Juridical Tribune - Tribuna Juridica

7

Authors: Lecturer Arjana LLANO

There are many factors which influence the independence of the judiciary. In a decision making process, judges, at any rate, must be able to act independently of any direct or indirect restriction, improper influence, inducement, pressure, threatening or obstacle. The law should provide explicit punishment measures against anyone who tries to impose any of the above means upon the judges. Any judge should possess the inviolable freedom of judging impartially, by his/her consciousness and interpretation, and pursuant to law. However, this is often impossible for judges are frequently put under various pressures that should be avoided. I have employed theoretical and practical methods for the purposes of this article. In conclusion, the research results have shown a heavy infringement of the independence of the judiciary in our country. There is a quite frequent tendency to influence the judges’ decisions. Common violations of law and judicial independence, to a large extent, remain unnoticed and unpunished. A considerable number of judges think that such tendencies have no significant influence on the management of justice.

7

Authors: Associate professor PhD. Ioana Nely MILITARU Lecturer PhD. Ileana VOICA

The scientific paper is structured to highlight the issues that define the need to establish the Tribunal. Thus, the second instance of the Court of Justice or the General Court was created under the workload of the Court had become incompatible with the requirements of the proper administration of justice. Utility setting is highlighted Court and proven in the paper, by analyzing the composition, organization, functioning and jurisdiction of the Court. EU Court is the first step towards diversifying the EU jurisdiction. This has entailed the redistribution of previous skills held by the Court of Justice of the European Union by the Court, while safeguarding its power of review.

8

Authors: PhD Student Aulona HAXHIRAJ

The civil and political rights as protected under the Covenant from the core of human rights protection on the international plane. This paper seeks to demonstrate how this goal may be archieved. The genesis of the Covenant will be discussed in the context of the evolution of human rights law. Starting from the normative framework and its development after the adoption of the Universal Declaration of Human Rights the scope of the Covenant rights as well as the duties of the State parties will be discussed. The monitoring role of th Human Rights Committee as major element in the implementation process will be closely examined. The paper will be focused on the status of the State parties and the Status of the Covenant in domestic law. Also will specifically focus on the State reporting system and the individual complaint procedure be carefully selected case studies. In conclusion, will be discussed the legal consequences of violations of rights protected by the Covenant.

9

Authors: Lecturer PhD George GRUIA Eng. George Cristian GRUIA

The present article offers a series of scenarios which can appear as a result of different decisions that are being taken and applied by the Competition Council with implications in the national economy. The scope of the article is for best practices examples to be showcased in order for the procedures of competition law in business to be smoothened out. With this occasion, our aim is to offer a parallel with the Competition Law from Czech Republic and Singapore to have a better understanding of the differences but also its effects which could appear in the Romanian and international business environment once the decisions are being taken by the Council of Competition. Several scenarios are being conducted and analysed from the juridical-commercial perspective and certain recommendations are being formulated for a better development of European Law, in this case the international business law in the context of a broader framework in the European Union, but in Asian and Central American countries as well.

10

Authors: Assistant professor JUDr, PhD Jaromír KOŽIAK

Czech private law is currently undergoing a thorough transformation. This inclundes adoption of a brand new Corporations Act, which is to supersede the current Commercial Code. The new legislation introduces several new rules governing liability of company executive officers. One of these is business judgment rule. It should provide company executive officers with a certain level of protection against litigantion – if specific terms are met, it is presumed, that they carried out their responsibilities with proper care. I intend to demonstrate, that the czech business judgment rule is flawed, despite the fact that it draws from foreign examples and that this regulation, although seemingly groundbreaking, in fact changes nothing in examination of the decisions of the company executive officers in Czech Republic. The main goal of this article is therefore to analyze and criticize the business judgment rule in the new Czech legislation and to compare it to notable foreign legal systems. The methods used are inductive and deductive reasoning, author‘s own analysis of legal text, comparative method and compilation of available resources relating to the topic of the article.

11

Authors: PhD Student Urjana ÇURI

The insistence on the definition of environmental protection is an aspiration which has served as prerequisites to the implementation of human rights in a global economic crises. European Regional System has traditionally been focused on the protection of civil and political rights. In the wake of environmental risks that imply the violation of human rights, the emphasis has been placed more on the social, economic and cultural. Collective mechanisms to appeal to the United Nations and the European Court of Human Rights, gave a number of decisions on matters implicating environmental laws and policies. What is to be noted, is the evolution of the guarantees provided under the European Convention on Human Rights, which refers to a substantial understanding of environmental protection, and also including procedural aspects related to the protection of the right to life, privacy, property, information and effective means of appeal. This evolution has been launched by the growing need for states to take preventive measures and policies to the requirements for a balanced sustainable economic development, avoiding environmental risks that imply the violation of human rights. Proportionality in the protection of the interests in this respect creates a context for a fair trial, but also promotes an open and constructive dialogue between judges and lawmakers to protect the public interest.

13

Authors: PhD Student Valerijs JAKUŠEVS

The study is carried out within the boundaries of the research “Taxation policy of the Republic of Latvia within the context of the principle of equity”. The objective of the study is to prepare a theoretical basis for the successful implementation of the state taxation policy considering the presently widespread usage of electronic means of data processing, transfer and storage, as well as to develop the legislative principles of selfregulation for the fiscal legislation in order to prepare it for working with quantum physics-based data processing hardware. The study is based on the legislative practice of the Republic of Latvia, with special regard to the period of economic recovery following the economic recession of 2009-2012. The study relies on legal literature, judicial practice, state planning documents and the researches ordered by the government and carried out by private contractors, as well as on statistics. The data collection does not confine itself to the research of phenomena and the systematization of the new knowledge and the knowledge acquired before, but mostly uses the empiric scientific method – observations, surveys. The study also employs the theoretical scientific method by analyzing the aforementioned documents and literature and using these as a basis for developing the theory and suggesting hypotheses, as well as through scientific (conceptual) modeling. Relying on the acquired data, the author verifies the forecasting power in order to achieve the objective of the study.

15

Authors: Assistant professor François EDIMO

The present paper deals with the right to health in Cameroon as a foundamental rigth institueted by international laws.The ratification by Cameroon of those laws deals iyh the purpose of insuring good health to all cityzens. However, according to the analysis of texte laws and the critics of the socio -economic politic and cultural contexte in which this right implimented, does not allows this right to all.

16

Authors: PhD Student Katarzyna SOLECKA

The following paper focuses on the discussion on the two issues – the privatization as the transfer of ownership rights to the public wealth onto a private entity and the privatization of public tasks as the manifestation of the deviation of public law entities to perform tasks for the benefit of private entities. The two institutions cause a lot of interest. The two concepts are very often used as synonyms thus interfering with the proper perception of the changes carried out in the economy. The reasons for this state of affairs may be sought in at least two aspects, firstly, the all the action performed by the state regarding the “public” property are in the area of common interest. The more the disposition of the property – the forfeiting of the ownership right for the benefit of a private entity – tends to be “on the carpet”. Furthermore, the emotions are aroused when it comes to the public and private collaboration due to the fear of the allegation of corruption. On the other hand, the unawareness and improper understanding of the meaning of both concepts leads to the erroneous perception of the institutions which play a significant however different roles of each in the state. It should be emphasized that between the concepts of „privatization as the ownership transformation” and „privatization of public tasks” may not be put an equals sign. The political, economic and social changes taking place cause adequate changes to the public administration. Thus the roles and duties are also changed which manifests in e.g. enabling the engagement of the public sector in the cooperation with a private partner (as in private and public partnership for example). The aim of the paper is to indicate the elements defining the objective institutions, factors allowing to distinguish the regulations and primarily allowing to answer the question why the two concepts may not be treated as identical. To explain the aforementioned I shall use a few methods – firstly to explain the concept of “privatization”, “privatization of public tasks” I shall use the historical method. Then to indicate the possibility of the performance of the public tasks in the EU law I shall use the comparative method. The following method used to discuss the objective issue is the analytical method – the aim of the two regulation will be analyzed in order to clarify the inability to consider the privatization process as the model for public and private collaboration.

18

Authors: Lecturer PhD Mihai Cristian APOSTOLACHE Lecturer PhD Mihaela Adina APOSTOLACHE

The present study proposes to identify part of the problems that appeared in administrative practice and to offer possible solutions or interpretations. The identified problems, generated by numerous changes in society, oblige the lawmaker to adapt the legislations so that the social values find the needed defense through law, but also in other normative documents. State practice in general and administrative practice especially have highlighted that an ambiguous stipulations can lead in many situations, to divers interpretations or institutional blockages. Also, administrative lacunas create serious difficulties, especially in the domain of local public administration, in the activity of authorities and institutions of local level. It is thus imposed to find viable solutions in concordance with society development, in permanent state of change.

21

Authors: Lecturer SH. M. Hum. TAUFIQURRAHMAN

Regulatory on the Corporate Social Responsibility (CSR) by mandatory in Indonesia as stipulated in Article 74 of Law No. 40/2007 on the Limited Liability Company (hereafter the Company Law) raises a contradiction. Those who agree argue that the company is not solely for profit, but more than that are participating in social issues and the preservation of the environment within the framework of sustainable development. Conversely, those who disagree view that social issues and the environment are the full responsibility of state. The involvement of a corporation in social and environmental activities is voluntary. Verdict of the Indonesian Constitutional Court in case no. 53/PUU-VI / / 2008 dated 13 April 2009 which rejected a requesting of material test of the Article 74 paragraph (1), (2) and (3) of the Company Law confirms the existence of the CSR by mandatory in international trade traffic today. The analytical results indicates that mandatory CSR regulation in the Company Law is not a form of a state intervention to the private activities. In addition, the arrangement is not contrary to the principles of free trade within the framework of the General Agreement on Tariffs and Trade (GATT) / World Trade Organization (WTO).

28

Authors: Assistant professor PhD Hervé Magloire MONEBOULOU MINKADA

The title of this contribution concerns the sovereignty of OHADA’s States as a solution or a problem of juridical integration. In our analysis, we consider that the States of the OHADA’s area are the main actors of this integration. In fact, the States express their sovereignty towards organs and tools of OHADA. In one hand, the way States express their sovereignty enable to have the same law amongst OHADA’s States. In another hand, by allowing any State to have his own criminal law (as far as sanctions are concerned) the aim of integration (unification) has been jeopardized. The solution of this problem is to have the same penal approach.

5

Authors: Assistant professor Mihaela ROTARU

Taking into consideration the impending entry into force of the new Criminal Code, we have thought the analysis of the material element of the offense of injury to the fetus to be necessary because the Criminal Code in force does not contain a similar regulation, whose passive subject to be the fetus. Because we do not have rules of the Court in this field yet we have tried to give possible examples in order to explain the theoretical aspects presented in the study.

9

Authors: Professor Ph.D. José João ABRANTES

A “welfare State” is a concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a good life. The general term may cover a variety of forms of economic and social organization. This article examines the concept of welfare state in the context of legislation adopted in recent years in Portugal that wants to "provide greater flexibility" of the labour market. This article discusses the crisis and the future of the Social State that is also, according to my view, an act of citizenship, a way of expressing our concern with the actual status of the welfare State.

11

Authors: Lecturer Ph.D. Ovidiu Horia MAICAN

The public sector, represented mainly by public enterprises, is important because it provides the link between the private and public interests. The state support for public enterprises and trade monopolies may create discrimination between them and private companies. Because of the importance of this issue, it has been regulated at Community level.

12

Authors: Ph.D. Marieta SAFTA

The complexity and dynamics of political life leads to developments and reconsiderations in terms of classical theories of constitutional law. Such a process occurs also in the case of separation of powers. Many factors have a bearing on how this theory is currently translated into practice, which requires additional perspectives of analysis in order to develop improved models of cooperation and balance of powers, according to new political realities. This study aims at examining the principle of separation and balance of powers in terms of mutual respect and loyal cooperation between institutions, or, in a broader sense, of constitutional loyalty, an intrinsic value-principle of all constitutions, without which no fundamental law, no matter of how democratic it might be, could function properly2 . Based on examination of concrete cases drawn from the case-law of the Constitutional Court of Romania, the study demonstrates that, in lack of constitutional loyalty, the objective pursued by enshrining the principle of separation of powers cannot be achieved effectively, i.e. compliance of public authorities and political actors with constitutional provisions is purely formal and the alleged collaboration between them is a "dialogue of the deaf" at the expense of democracy. The seriousness of the consequences of this type of behaviour requires identification of remedies. What are the limits and what solutions can be identified in this regard are questions that also we aim to answer.

20

Authors: Associate Professor Ph.D. Silvia Lucia CRISTEA Student Nicoleta Cristina IFRIM

The article presents parallel legislation in Romania and Republic of Moldova, in the matter of Limited Liability Company (LLC) Ltd, aiming to extract similarities and differences to draw reliable conclusions regarding the advantages of setting up this type of company in the two countries.

5

Authors: Assistant professor Mihaela ROTARU

The opportunity of the analysis of how the offense of illegal performing of the abortion was regulated over time in terms of Romanian criminal law lies in the fact that the offense in question is found with another name in the new Criminal Code, whose entry into force is imminent, and in order to fully understand the evolution of the new provisions it is important to know how the fact in question was criminalized in various stages of social development.

6

Authors: Lecturer Ph.D. Gheorghe DIACONU

The repressive reaction involves, as any human action, a certain finality. As the punishment’s essence is the suffering, then, in the course of time it has been arisen the question regarding the goal for which the society utilizes the suffering and for what the society punishes. According to the classic penal doctrine that bases on the idea of retribution, the repressive reaction was limited to a simple revenge and it didn’t existed any concern in order to influence the doer’s future behaviour. In the positivist conception, the punishment’s purpose was to shelter the society against the offender’s new attacks. Going up to an extreme point with this idea, the positivists equated the punishment with the curative treatment at which the patients in the hospitals were submitted and which it was adequate to each category of offender. For the positivists, the penal sanction, it was meant to combat the organic or the psychological anomalies or the dysfunctions of the social environment that have influenced the offender and that determined him to commit antisocial deeds. In the modern vision, the punishment cannot have a goal on its own and that is to answer to bad with bad because it doesn’t come from an abstract desire for revenge, but from a concrete necessity of hindering the repetition of the antisocial deeds and of defending the fundamental social values.

10

Authors: Ph.D. student Magdalena CATARGIU

In the context of the development and omnipresence, in Europe, of the non-profit sector and due to the diversification of the legal entities that are involved in the configuration of the third sector, an legal analysis of the foundation of banking origins, is very appealing. Throughout this study we aim to point out key moments in the evolution of this particular figure, mainly in the Italian legislation. Nevertheless, we intend to identify the legal nature of the foundation of banking origins in order to draw a line between banking and philanthropic activities.

12

Authors: Lecturer Ph.D. Ana-Maria LUPULESCU

The new Civil Code introduces several important changes and clarifications regarding the ownership right in general, including in the matter of the ways of acquiring private ownership. Among the ways of acquiring the private ownership right, the accession gets in the new Civil Code a legal regulation which is much more precise and better systematized, especially in relation to the artificial immovable accession, the legislator thus responding to practical needs, as they have been raised in the jurisprudence, but also to controversial issues outlined in the juridical doctrine. This paper aims to conduct a comparative analysis, which is necessary to both the analyst in law and the practitioner, between the old regulation contained in the Civil Code of 1864 and the current regulation provided by the new Civil Code in the field of immovable accession, with special attention to artificial immovable accession, due to its practical incidence

13

Authors: Associate Professor Sergiu CORNEA Associate Professor Valentina CORNEA

The overview image of the public-private partnership is represented by cooperation between the public and private actors to carry out the activities of public interest, cooperation based on the capacities of each partner to allocate properly the resources, risks and benefits. The main elements of the institutional framework are established by the national legislation. The traditional domains for the development of the partnerships are necessary at the national level and for infrastructure. The increasing tendency toward decentralization of the provision of services introduces a lot of publicprivate opportunities like health, education and other social services in the non-traditional areas, as well. The study analysis presents the idea of partnership as a means of solving the problem of more and more limited resources which are at the disposal of public administration. The quality of legal framework and government policies for the development of partnerships gives to this way of cooperation, either the quality of strategy in the public policies, which purpose is to obtain greater benefits by combining the resources of those two sectors, or the limited solution to the re-launch of the economy and to meet the general interest.

15

Authors: Assistant professor Cătălina Georgeta MATEI Assistant professor Roxana Anca ADAM

The concession of public services without the concession of the related public works was viewed as an exception. The public services contract was considered to rank first among the administrative contracts. The European Court of Justice ruled that establishing of the nature of a contract – whether it is a public works contract or a public contract of a different nature – is made by identifying the main purpose of the contract that determines the applicable directive, including situations where the contract has elements regarding the concession of public works as well as other types of public contracts. Also, the concept of concession used in relation to both concession and PPP was deemed in Romania as a source of confusion and ambiguity regarding the confidence of both the public and private partner within the context of project development

19

Authors: Lecturer Artan SPAHIU

In recent years, globalization has brought the spirit of breaking down cultural and social barriers between people and particularly has accelerated communication and economic cooperation between states. In this context, legal issues regulating these relations can not remain within national frameworks but have received more and more an international prospective. A clear example of this context is the international commercial arbitration. The great increase of the international trade and companies investment in foreign countries is associated with the tendency to transform the international commercial arbitration into a mechanism used increasingly to settle disputes arising from these relationships. Through this paper, highlighting the main features of international commercial arbitration will be presented a comparative overview between international legal framework and domestic provisions of the Albanian legislation, governing the arbitration proceedings. In this way, will be presented the problematic issues which are addressed by the domestic legal framework in this area, as well as the necessity for eventual changes. Adoption and implementation of legal instruments, which provide contemporary improvements of arbitration institute, in accordance with the international legal framework, will be a good service to the integration process of the Albanian economy

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Authors: Assistant Professor Ph.D. Hervé Magloire MONEBOULOU MINKADA

The following paper deals with the special criminal court and the principles of the criminal justice. We compare the law of 1961 and 2011, which create these courts. In fact, we appreciate if these courts respect the general principles of the criminal justice in Cameroon. The aim is to have the whole knowledge as far as special criminal courts are concerned and to purpose the manner to improve the 2011 court.

6

Authors: Assistant Professor Mihaela ROTARU

Legal rules are dynamic, meaning that they change depending on the evolution of the society at a certain time, in order to successfully meet the needs of regulation of social relations. The Criminal Code is no exception to this rule. Insult and slander have been decriminalized by the Law no. 278/2006, a situation which has led to changing legal content of other crimes, such as outrage, referred to in Art. 239 Criminal Code, by repealing its basic variant, relative to insult and slander. Instead, at the offense of abusive behavior, referred to in Art. 250 Criminal Code, the basic variant, represented by ,,the use of offensive language”, remained in force.

10

Authors: Professor Ph.D. Anca-Lelia LORINCZ

Aiming to ensure the celerity of the Romanian criminal trial, the legislative changes of the present Code of Criminal Procedure through Law no. 202/2010 have impacted also the matter of appeals, leading to fewer degrees of jurisdiction in most criminal cases. The actual Romanian Code of Criminal Procedure governs, as a general rule, the triple level of jurisdiction in criminal matters, dedicating two ordinary means of attack: the appeal and the recourse; consequently to the legislative changes of the present Code of Criminal Procedure (through Law no.202/2010), only the cases that are first trialed in a court can still undergo both ordinary means of attack. Also, Law no.135/2010 regarding the new Code of Criminal Procedure brings changes with regard to ordinary means of attack, and, implicitly, with regard to the levels of jurisdiction. Thus, with the purpose of ensuring the celerity of the criminal trial and the acceleration of the settlement of the criminal cases, under the circumstances in which there will be an increase of guarantees in the criminal prosecution phase and in the first instance trial, in the matter of means of attack the new code stipulates the ordinary means of attack of appeal, fully devolutive. Regarding the recourse, this will become an extraordinary means of attack (under the name of recourse in cassation), exercised only in exceptional cases and only for reasons of illegality.

20

Authors: Ph. D. Marieta SAFTA

This study examines - from a dual perspective - historical and teleological, the constitutional provisions that enshrine the presumption of lawful acquirement of assets, including the development and interpretation thereof in the case-law of the Constitutional Court, in order to create a framework for analysis of Law no. 63/2012 amending and supplementing the Criminal Code and Law no. 286/2009 on the Criminal Code, a law that establishes the measure of extended confiscation, expression of international regulatory concerns in this area.

8

Authors: Assistant Ph.D. Candidate Ştefania DUMITRACHE

Among the various forms of legal liability there are many points of contact reflected in their common goal - the encouragement of active members of society. Starting from the statement - the independent nature of the various forms of legal liability does not mean they are excluded - in what follows, given the legal autonomy of spheres of social relations protected by various laws, we will consider disciplinary overlapping with other forms of legal liability - criminal liability. Of course, this is possible only if the act committed by the employee is both disciplinary and criminal. This form of accumulation are possible without violating the principle of non bis in idem that since each of the envisaged legal rules protect different social relations. In addition of this applying the same principle prohibits two or more same kind sanctions for an unlawful action

10

Authors: Candidate Ph.D. Radu Ştefan PĂTRU

Law no. 40/2011 modifying and supplementing the Labour Code and the Law on Social Dialogue no. 62/2011 have significantly modified the legislative framework regulating the labour conditions. Starting from this year, the architecture of the labour law fundamental institutions has been subjected to changes that would materialize in new approach directions both for employers and employees as well as for the law courts that will have to interpret the new legal dispositions in an equitable manner. Among the essential amendments brought to the abovementioned law, we will focus on those related to the modifications and applicability of employees' disciplinary liability.

13

Authors: Lecturer Ph.D. Felicia MAXIM

The international responsibility of states has been a topic that has attracted the attention of numerous entities existing at international and regional level, but also of education institutions involved in codifying international law. When it came to the problem of codification at international or regional law, the responsibility of the states was especially considered a topic of great importance and introduced in the established working programs. Thus, it is has been started off from the international responsibility of the states for damage caused on their territory to foreign persons of their property, a problem subsequently abandoned, but somehow reconsidered as part of diplomatic protection and the study has come to the responsibility of the states for internationally wrongful acts, separating from it the responsibility of the states for prejudicial consequences resulted from activities that are not banned by international law. The experts involved in the preparation of the draft regarding "The Responsibility of the States for Internationally Wrongful Acts" have identified in the practice of the states and in international case law essential aspects that need to be considered in codifying the indicated field. Considering that satisfying the claims of a prejudiced state is covered, special heed has been paid to the forms of reparation of prejudice, namely: restitution in kind (restitutio in integrum), by equivalent (damages) and satisfaction.

24

Authors: Assistant Professor, PhD candidate Alexandru BULEARCĂ

From 1 November 2009 came into force Emergency Ordinance No. 113/2009, which introduced into Romanian legislation the Directive on Payment Services (PSD "Payment Services Directive") applicable in the European Union (EU) and European Economic Space (EES). These regulations are intended transparency of banking information for payment services to create a single legal framework at the European Union and European Economic Space in the field of payment services and the protection of consumers of these services. The regulations of the Directive on payment services are applied to all payment transactions in the currency of each Member State of the European Union and European Economic Space, provided that the two banks - the payer's bank and the beneficiary's bank – are located in a Member State. Payment services coming under the impact of new legislation are: payment by bill of exchange, electronic payments, payments by credit card, payments made by direct debit, cash transactions, provided the payment and transfer of funds (the giving of money) under conditions of transparency and information to users and to comply with a set of laws and obligations on the part of all those involved in this operation.