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.

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Authors: Avdullah ROBAJ

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

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Authors: Teodor Narcis GODEANU

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

6

Authors: Andrea KAJCSA

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

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Authors: Roxana Maria ROBA

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

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Authors: Elena Emilia ȘTEFAN

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

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Authors: George MARA

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

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Authors: Laura RUDNYANSZKY

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

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Authors: Marioara ȚICHINDELEAN

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

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Authors: Ioana RUSU

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

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Authors: Wioleta BARANOWSKA-ZAJĄC

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

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Authors: Radu Ştefan PĂTRU

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

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Authors: Teodor Narcis GODEANU

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

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Authors: Valentina CORNEA

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

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Authors: Kolë KRASNIQI

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

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Authors: Bogdan Sebastian GAVRILĂ

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

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Authors: Cosmin SOARE

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

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Authors: Aurel Octavian PASAT

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