Juridical Tribune - Tribuna Juridica

6

Authors: Assistant professor Radu-Ștefan PĂTRU

The obligation to inform the employee is one of the most important obligations of employers in labor relations. Regulated by art. 17-19 of The Labor Code, the employee's obligation to inform the employee is the subject of controversy in doctrine and practice. In this study we will analyze the applicability of the information obligation and make proposals for lege ferenda on the basis of the arguments presented.

7

Authors: Assistant professor Andreea STOICAN

The principle of law of the availability implicitly includes the possibility granted by the lawmaker to the parties to perform proceeding disposition acts. As regards relinquishing the legal action, the Civil Procedural Code applicable to date included, in art. 406, para. 5, an apparently irrelevant amendment; however, the jurisprudence shows this cannot go ignored, as the premises of party damage proved to be present. Therefore, this paper aims at sounding the alarm on the potential consequences of annulling previous Court Orders in case of relinquishing the legal actions during the appeal proceedings or in the extraordinary legal remedies, which, as proven by the jurisprudence in Court, may lead to important losses for the Party that is not at fault.

8

Authors: Professor Marioara ȚICHINDELEAN

This paper assesses certain aspects regarding the establishment of the employment contract for the professional foster carer from the perspective of internal and international norms, legal practice (internal, ECHR, CJEU), which characterize this type of employment contract for the purpose regulation thereof, namely the requirements and needs of children in foster care. The legal framework on the exercise of the foster carer profession stipulated by Government Decision (GD) 679/2003 brings into effect the provision of art. 62, section 1, let. b of Law no. 272/2004 on the protection and promotion of the rights of the child. In the following, we shall identify the non-exhaustive particularities of the employment contract for the professional foster carer that justifies the classification thereof within the special employment contract category.

8

Authors: Associate professor Ana VIDAT

The International Labor Organization adopted, in 2006, Recommendation no. 198, synthetically describing the features of a working relationship. Thus, work done in a labor relationship must meet certain requirements, namely: to be performed according to instructions and under the control of another person; to involve the integrator of the organization in the organization of an enterprise; be executed exclusively or principally for the account of another person; be personally fulfilled by the worker; to be carried out in accordance with a determined timetable and at a specific place or accepted by the beneficiary of the work; have a given (predetermined) duration and show some continuity; to assume that the worker is at the disposal of the other person; to involve the beneficiary in the provision of equipment, materials, energy, as the case may be. In its turn, the High Court of Cassation and Justice stated in Decision no. 574/2011 that – in order to qualify a contract as a work – there must be three elements, namely: performance of the work as the primary purpose of the contract; remuneration of the work done; the existence of a subordination report. In the absence of the subordination report, the contractual relations agreed by the parties are not objectively reflected in an employment relationship, but remain only in the sphere of civil law.

9

Authors: Associate professor Marieta SAFTA

The importance of prevention in the fight against corruption is indisputable. However, prevention is effective and sustainable if it works, meaning that tools and strategies that are fit to achieve this goal need to be identified. The regulation of persons who give integrity warnings (whistleblowers) and, in this context, their legal protection are part of efforts to identify such instruments. The present study reveals aspects of the evolution of regulation for those who give integrity warnings in Romania and the world in an attempt to identify solutions for this instrument itself to become effective in preventing corruption.

10

Authors: Dr. Iur. Olga SOVOVA, Ph. D.; Miroslav SOVA, MIT; Dr. Zdenek FIALA, Ph. D.

The paper reviews and critically examines sharing e-document-based information between public administration and private sector. The documents are not only generated and rchived, but also shared among public administrators. The private sector supports digitisation and computerization of public administration. The protection of privacy of persons and confidential information, especially economic about legal entities, together with the necessity of circulation of information within the national state and cross-border, bring new legal and technical challenges. The paper examines legal issues of the right of informational self-determination, privacy protection of the e-data information exchange between the public and private sector. The paper concludes that new relations to technologies form an inevitable and fundamental sign of a post-industrial society, but the professionalism of the public administration together with the duty of confidentiality and the right for privacy together with appropriate legal regulation should guarantee that technologies be used solely for legal interference with the right for informational self-determination.

10

Authors: Assistant professor Laura-Cristiana SPĂTARU-NEGURĂ

The right to property is a human right that has to be respected so that if the property of a natural or legal person is taken over, the respective person has to be compensated. The right of a state to control the economic business is one of the rights sustained and exercised by the states on a constant basis. This reflects the inherent sovereignty of a state to control its people, incidents and objects found on its territory. Between these rights, the situation of indirect expropriation appears which has been described in the doctrine as being very abstract and rigid, big lacunae existing. The sense of the indirect expropriation and of the international investors’ protection against the indirect expropriation is very ambiguous. Using different methods specific to scientific analyse of the legal phenomenon (e.g. the logical method, the comparative method, the historical method and the quantitative methods), we consider that through this paper we can reach certain results that could be interesting for any legal practitioner or theoretician, this paper intending to present the most relevant cases that could amount to indirect expropriation.

11

Authors: PhD. student Silviu-Marian MUNTEANU

Potestative rights are still representing an exotic category of subjective civil rights. We are saying that it represents an exotic category because, although in practice they are frequently encountered, the theoretical approaches regarding their general legal regime are extremely limited. Therefore, in the present study we will focus on identifying the characteristic features of potestative rights, as well as highlighting the similarities and differences between these rights and other categories of civil subjective rights. From this point of view, we will focus on the similarities and differences between potestive rights and debt and in rem rights, concluding that potestative rights are a category of intermediate rights, as it lends specific features from both, debt and rights in rem. Also, starting from the potestative rights definition provided by the schoolars, we will analyze, one at a time, their defining elements and explain how these characteristic elements should be understood. Therefore, we will focus on the defining elements of potestative rights, namely: (i) the power of the potentior to change a legal situation involving the interests of another person; (ii) the bond of obedience; and (iii) the specific object.

13

Authors: Lecturer Simona CHIRICĂ

The new Regulation regarding the reception of construction works and corresponding installations, approved by Government's Decision no. 347/2017 (“Regulation 2017”) has general applicability for all construction works for which there is an obligation to obtain a building permit. Regulation 2017 brings significant changes and clarifications expected by the real estate sector regarding: (i) the composition of the commissions nvolved in the reception procedure, (ii) the role of the site supervisor who thus gains significant participation in the reception procedure, and (iii) the participation of the public authorities' representatives at the reception, having the veto right on the decision of the reception commission upon the completion of the construction works. Another element of novelty brought by Regulation 2017 is the possibility to do the reception upon the completion of the construction works, respectively the final reception for parts / objectives / sectors of or from the building, if they are distinct/ independent from a physical and functional point of view. Thus, the new regulation facilitates the procedure of authorizing investment objectives and the costs of the process. The partial reception is another innovation brought by the Regulation 2017 in support of the investor, who can thus take over a part of the construction, at a certain stage, and obtain its registration with the Land Book.

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Authors: Professor Nadia-Cerasela ANIȚEI

The provisions of Article 2570 of the Civil Code regulate two types of habitual residences, namely: the habitual residence of the individual (paragraphs 1 and 2) and the habitual residence of legal persons (paragraphs 3 and 4). The Romanian Authority must use pursuant to Article 2570 of the Civil Code the Romanian meaning of the concept of “residence”. Therefore, in order to make the primary qualification of the concept of “residence” in Romanian private international law it is necessary to take into account the scope of the concept of residence in Romanian domestic law. This article aims to study and analyze the instrument of the institution of residence of the following legislation: We will try to analyze in the first point which is the meaning of the notion of residence in Romania of Romanian citizens, and in the second point we will study the meaning of the notion of residence in the case of foreigners who establish their residence in Romania. Article 88 Civil Code; Chapter IV (art.26- 41) of the Emergency Ordinance no. 97/2005 on the records, domicile, residence and identity documents of Romanian citizens republished (2011); Government Decision no. 516/2009 amending Government Decision no. 839/2006 regarding the form and content IDs, the sticker on the book of their residence and property. Decision no. 516/2009; the provisions of Emergency Ordinance no. 194/2002 on foreigners in Romania republished (in 2011) and the provisions of Government Emergency Ordinance no. 102/2005 on the free movement of citizens of member states of the European Union and European Economic Area (republished in 2011) in order to derive the Romanian qualification of the notion “residence of the individual”.

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Authors: Professor Florin DUMITER; Assistant professor Ștefania JIMON

In this article we wanted to achieve a comprehensive analysis of corporate profit tax for non-residents, from the standpoint of the issues that it creates on the double taxation of income and capital. Taxing the corporate profits of non-residents is a particularly important aspect in terms of revenue growth, encouraging foreign investment, and strengthening cross-border trade. The “source” state will decide the legitimate right to tax the profits of businesses that operate within its jurisdiction. Tax treaties do not impose limits on these types of taxing rights, other than those stemming from the obligation to impose profits, since the issue of taxation is “satisfied”. Moreover, the source of tax revenue belongs to the source state. Thus, we can see that it is unlikely that the state of residence of a non-resident taxpayer should want to “share” such tax revenue. It can be observed that the state of residence also has the right to tax the profits, but in general it gives credit in respect of taxes of the source state or deducts them for the purpose of preventing the occurrence of double taxation. If the state of residence provides a credit for taxes paid within the source state, taxes which have not been collected and owed to the source state will constitute a tax transfer to the state of residence, from which the taxpayer will not have any benefit. As regards Romania, in terms of the treatment of enterprises, this article represents a real quid pro quo, as it tackles both the international and national taxation of corporate profits, through the provisions found in the new Fiscal Code and the Code of Fiscal Procedure, as well as the new proposals on the taxation of turnover in companies, all of this extrapolated with the new proposals for turnover tax from IT giants. The article ends with the presentation, comment and analysis of a case of international double taxation, more specifically the taxation of corporate profits, a topic of great importance and current interest regarding jurisprudence in Romania, having the aim to observe, mutadis mutandis, the way in which business profits are taxed in practice. The conclusion of this article is intended as a genuine caveat to meet the needs of taxpayers and tax authorities on the need for such measures, both nationally and internationally, in terms of corporate profits, measures that have to take into account the international framework of the contemporary business environment, which is constantly changing and evolving.

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Authors: Associate professor Vladimir SAVKOVIĆ

The paper examines both likeliness and expediency of establishing horizontal direct effect of the TFEU provisions inaugurating the free movement of capital as the “youngest” of the four fundamental freedoms in the Single Market. In pursuing this aim, author starts with portraying the status quo regarding horizontal direct effect of other fundamental freedoms and attempts to deduce from some of the cornerstone cases the most important arguments given by the CJEU, i.e. key rationale utilized thus far for establishing horizontal direct effect. After these general analyses, the author examines the current scope of application of the free movement of capital provisions in view of the issue at hand and investigates whether in conjunction with the reasoning of the CJEU in other free movement cases similar approach is likely to be utilized in order to establish the same effect of Article 63 TFEU. Finally, notwithstanding certain opposite opinions, the author establishes that this particular fundamental freedom becoming horizontally effective is not something likely to happen any time soon and makes an effort to support such standpoint. Moreover, conclusion is put forward that even if it opts for such course of action the CJEU should take certain preliminary, i.e. precautionary measures.

7

Authors: Assistant professor Cristinel GHIGHECI

In art. 16 paragraph (1) – (4), the new Romanian Criminal Code refers to some psychological processes, such as representation and willpower, which lead us to believe that the psychological theory of guilt has been preserved, being also mentioned in art. 19 in the old Criminal code. This theory of guilt has known many tendencies over time, entering our doctrine and legislation as the theory of representation. According to this theory when someone wants to do a certain physical act he foresees the consequences of that act, meaning that in his mind he has the representation (the image) of the natural consequences following that activity, and this representation of the result, the finality of the willful activity, is an act of conscience accompanying the act of will. These are reference points to be taken into consideration when the judiciaries analyze the criminal guilt whenever an offence has been committed under the criminal law.

9

Authors: Student Anthony MURPHY; Student Vlad STANCESCU

The following study intends to analyse the evolution of theories regarding the recognition of states in international law. Whereas the Montevideo Criteria contains the legal requirements for statehood, recognition is largely dependent on the political will of the other states. The question faced by the contemporary international community is whether a state is held to recognise another if it meets the said requirements. While the Constitutive Theory insists that a state could only exist as an international legal person if it is recognised by previously-established states, the Declarative Theory rejects such a discretionary process. While the common practice among states was argued to be somewhere in the middle of these two theories, the declarative conception is much closer to the current model followed by the international community as it is also enshrined in the rules contained in the Montevideo Convention and reiterated by the Badinter Commission.

9

Authors: Associate professor Cătălin-Silviu SĂRARU

The article, analyzing the administrative litigation in the comparative law, groups the existing types of administrative litigation into four major systems, namely: a) States with administrative jurisdictions who have the State Council on top, administrative body with consultative and judicial role (the French system); b) States with administrative jurisdictions completely separated from the active and consultative administrations (the German system); c) States with administrative jurisdictions included in the judicial system; d) States with no administrative jurisdiction (English system). The administrative contentious systems analyzed have developed in line with historical evolution and legal traditions and have been continually adapted to the realities existing in each state. The manner in which the administrative contentious is regulated in a State reflects the degree of democratization of that country, the extent to which the citizen enjoys legal safeguards to defend himself against abuses by public authorities. The scientific novelty of this article is to capture the latest trends in the evolution of the administrative contentious systems analyzed. This study aims to provide an easy working tool for reforming administrative litigation on comparative law in states with young democracy. In the research we used the comparative method, the historical and the logical method.

10

Authors: Assistant professor Bogdan BIRZU

Within the present study we have examined the provisions concerning the objectives and duties of Europol, a fundamental institution with special responsibilities for preventing and fighting crime and especially the organized crime at EU level. These provisions are set out in Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016, a relatively new legal instrument, by which there were repealed other European legal instruments regulating the Europol activity. The conducted examination includes some critical comments concerning in general the need to broaden Europol's jurisdiction regarding the enforcement of the coercive measures in cooperation with police authorities of the Member State in which operational activities are carried out. At the end of the article, it is emphasized the need to adopt a new European legal instrument regulating the organization and functioning of Europol and the need to engage more effectively in this line with each Member State, with the reservations raised by the criticisms made. The paper may be useful to practitioners in the field, and equally, to academics and the European legislator.

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Authors: Lecturer Maria Magdalena BÂRSAN; Master student Maria Magdalena CARDIŞ

The right of retention has in the current legislation his own regulation, which finds its sources in jurisprudence and doctrine. The necessity of regulating this right comes from its practical utility, its efficiency as a legal mechanism being also taken into consideration. The present article follows general aspects and exceptions concerning the right of retention, aspects intending to draw the outlines of the meaning of the right of retention. Furthermore, the domain of enforcement of the right of retention has been taken into consideration, starting from specific legal disposition, which are derogatory from the ordinary law.

13

Authors: PhD. Student Nasrin Salehi SHAHRABI; Student Mohammad MAHAIE

The role of women is examined by referring to the executive power of family courts, in fact their ultimate power, and by the reason why input issues in these courts face legal weaknesses. This article begins with examining the constitution and posing some questions. We are in search of an answer to the first question regarding the status of women in constitution, referring to the significance of this place from the perspective of a lawmaker. We follow the article by examining the twentieth and twenty-first principles and posing some questions. For example, a question raised is that why equality of rules for men and women, which is discussed in the constitution, is not observed in statutory laws in practice. By exploring different theories on the twentieth principle of the constitution of the Islamic Republic of Iran, we investigated a clause from the twenty first principle. Also, by posing some questions, we tried to conclude if women in Iran get their material and spiritual rights. By a quick look at the development statistics, we analyzed the clause of the twenty-first principle, mentioned rights of this stratum of society during pregnancy and came to a conclusion by their examination. We pursued by raising and reviewing the questions on custody along with studying the legal materials around this issue. Finally, we examined women's inheritance. After selecting and collecting the presented articles, we can created another definition in the men and women's minds about the rights and change their attitude regarding their lawful and conscience right if law makers pay attention and try to improve the civil laws on this specific issue. We can also solve family issues through arbitration and observe the increasing clients' reduction to the family courts.

14

Authors: Assistant professor Keihan BARZEGAR; PhD. Student Fatemeh Sarreshteh IZADMOOSA

Today, "right to social security" is directly related to responsible governments that have been highlighted in international documents. It is the responsibility of the government in international relations and they are required to provide this right to all its citizens. The issue of “right to social security" is considered more in the second generation of human rights. The authors of this article are believed, governments are responsible of toward the right to social security situate the exact study. The main hypothesis of this paper is that the right to social security in international documents as a principle of human rights and the second generation of human rights. Unlike the first generation, fundamental freedoms that governments are focusing on non-interference in the second generation of human rights, government is responsible for social security for all its citizens without any discrimination and committed to the international instruments, are accountable. The authors conclude that administration to avoid war, violence, social justice, reduce class conflict; poverty and human dignity, the right to social security as a human right recognized in international instruments and governments are responsible for social security for all citizens.

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Authors: PhD. Cristina Elena POPA TACHE

Worldwide, the entrance restrictions for foreign investment were eliminated or restricted in a wide range of industries, especially mining (among other fields such as aviation, financial services, real estate). Foreign investors still remain reluctant to placement of investments in developing countries, shall be required also to seek host countries with a certain degree of stability in the existence of international treaties on investment In conclusion, it is emphasized that the investment environment must substantiate its order and hierarchy on a set of regulations with a mandatory character, as the soft law regulations, such as conduct codes of the transnational companies, the project of articles regarding the responsibility of states of the International Law Committee, the arbitrage practices (that does not admit precedents) or other acts without mandatory force have proven insufficient. An especially important role is played by the common effort of experts to expose all the forceful positions, as well as the vulnerabilities of all the actors involved in international investments, so that, through a full and objective analysis of these aspects, firm regulatory solutions may be extracted.

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Authors: PhD. Student Seyed Mohammad Reza Najafi YAZDI; PhD. Student Reza KHALESI; M.A. Student Amin KHALESI

Affair problems with foreigners in the country, according to the authors own survey shows a lack of consistent practice Court with the author's comments, as well as global developments in this area, to examine the issue from a theoretical and practical layout and helpful as well. In this article, after the introduction, the first part under the laws, to review current regulations with records historic them. In the second part, the authors studied the doctrines and opinions. In parts of third place Law and private international foundations in Islam as New Law International expressed particular Islam. Examples of performance Court and advice office legal representative of the Iranian judicial procedure, the fourth paper forms. In the debate of comparative law solutions offered by law in France, Switzerland and Germany as well viewpoint of each was investigated. In the end, the conclusion is that according to law of Islamic Republic of Iran and global developments in determining of law governing personal status, it is necessary to interpret Article 7 of Civil law profound changes be made in accordance with the current situation in Iran and the world.

11

Authors: Research fellow Pavlo SELEZEN

The term ‟beneficial owner” has been interpreted by Ukrainian courts concerning the application of double taxation treaties’ provisions since the adoption of the Tax Code of Ukraine in 2010. Changing nature of the beneficial owner concept, its importance as an instrument for treaty shopping counteraction and the necessity of its proper interpretation in the Ukrainian reality are the main factors that have a strong impact on the development of court practice concerning beneficial ownership. The article focuses on the prevention of tax avoidance as one of the purposes of double taxation treaties and its role in the interpretation of the term ‟beneficial owner”. The analysis is based on the practice of the Supreme Administrative Court of Ukraine on interpretation of the relevant provisions of the Convention between the Government of Ukraine and the Government of Switzerland on Avoidance of Double Taxation with respect to Taxes on Income and Capital as of 30 October 2000.

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Authors: Senior lecturer Matthew Enya NWOCHA

This paper is written against the background of frequent bank failures, mergers and winding-up of banks which have caused a great deal of apprehension in the minds of bank customers, depositors and creditors in Nigeria. The paper therefore is aimed at interrogating the legislative intervention in this regard and in particular the role that the Nigeria Deposit Insurance Act has played in mitigating the uncertainty and hardship that has been occasioned by incessant bank failures in the country. The method of research here is the use of the NDIC Act and other related legislation as primary sources of research in addition to secondary sources such as works authored by legal scholars. The paper has found that legislative intervention has reduced the incidents of bank failure and also offered a number of protections to bank customers and their deposits. The paper has however, discovered shortcomings in the law that need to be amended if bank deposits are to be accorded adequate protection in the event of liquidation or winding up. It has therefore recommended, among other things, the proportionate repayment of bank deposits in the event of liquidation, intensification of the work of bank examiners, and increased penal sanctions on bank directors and senior management staff whose actions cause bank failure. The overall implication of the study is that when its recommendations are implemented there would be greater confidence and stability in the banking sector which would in turn boost economic growth in the country.

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Authors: Professor Ion RUSU

The current study examines the provisions of Law no. 151/2016 regarding the competences and concrete actions of the Romanian judicial authorities for the recognition and enforcement of a European protection order, sent for execution by a competent authority of another Member State. The novelty is the conducted examination, the critical opinions and de lege ferenda proposals. The paper is a continuation of other papers that relate to the complex activity of international judicial cooperation in criminal matters and the involvement of the Romanian legislator in transposing into the national law of the European legal instruments in the field. Given its structure and the way in which it has been designed, the paper can be useful to academics, practitioners in the field and to the Romanian legislator in terms of completion and modification of the legislative act under examination.

14

Authors: Lecturer Mashele RAPATSA

This article discusses trends in the worst forms of child labour. It also examines state’s legal responses designed to eradicate child economic exploitation. This is premised on the Constitution transformative ideal of accelerating social transformation and human development. The exploitative nature of the worst forms of child labour is amongst the most disconcerting aspects in social, educational and economic realities. Most repugnant forms include children being subjected to Commercial Sexual Exploitation, Children being Used to Commit Illicit Activities, bondage labour and other hazardous economic activities. Such activities often result in unalterable physical and psychological harm or even worse, threaten children’s lives. Thus, it is a human rights issue, which infringes children’s core rights such right to dignity, life, social security and freedom. Widespread anecdotal evidence suggests that no country in the world is immune from this scourge, and so is South Africa. Hence, the need to highlight the nature and extent of prevalence, and the efficacy of the rights-based legal instruments adopted against child economic exploitation. It is asserted that factors that proliferates child economic exploitation manifests in the form of primary factors (those with direct impact such as social deprivations, e.g. poverty) and secondary factors (those that relate with action or inaction of governments, e.g. corruption, lack of state capacity). It is argued that legal instruments will be of no effect lest these direct and indirect causes are not interrupted. Widespread awareness campaigns also remain indispensable in order to conscientise society regarding the urgency of the problem.

15

Authors: PhD. Driss BAKHOUYA

This article is interested in studying the impact of trade agreements on the quality of health services, and the statement of the role of the Ministry of Health to protect the quality of these services. The problems that arise in this study; how the application of GATT on trade in health, and services? This article also includes the impact of international trade agreements on the issue of attracting foreign investments in the field of health, and to clarify the government's ability to maintain the health and political, and the capacity of national health products to compete with foreign products. Different research methods were used in the study, including: analysis, synthesis, deduction, induction. However, the most used method was comparative considering the specifics of the subject under studying. The study ends by mentioning that although so far only a few countries where trade in health services has a major role, trading. However, there seems to be agreement that is wide enough, with respect to health services. Furthermore, Trade liberalization -or privatization - can may lead to the development of second-degree health care system.

16

Authors: Student Călin-Ioan RUS

This study aims to find a new perspective for interpretation in cases where the judgments of the international courts (in particular the European Court of Human Rights) are contradictory or create uncertainty, so that they cannot be effectively considered when judging. It is known that the national judge must take into account the judgments of the Strasbourg Court to prevent a possible condemnation of the Romanian state, but when the conventional block is not unitary, we need to find a benchmark that helps us correctly solve the case. We believe that, in these circumstances, relying on the principles of law is necessary, and the principle of trust in justice can be a new, determining factor, in choosing a concrete legal solution. In order to demonstrate the effectiveness this interpretation, a practical case will also be analysed, on the basis of which the implications of such a method can be highlighted. Moreover, the principle of trust in judgments could be used in other cases similar to the practical situation presented and could become a concrete way of interpretation in cases of case law overruling or case law uncertainties, so that the individual’s rights are not injured.

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Authors: Professor Marek ŠTEVČEK; PhD. student Marek IVANČO

This contribution offers a comprehensive analysis of the conception of civil procedure, all the way from the term itself through historical determinants, individual approaches and civil procedure in Europe up to the present. It discusses the need for the unified conception of civil procedure expressed in a consistent legislative form. The subsequent analysis of the specific institutes of the new civil procedural law in the Slovak Republic describes the correlation of Slovak civil procedure to the so-called social conception of civil procedure based on the codification of the Austrian Civil Procedure Code of 1895..

17

Authors: Senior lecturer Cyrille MONKAM

The study aims to analyze one of the apparent inconsistencies that are found in the employment law in Cameroon. The right of free competition is tantamount to a free market society especially in the era of globalization. It appears prima faciae that in Cameroon the lawmaker has limited this right in the area of employment law, the reason being the protection of employers’ businesses that constitute a source of tax income in the fragile economic environment and an opportunity for job seekers. However, a close look at the provisions of Labour code shows that the law does favour on the one hand the employee right to compete on condition not to constitute a threat on the business of his current or former employer. On the other hand, the employer has to compensate his employee in case of legal non-compete clause and cannot compel him to respect illicit contractual noncompete clauses. If one of the parties to the employment contract develops such an unscrupulous behaviour, he will feel the harshness of the law. This research reveals the wish of the Cameroon lawmaker to adapt its legislation to social and economic realities.

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Authors: PhD. Thomas OJONG

While the legislative framework on the adminitration of juvenile justice in Cameroon may currently be adequate and in compliance with the international conventions ratified by the State, the implementation of the national law should be the primary mechanism through which human rights are realized. Cameroon is usually said to be a State with good laws but poor implementation. With recourse to the normative and empirical methods, this article explores the provisions on the protection of juveniles in Cameroon criminal law and procedures through the lens of internationally recognized principles. It looks at the provisions as they are interpreted and applied by the Courts. The prospect being to invite the Government and all the stakeholders to embark on establishing the structures provided for and ensure effectiveness in the enforcement of juvenile justice in the country so as to overcome the current weaknesses that the system is experiencing.

9

Authors: Dr. Harsh PATHAK

With trade and commerce increasing rapidly between nations, there has been a significant rise in disputes, leading to an urgent need for an effective and unified dispute resolution system which can sufficiently settle disagreements/issues among parties in dispute and which has to be arrived at keeping in mind the differences in laws of every nation, hence, immensely increasing the scope of private international law, or conflict of laws as called by different nations. Such urgency led to many conventions, one of most important being The New York Convention of 1958 (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the UNCITRAL Model Law promulgated in 1985 and amended as recently as 2006 which has been the source for International Arbitration, the most widely used dispute resolution method for international commercial trade and transactions and many countries like India have also based their legislations on the rules of the UNCITRAL Model Law. Most European countries as well as India have ratified the New York Convention of 1958 (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) for the purposes of International trade and commercial transactions therefore opening the gateway for international commercial transactions to take place among such convention countries easier. Further, the judiciary of concerned countries has also affirmed such ratification and the applicability of the Model Law laid down

10

Authors: Assistant professor Diana Geanina IONAȘ

Based on the provisions of article 1169 of the Civil Code, the parties are free to conclude any contract; however, based on the principle of the mandatory force of contract, the parties are held to execute the contract as signed. According to article 1549 of the new Civil Code, in case the debtor fails to execute its obligations accordingly, the creditor is entitled to invoke one of the following remedies: execution by equivalent; foreclosure; rescission or termination of contract or the reduction of the debtor’s performance or the use of any other legal mean available in order to achieve his right2. Rescission can manifest under any of the two forms: judicial and extrajudicial. Extrajudicial rescission also has two forms: unilateral rescission and conventional rescission. Unilateral rescission operates based on the unilateral declaration of rescission. At first sight, the creditor’s possibility to terminate the contract by rescission presents some practical issues regarding the conditions when it can be invoked, the form of the declaration, its legal effects (namely the real possibility of reinstating the parties in their previous position) and the statute of limitation of the right to invoke rescission. All these aspects were subject to our analysis, thus attempting to find the practical solution for enforcing this highly anticipated solution in the new social-legal context.

10

Authors: Associate professor Armand KRASNIQI

The privatization process in Kosovo with all its difficulties, permanent dilemmas entered into the final phase. Despite a considerable number of SOEs privatized until now there has not been any study done by any governmental or non-governmental body that will reflect more comprehensively the performance and its effects in economy. This process until now had several complex problems, changes and political, social, legal interests. In retrospective the privatization process in Kosovo evaluated by academics and media is considered to be one of the most specific and complicated phenomenon for the transformation of social assets in individuals or private enterprises. Its complexity has derived from what is meant by "social ownership" and who has been in fact its official in the past and which the rights are given to working class in possess management and governance. On these bases the Kosovo Trust Agency (KTA) founded by UNMIK in 2002 and later the Privatization Agency of Kosovo (PAK) founded in 2008 by the institutions of Kosovo after the declaration of independence (2007) have continued with the privatization 15 years later after the dilemmas and institutional transformation and we can say that economy in Kosovo is in collapse. PAK with all its successes admits that the difficulties of this process never stop. At the moment PAK is not recognized by the Special Chamber of Supreme Court of Kosovo and also there are problems and gaps in the law on the liquidation of social enterprises assets. The legal basis of OVGJS and the execution of the law for the reorganization of specific enterprises and their assets by shortening and simplifying the deadlines because they are causing serious bottlenecks and unwanted delays of proceedings.

12

Authors: Assistant Professor Ioana-Minodora RUSU

In the present study we have examined the provisions of Directive 2012/13 / EU of the European Parliament and the Council on the right to information in criminal proceedings and a compared examination relating to the provisions of Romanian law regarding ensuring the right to information within the Romanian criminal proceedings. The innovations and the value of the work consist of the examination of the European legal instrument, the comparative examination and the critical opinions and the proposals of de lege ferenda. As recognized in the jurisprudence of the ECHR, the right to information of the person suspected or accused of committing a crime or arrested for committing a crime on the territory of another Member State is part of the right to a fair trial, being necessary its compliance throughout the criminal trial, on the territory of each Member State. At the same time the European legislative act establishes a general procedure that needs to be respected by each Member State, which entails the obligation for Member States to ensure at least the same rights as for the citizen or the conditions under which a national of another Member State is suspected, accused or arrested for the commission of a crime. This paper continues the research conducted in the field of International and European judicial cooperation in criminal matters, which have resulted in the publication of papers in well-known publishing houses in the country and abroad, in national and international specialized journals or conference proceedings. The work can be useful to both theorists and practitioners in the field of judicial cooperation in criminal matters regarding the rights of certain categories of people and to the Romanian or European legislator for amending and supplementing the legislation.

19

Authors: Senior lecturer Valeri Lesmont BAHOKEN

The preamble of the constitution of Cameroon enshrines the principle of assimilation of foreigners into nationals through the Family law. However in concrete terms, this constitutional provision is undermined (limited, hindered) by a number of political and sociological constraints. The foreigner faces limitations in enjoying the said rights as well as in creating them. It is therefore necessary to amend the Cameroonian legislation so that it complies fully with the exigencies (requirements, needs) of fundamental rights, the construction of the universal human being (man in general), who will be governed by the same rules everywhere.

22

Authors: Assistant lecturer Etienne KENTSA

This paper aims at analyzing the legal regime for the enforcement of fines and forfeiture measures as provided by the Rome Statute of the International Criminal Court (ICC). The institution of this category of penalties and measures is unprecedented in international criminal law and has as major ambition of ensuring reparations for victims. The success of the restorative justice system under the Statute is dependent on the efficiency of the enforcement of fines and forfeitures ordered by the Court. Such success is actually based on domestic legal systems. Analysis of enforcement mechanisms of fines and forfeitures shows that the assistance of State authorities is vital in the enforcement of ICC decisions. To ensure effective enforcement of fines and forfeiture, the Statute enshrines the application of national legislation; which implicitly requires States Parties otherwise to adopt appropriate legislation, at least to undertake the adaptation of existing legislation. The satisfaction of this substantial requirement enables the States Parties to serenely execute their major obligations in this area (the obligation to give effect to fines or forfeitures ordered by the Court and the obligation to protect the rights of bona fide third parties).

5

Authors: Associate professor Cătălin-Silviu SĂRARU

Competence related to public administration occurs when, in the presence of a given situation, the administrative authority enjoys no margin of freedom, being forced to act in a strictly determined by law. Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The article analyzes the conditions under which government can exercise discretionary power within the law.

7

Authors: Lecturer Ovidiu – Horia MAICAN

The Brexit referendum vote has mainly political implications and no direct legal effect. The article 50 of the Treaty on European Union allows member states to withdraw from the European Union in accordance with its own constitutional requirements. After the referendum is a period of two years from the british notice of intention to withdraw to negotiate terms of exit unless all the other member states agree to extend it. Article 50 put the balance of power firmly in the hands of the 27 other states more than the leaving state. After the time limit in article 50 is expiring, Europen Union in theory law ceases to apply in the United Kingdom. In the same time, separating European law from british national law will be an complicated process.

8

Authors: Mohsen DORRANI; Abbas TAGHVAEE

A question that most of jurists are faced with is, whether human blood is basically a property or not and is human the owner of his blood? Moreover, what is the difference between blood and other organs of the body from the viewpoint of ownership? If blood is a property, why human is not the owner? Unlike blood, there have been legal discussions on organ sale, where blood can be retrieved by the body while segregated organs are not retrievable by the body. Investigating various views about ownership of organs of the body, one can conclude that blood is a property owned by humans.

10

Authors: Associate professor Emilian CIONGARU

Since the accession of Romanian to the European Union, many unsolved problems related to the accountability and efficiency of the legal system and of the law enforcement bodies have been identified, a reason for which the European Commission justified the institution of a Mechanism for Cooperation and Verification as a political instrument for the monitoring and optimization of the progresses made by Romania to attain certain reference objectives specific to the field of reform of the legal system and the fight against corruption. This mechanism has been instituted to improve the functioning of the legislative, administrative and legal system and to repair the serious deficiencies in the fight against corruption. The goal of the mechanism for cooperation and verification was and is to ensure the adoption of those measures that may guarantee the Romanians and other member states that the administrative and judiciary decisions, standards and practices in Romania meet those of the European Union. The progresses made in the field of reform of the legal system and the fight against corruption will allow Romanian citizens and trading companies to enjoy their rights in quality of citizens of the European Union.

11

Authors: Dr. Hamidreza Rafiei FANOOD; Student Saeid AZOOGH

Regarding Human rights has been emphasized by governments through universal declaration human rights and its violations faced the global reaction in any case. From this perspective; the necessity of observing human rights against terrorism has been emphasized by many resolutions of the General Assembly, the Security Council and many regional resolutions. But, today especially after the September 11 events and America unilateral attacks by resorting to human rights and of course by considering the lack of international agreement on the norms, strategies and principles of human rights, the campaign against terrorism has started on the basis of its obligations, regardless to existing norms. So it would be said that today; the war against terrorism more than any other terrorist attacks threatens the security and human rights. However, human rights framework has never prevented effective and legitimate actions to the terrorist attacks. In other words; in the human right framework, there is no conflict with the campaign against terrorism, it emphasizes on identifying and fighting and even it guarantees the effectiveness of such a fight. As a result, Human rights violations at the expense of security, certainly associated with the destruction of both.

12

Authors: Ph.D. student Mihaela-Emilia MARICA

The increase in the number of atypical work contracts in the field of industry relationships, as part of a major European trend towards gaining more flexibility in the labour market, is significant and cannot be overlooked in most member countries of the European Union. This finding is corroborated by the recent surveys conducted across Europe, that reveal the prevalence of these flexible ways of organizing work, over the archetypal template of the individual work contract. However, this range of atypical contractual arrangements and the great number of versions and subcategories they include, are describing a number of negative features that seem to characterize these new forms of employment. Since the field of atypical employment is complex and we cannot analyse the incidence of these negative effects for all the atypical methods of employment, in the following article we will limit ourselves to explore the pressing issues related to the system of temporary work through work agencies. As we shall see, all aspects of the salary field, of health and safety at work and the level of insecurity and instability of labour through temporary work agency reveals a strong character associated with this kind of precarious employment.

12

Authors: Assistant professor Aboul Hassan Mojtahed SOLEIMANI; Ph.D. student Mohsen Emami GHASHLAGH

In legal systems, the intention of people in certainty of legal performance plays the main role and the contracts & transaction attributes to persons' intention as the general & public principle. The people by their intention establish obligation & undertakings for themselves and others in the frame of contracts & unilateral obligations, in the realm of law to obtain the commitment force for his/her intention that causes establishing the commitments and the responsibilities of the peoples. The volition is consisted of intention & consent elements for establishing the commitment, in other words each of these elements, intention and consent are efficient in the situation of legal act through canceling or lack of legal act influence. The quality of this effecting and performance guaranty of the lack of each main conditions in certainty of the volition in the field of contracts have been considered and the rule in the field of contracts has been clarified in civil code but in unilateral obligations, in respect of unilateral obligations, there are some ambiguities in the role and clarifying basic conditions which these ambiguities are the results of leaving unsaid the many regulations about unilateral obligations in civil code by the jurisprudents and the legislators. In this article creative intention in unilateral obligations to be surveyed and it would be a step for clarifying the opposed and agreed views.

14

Authors: Lecturer Aurel Octavian PASAT

This paper aims to highlight the fact that crime, including that committed in the customs sphere, has a certain structure, made up of acts of smuggling and the evasion of customs payments, combined offenses under art. 248 and 249 of the Criminal Code of the Republic of Moldova. In addition, by presenting statistical data reveal that crime has a certain way, a certain dynamic (increases or decreases stationary). State and dynamics of crime are two Subconcepts criminology. If the structure crime of known composition and configuration phenomenon in a certain unit of time and in a certain space, dynamics helps to develop more realistic assumptions on the causes that generate or facilitate crimes, some forecasts on its deployment in the future, and effective means of preventing and combating the phenomenon. In the study they were used various research methods, including: analysis, synthesis, deduction, induction. In the study are advanced some proposals to improve the legal framework incriminating in developing tools for identifying features of criminal-law of customs offenses under Moldovan law, which led to the submission of proposals to improve the text of the law to prevent and combat crime in the customs sphere.

15

Authors: Associate Professor Luminița DIMA

The working time is defined by the European Directive concerning certain aspects of the organisation of working time. The meaning of ‘working time’ and applicability of the Directive’s requirements was further clarified by the Court of Justice of the European Union in its case law, with respect to various situations such as: working time of the employees who perform work on call, working time of the foresters who are provided with tied accommodation within the range of forest within their purview and qualification of the time spent by workers when travelling from home to work. Over the past years such cases have been more often met in the employment relationships in Romania, especially as regards work on call and mobile employees. Since there are no specific legal provisions to clarify the legal regime applicable to such situations, whether and in which circumstances they represent working time and the corresponding rights and obligations of the respective employees, the study aims to analyse such situations from the perspective of the Romanian labour relations by comparing the European legislation and case law with the Romanian national legislation in view of finding some specific answers useful for the interpretation and application of the Romanian legislation in such specific cases.

15

Authors: Assistant professor Mohammad Ali Mahdavi SABET; Ph.D. student Sajjad MAZLOUMI

There has been many talks about the necessity of ethics in all affairs, especially medical affairs which deal with the lives of individuals and the society expects Medical Group to be abide by morals more than laws. This matter indicates on the fact that the society considers ethics as a stronger enforcement of the law and deplores a doctor who has ignored ethics in the medical profession. Thus, they blamed the doctor from ethical aspect more than deploring him from a legal aspect (civil or criminal liability). The legislator is also influenced by public in anticipation of responsibility (both criminal and civil) for doctors and imposes legal rules on this basis. The concept of this article has an extremely close relationship with three concepts of morality, professional ethics and law. Initially first two concepts will be defined and separated and then the relation between professional ethics and medical laws will be expressed. Then, the relation between two concepts of medical ethics and bioethics ethics will be evaluated. Two religion or secularism basis have been taken for medical rights and strengths and weaknesses of each are discussed and the approach of the Iranian legal system will also be mentioned with evaluation of controversial medical samples.

17

Authors: Professor Constanţa-Nicoleta BODEA; Associate professor Augustin PURNUŞ

Construction projects are characterized by risks and uncertainties mainly due to technical and economic complexity. Risk management is an important tool in making decisions involving the identification and reduction, avoidance or transfer risk and uncertainties consequences of events that occurs during project implementation. For this reason, the objective of the contract between the beneficiary and the contractor is the allocation of risk. The distribution of risk in contracts for the execution of construction works was and is an ongoing challenge faced by parties having a significant impact on the type of contract is used. On the one hand, the beneficiaries tend to transfer to the contractors as many of the project risks and uncertainties, on the other hand, the contractors look to exploit any weakness contract, so as to reduce their impact on the expected profit. One of the most important risks assumed by the contractor by signing the contract which is also increasingly common in the current economic situation is the reduced financial capacity to support the project. A purely legal or purely technical interpretation is not meant to describe the complexity of issues related to implementation of construction projects. For this reason the authors have adopted a multi-disciplinary approach, which includes the legal issues related to the nature of the contract, but also the financial and technical aspects of construction projects. The paper aims to analyze how special contract clauses can influence the implementation of construction projects and in particular the financial management of contractors. The authors propose a model for analyzing the impact of FIDIC contract conditions applied on a case study of five transport infrastructure projects.

18

Authors: PhD Habil, professor Tekla PAPP; Assistant professor Ádám AUER

At the development and to the comprehension of the regulation it is necessary to ascertain that in our view, the subject of the regulation is the operation of the company. The regulation regulates the problems arising specifically during the course of the operation of the company, as an „ex ante” tool and by the avoidance of that upon the cessation of the public company, any unjustified or inconcievable costs (social costs) should rise. As an example, there are the infamous earlier corporate scandals (Enron, Parmalat, Vivendi Universal), the infringements of which drew critical social (budget) costs, as they left behind unsettled creditors’ claims, plenty of workplaces got terminated, etc. To prevent this, one of the techniques is corporate governance, as it focuses on such mechanisms during the course of the operation of the company as direction and control. With this, the cessation of the company can presumably be avoided, as it is publicly acknowledged that the majority of corporate scandals descend from the faults of leadership, direction and control. Based on the above, we may ascertain that in our perception, under ’corporate governance’ it’s the legal facts or interests relevant in the course of the operation of the company what become regulated in terms of corporate law.

19

Authors: Ramona Elisabeta CÎRLIG

Over the last decades the international community turned its attention towards the impact that businesses have on human rights, and the role they can play in furthering human rights protection, in light of the lead role they play in globalization, and the increasingly vocal allegations of human rights violations directed against some multinationals. These developments triggered some action at the United Nations, and at the European Union level, and led to the development of international soft law in this area, moving slowly towards binding instruments. This paper explores the evolution of business and human rights, presents the current international non-binding instruments, as well as some states’ binding initiatives in this area, and highlights the tendency to move from soft law to hard law, to leave the realm of voluntary corporate responsibility for the one of pure accountability. In this context, several solutions are debated by scholars: from a binding treaty, or a series of narrower treaties focused on specific areas, to a Model Law which could be used by states to enact laws imposing obligations on businesses within their jurisdictions, or even adding human rights in the international investment agreements and making use of the international arbitration as an enforcement mechanism.

29

Authors: Assistant lecturer Joseph Emmanuel YAYI LIPEM

On the 21st of December 2015, the Cameroonian legislature adopted Law N° 2015/018 with the aim of modernizing the mechanisms put in place for the supervision of the commercial activity in this State. This modernization results in the establishment of tools aimed at eliminating situations which are detrimental to the contractual balance. The idea behind these provisions is to reinforce the clarity and integrity of consent when concluding the contract, while at the same time eliminating the abuses that have endured during the conclusion. However, the assessment of these measures reveals a diminished efficiency. These shortcomings are due to two reasons: the discrimination against the protection of victims of the imbalance according to the "consumer / professional" distinction made and the lack of instruments to restore the balance in the contractual relationship of the parties.