Revista editata de:
Editura ASE
Departamentul de Drept al Academiei de Studii Economice din Bucuresti

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Societatea de Științe Juridice și Administrative



ISSN: 2247-7195
e-ISSN 2248 – 0382
ISSN-L 2247 – 7195


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2 numere / an

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CONFERINŢA INTERNAŢIONALĂ
PERSPECTIVE ALE DREPTULUI AFACERILOR ÎN MILENIUL AL TREILEA
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Article 1 - The conciliation of collective labour conflicts

Abstract

The present article envisages presenting the conciliation as a resolution procedure for the conflicts of interests/collective labour conflicts. The conciliation was stipulated as a resolution procedure for the conflicts of interests/collective labour conflicts even from the first acts that regulated this domain, being foreseen as a mandatory phase within the process of solving this type of conflicts. The subject of conciliation was approached before within the doctrine, from this juridical institution development point of view, the used research methods being the observation and the comparative analysis. The legislator adapted the procedure for the resolution of conflicts of interests/ collective labour conflicts in accordance with the social and economic development of the labour relations and identified other means of resolution, such as the mediation, the arbitrage or the strike, when the conciliation didn’t lead to the end of the conflict. The present paper aims is to realize an assessment over the historical development of the labour conflicts conciliation and to draw up a study on the statistical data concerning these conflicts. The study may be used within the research activity, its contribution being set up by the updated presentation of the statistical data and on the legislation within the field of labour conflicts conciliation.
Key-words: the legal framework, amiable resolution procedure, mediation, arbitrage, strike.
JEL Classification: K31


Article 2 - Corrections and completions that are imposed to constitutional dispositions and normative documents in the matter of local public administrations in Romania

Abstract

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.
Key-words: legislation, local public administration, controversy, administrative practice, solutions.

JEL Classification: K23


Article 3 - Reform of the United Kingdom judicial system

Abstract

The separation of powers in a state is an essential characteristic of every democratic country, a principle present in many constitutions, most notably that of the United States.
The concept is imperfectly fulfilled in the United Kingdom, given that the executive (Ministers) form part of the legislature and that part of the judiciary (Law Lords) sit in the legislature.
As a result, it was necessary to remove the constitutional anomaly that the highest court of appeal in the United Kingdom was situated within one of the chambers of Parliament.
Key-words: United Kingdom, Supreme Court, House of Lords, Privy Council, constitutional reform..
JEL Classification: K33, K40


Article 4 - Regulatory on the corporate social responsibility in the context of sustainable development by mandatory in the world trade organization law perspective (case study in Indonesia)

Abstract

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).
Key-words: Corporate Social Responsibility, Environment and Utility.
JEL Classification: K22, K23


Article 5 - Regard sceptique sur le droit a la sante au Cameroun

Abstract

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.
Key-words: right of health, pollution, droit to be alive, care, illness.
JEL Classification:K32


Article 6 - L’expression de la souveraineté des Etats membres de l’OHADA (l’Organisation pour l’Harmonisation en Afrique du Droit des Affaires): une solution-problème a l’intégration juridique

Abstract

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.
Key-words: OHADA, sovereignty, juridical integration, criminal law, business law.
JEL Classification: K23, K33



Article 7 - Independence of the judiciary

Abstract

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.
Key-words: independence, judiciary, law, justice.
JEL Classification: K40



Article 8 - Enforcement of State aid law at national level. The relationship between national courts and the European Commission

Abstract

The control of state aid is an unique feature of competition policy in the European Union. This paper sets out to show the balance between Member States and the European Union in the area of state aid policy.
After a brief overview of the principles underlying the enforcement of state aid law in the Member States, we will describe the basic principles underlying the division of responsibilities between the Commission and national courts in state aids matters, then we will discuss the two main responsibilities facing national courts – protecting competitors against unlawful aid and ensuring effective recovery of illegal and incompatible aid.
Key-words: European Union, State aid, national courts, European Commission.
JEL Classification: K23



Articolul 9 - Business judgement rule in Czech Corporations Act

Abstract

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..
Key-words: Business judgment, Company executive oficer, corporate body, company, corporation, Corporate law.
JEL Classification: K22, K40


Article 10 - Corruption and compliance: preventive legislations and policies in international business projects

Abstract

This article seeks to provide an insight on the international phenomenon of corruption, dealing with its existence, and whether compliance is higher with Anti-Corruption laws or with corruption itself, resulting in anti-corruption laws being much less effective than the legislators intended it to be and the reasons for increasing demand worldwide for new governance standards and higher compliance controls and other effective anti-corruption laws and policies in light of rapid increase in corruption every year. This article further deals with the diagnosis and measures to deal with the cause of corruption – the short-comings in anti-corruption law – the reasons why corporations are willing to face continuing legal risks and adverse publicity but still indulge in corrupt practices and the extent of negative impact the prevailing levels of corruption ultimately have on international business and trade. Strict compliance controls are being introduced with increasing enforcement of anti-corruption laws internationally and nations have also started to focus on individual and corporate liability in cases of violation of anti-corruption laws, for both government and private organisations. In this context of far-reaching developments, whether European and South-east Asian Countries like India and International Business Organisations can act in ignorance or buck up and accept this trend, slowly and steadily moving towards a less corrupt nation and International business projects – if not towards a totally corruption free one, keeping in mind the growth of international trade and Commerce and its sustainability.
Key-words: Corruption, Corruption-Causes, Consequences and Measures , Corrupt practices International Business, International Business Projects, Anti-Corruption Laws, International Legislation, Indian Laws
JEL Classification: K14, K22, K33



Article 11 - The privatization of public tasks and ownership transformation in Poland – the outline of the issue

Abstract

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.
Key-words: privatization, public tasks, public-private partnership, public administration..
JEL Classification: K23



Article 12 - Freedom of expression

Abstract

In this paper "Freedom of expression" I’ ve tried to explain the close relationship between freedom right and other constitutional freedoms, which have a direct impact on values consolidation in a democratic society and giving possibilities for the public to be active in the decision making process. The researches are based in three directions: the doctrine of international low, in Albanian literature; in native and foreign legislation and also in jurisprudence of Albanians courts and the European Court of Human Rights. The theme dedicates a wide space freedom of expression in the context of public debate, thereby guaranteeing the public's right to know. Many cases of interference in freedom of expression, has been given special importance in legal terms. This intervention must have a legitimate purpose to protect more than one of the public interests. All of this work focuses on sharing the idea that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, receive and impart information and ideas through any media and regardless of frontiers.
Key-words: right, freedom of expression, media, information.
JEL Classification: K19



Article 13 - Selected aspects of proposed new EU general data protection legal framework and the Croatian perspective

Abstract

Proposed new EU general data protection legal framework profoundly affects a large number of day-to-day business operations of organizations processing personal data and calls for significant effort on their part toward the necessary legal-regulatory compliance. In this paper the author examines key legislative developments towards this new EU frame and impact for the Republic of Croatia as the youngest EU Member State. Following introductory overview, legal analysis of draft EU General Data Protection Regulation as proposed by the European Commission and recently adopted amendments by the European Parliament mainly focuses on selected solutions impacting national data protection supervisory authorities. This is complemented with examination of relevant sources of EU law, including the case law of the Court of Justice of the European Union. Assessment of results of this research is next made with respect to prospects of the data protection legal framework of the Republic of Croatia. The paper is concluded with the author’s critical overview of analyzed EU proposals impacting national data protection supervisory authorities in light of EU pivotal goals, and de lege ferenda proposals to timely address identified obstacles towards more adequate enforcement of data protection legislation in Croatia.
Key-words: right to personal data protection, independent supervisory authority, General Data Protection Regulation, Croatian Personal Data Protection Act.
JEL Classification: K20



Article 14 - Economic and labor rights in the European Union after Lisbon: an institutional approach

Abstract

Economic and labor rights belong to the core of business action, since they constitute the institutional framework for actors involved in business, employers and workers. Since the European integration is progressing, we may speak of a European environment for business, a common market in European legal terms, which became the main aim for the Communities since 1957. At the end of 2009, with the enforcement of the Lisbon Treaty amendments, important changes were brought in the fundamental rights protection in EU, mainly with the enactment of the EU Charter of Fundamental Rights. For a better understanding of the framework of economic and labor rights in EU, the traditional economic freedoms and provisions of the Charter will be examined in this paper in order to draw conclusions on the level of protection of such rights and the modifications that the Lisbon Treaty have brought in EU legal order with reference to economic and labor rights.
Key-words: economic freedoms, labor rights, Lisbon Treaty, opt-out protocol.
JEL Classification: K31, K33



Article 15 - Concept of environment, sustainable development and respect for human rights

Abstract

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.
Key-words: Environment, Sustainable Economic Development, Public interest, the rights of the individual.
JEL Classification: K32, K33



Article 16 - On the successful integration of the implemented principles into the fiscal legislation

Abstract

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 self-regulation 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.
Key-words: tax, law, justice, the principle of justice, taxation, fair taxation, wealth creation, a living wage, the effective tax.
JEL Classification: K34



Article 17 - Contract for award in free usage (commodatum) of a public property asset

Abstract

According to art. 136 para. (4) of the Constitution Revised Public property can be given free use of public institutions. Note that currently in Romania there is no framework law governing the award procedure for free use, rules of use of the asset, end use and the settlement of disputes. Article makes proposals for the regulation of some aspects of the content of the contract award free use of public property.
Key-words: public property, good, free use, public utility institution, administrative law.
JEL Classification: K23



Article 18 - European civil service. The principles of the legal framework in force

Abstract

The concept European civil service is being used in two ways, depending on specific context: In the broadest sense of the term, European civil service means the persons working for a European public institution and in the narrow sense of the term, it means only the European officials, who are not invested with public authority. European officials’ legal framework is governed by principles of law, guiding ideas for their overall activity and mandatory rules for the interpretation of any legal text adopted by an institution or European body. These principles are, on one hand, common with other branches of Community law in general (e.g. the principle of subsidiarity, the principle of equality, non-discrimination) and, on the other hand, specific principles of European civil service regulation (e.g. public competition principle and the principle of dispersion territorial). The paper demonstrates that the general principle of subsidiarity is strongly applied and that there is a dispute between the regulation based on the idea of legal status and/or the contractual status of civil service. There are legal restrictions and specific liabilities for the personel working within EU institutions and the paperwork makes some improvements propositions
Key-words: European civil service, European official, institutions of the European Union, the principle of subsidiarity
JEL Classification: K23, K33



Article 19 - Scenarios regarding the role of the Competition Council and its influence to the economic environment

Abstract

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.
Key-words: transparency, best practices, scenarios, competition.
JEL Classification: K23, K33



Article 20 - Aspects from European Court of Justice case-law on equal treatment as regards dismissal

Abstract

Equal treatment between women and men is a fundamental right, a general principle of EU law. In European Court of Justice case-law and in European law were treated different aspects of discrimination on grounds of sex. Principle of equal treatment between women and men applies to remuneration, access to employment, vocational training and promotion, and working conditions, but it is equally applied to dismissal. Among the issues covered by European law on equal treatment between women and men, in this article I will examine only the European Court of Justice case-law on dismissal.
Key-words: Dismissal, non-discrimination, equal opportunities, European law, labour law.
JEL Classification: K41, K42



Article 21 - Tribunal of the European Union

Abstract

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.
Key-words: Tribunal of the European Union, case law, the Treaty of Lisbon, competence.
JEL Classification: K33, K40



Article 22 - The associative forms in Romania following the new Civil Code, republished in 2011

Abstract

During time, the association has evolved as a form of socio-economic organisation in order to perform non-professional or, by case, professional activities. The legislative sources have emphasized, in time, the variety of the ways of manifestation of the association among different law subjects – physical and/or legal persons. The new Civil Code (2009), republished in 2011, in force since the 1st October 2011, fundamented on the monist approach of regulation, as the common-law norm for all the domains that the letter and the spirit of its provisions refer to, regulates the contract of association, in chapter VII of the 5thBook; apart from the general norms applicable to all such contracts of association, the present code replaces the former civil society without legal personality with the present simple society and, also as a novelty element, transposes the regulation of the silent partnership from the former framework of the Commercial Code (1887, abrogated almost in totality) in the section 3 of the same chapter VII, the 5th Book of the code. The elements that are similar with the former regulation outline the continuity aspects in the conception of these juridical institutions in a modern approach that transposes aspects which were clarified by the jurisprudence or the legal doctrine.
Key-words: association, associate, right, liberty, simple society, associative forms, the silent partnership.
JEL Classification: K19, K22, K40



Article 23 - The Covenant on civil and political rights

Abstract

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.
Key-words: Civil rights, political rights, human rights, Covenant on civil and political rights.
JEL Classification: K33



 

Declaratie de etica si malpraxis
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Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)

Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)

Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)

Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)

Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)


Baza de date internationala recunoscuta pentru domeniul stiintelor juridice (conform Anexei 24 pct. 1 din Ordinul ministrului educatiei, cercetarii, tineretului si sportului nr. 6560/2012)








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