regulation contained in the Civil Code and the one provided by the special laws on companies.

8

Authors: PhD. student Günay DUAGI

The fiduciary management represents, together with the fiduciary guarantee, the most used type of fiduciary contracts. This modality of fiducia has become the preferred way of using this institution in practice, a fact proved by the registrations in the National Register of Mobile Publicity. Moreover, this branch of the fiducia is in fact the archetype of this institution. The benefits of the fiduciary management are numerous and were only partially discovered in practice in Romania and through this study we want to highlight other benefits. Among the benefits of this type of fiducia with important implications in the civil circuit we mention the possibility of entrusting a patrimonial mass to some professionals in order to manage these assets as efficiently as possible, maximizing the profit generated by the fiduciary mass without the impediments related to the formalities required for a mandate, overcoming the problems related to representation of the beneficiary in the context of corporate, capital market or transaction deals. As regards the practical applications of fiduciary management, these can come from various fields of civil law. Among the most used we list the following: shareholder management in a commercial company, real estate management, management of a trust consisting of financial assets, management of civil lawsuits, management of assets owned by foreign residents, business management, management of the assets of minors / incapable.

8

Authors: PhD. student Mihai-Adrian DAMIAN

The Civil Code provides for the attributions for the family council a framework provision which is comprised in one article, namely Art 130. The legal text is complex, being structured of 4 paragraphs creating an image of ensemble over the role fulfilled by this guardianship organ, as well as over its specific means of functioning. The current paper aims to approach this issue starting from this framework regulation, but in the same time to consider each legal provision through which the legislator sets tasks for the family council converging towards its role of supervision of the guardianship.

9

Authors: Phd. Nicoleta ȚĂNDĂREANU

The present paperwork aims to approach some aspects related to the procedure of appointing the assessors and evaluating the assets of the debtor who is in insolvency, at the different stages of the procedure. The assessor in the insolvency proceedings is an independent assessor and must be definitive and compatible insolvency practitioner, on the list of the National Union of Insolvency Practitioners in Romania, with the right to carry out expertise in the insolvency proceedings and a member of the National Association of Romanian Assessors. The assessor must take into account the type of specific value in relation to the pursued purpose. Therefore, the valuation of the assets brought as guarantees, in order to prepare the definitive table of the debtor's claims, will have to take into account the market value, while the evaluation of goods for sale in order to obtain liquidity to cover the expenses for the procedure, including for the conservation of the wealth of the debtor, or in order to liquidate the bankruptcy liability, will have to consider their liquidation value.

10

Authors: Lecturer Andrada NOUR

Corruption is an extremely complex phenomenon, contrary to the democratic principle, manifested negatively in both domestically and internationally. Thus, mainly internally, corruption generates distrust in the institutions of the state and the administration of justice, affects economic progress and good governance, and externally, alter the credibility and image of the state. Corruption can know in practice a variety of forms, traffic of influence being one of the most representative expressions of corruption. Since traffic of influence falls in the category of the crimes with a very high degree of social danger, it has been incriminated in international and community legal documents of reference for combating corruption. In our country, it tries to combat this crime by regulations aimed at a variety of concrete forms of expression, regulation which are the subject of our study.

12

Authors: Lecturer Nicolae MĂRGĂRIT

In the fight against trafficking and illicit drug use, internationally there have been numerous regulations in the field, with states focusing their efforts to combat this scourge. On February 19, 1925, the "International Opium Convention" was signed in Geneva. This Convention regulates the import licenses and export licenses for substances and products with a narcotic content, following a permanent surveillance of the drug movement on the plan. international. On March 30, 1961, in New York, the "Unique Convention on Narcotics" is adopted. In 1971, the Convention on psychotropic substances was adopted in Vienna in the plenipotentiary conference of 77 states with the participation of the World Health Organization, the International Narcotics Control Body and the International Criminal Police Organization (Interpol), the Convention coming into force on August 16, 1976. Countries in the world through legislative measures regulated the circulation and consumption of narcotic products, the 20th century has not undergone radical changes regarding the attitude of the population towards drugs. As a result of the intensification of the narcotics trafficking, it has determined the countries affected by this scourge to modify the internal legislation exercising tighter control. In this context, the Romanian legislation is also inscribed, a great responsibility regarding the application of the law being the duty of the judicial authorities.

16

Authors: PhD. Student Maria Irina BUDICĂ-IACOB (IACOB)

The right to dignity is fundamentally linked to the human being. Any breach thereof must give the holder the opportunity to repair the prejudice caused. Most of the time the prejudice is primarily non-patrimonial, which makes it more difficult to remedy. The right of reply gives the interested party a non-patrimonial remedy of the dignity through the possibility of restoring his/her reputation by presenting his/her variant of truth. The purpose of this paper is to highlight the importance of granting the right of reply in the shortest possible time and through the fastest possible means, including through provisional measures. Its recognition at the legislative level only in the field of audio-visual communications is not sufficient, but may represent a starting point for its extension in the civil law. The lack of an express regulation in civil matter does not, however, impede its granting, but the observance of some conditions specific to the civil means of protection of the personality rights is required, and the time elapsed until its exercise is longer and the reply may become inconsiderable. Reparation by equivalent cannot fully restore the right to dignity, which is why the legislative recognition in civil law of the right of reply is required as a personality right in the interest of the individual's self-determination regarding the public presentation of his/her person.