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

Si


Societatea de Științe Juridice și Administrative



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


Frecventa aparitiei:
2 numere / an

Contact:
office@TribunaJuridica.eu

PARTENERI:

CONFERINŢA INTERNAŢIONALĂ
PERSPECTIVE ALE DREPTULUI AFACERILOR ÎN MILENIUL AL TREILEA
www.businesslawconference.ro

INTERNATIONAL CONFERENCE
GLOBAL ECONOMICS AND GOVERNANCE
www.gegresearch.org

Editura ASE
www.editura.ase.ro

JURIDICE.ro
www.juridice.ro
abonamente
 

STUDIES AND COMMENTS
Articolul 1 - Iceland, the EFTA Court and the indexation of credit to inflation: operating in nature ex-post but need to calculate and disclose ex-ante. A law of contradiction?

Abstract

Indexation of credit to inflation (ex-post) is a unique legal practice in Iceland based on valorism theory on money vs. nominalism. Two rulings issued in 2014 by the EFTA Court try to clarify the legality and fairness of this particular price-variation clause under the European Economic Area consumer credit acquis. The study summarizes the rulings and analyses critically the interpretation provided by the court. It argues that the judgements defy the logic of non-contradiction since indexation of credit proves to be an impossible oxymoron under EU/EEA law. The results are confusing. On one hand, cost of credit and usury practices tend to fall outside the scope of European harmonisation (provided disclosure obligation of cost of credit and transparency ex-ante are respected). A fairness control is thus dependent on national and case circumstances to be assessed by domestic courts. On the other hand, European rules also impose with no derogations that the cost of indexation of credit to inflation is disclosed in a transparent way and calculated ex-ante. The paradox is there. Since indexation of credit operates ex-post on the basis of real inflation, it is impossible to disclose ex-ante in a transparent way. The findings of the study help to understand the situation of impasse in Iceland. Without a clear interpretation from the EFTA Court, the saga has continued at national level and will probably head for a second round of assessment at European level.
Keywords: EFTA Court; Iceland; indexation of credit; fairness; information and transparency; consumer protection.
JEL Classification: K33, K41


Articolul 2 - Juridical perspectives on the increase of share capital of companies regulated by Law no. 31 of 1990; the entries registered within the trade registry regarding the increase of foreign participation in the share capital

Abstract

The present study shall analyze the means and procedures employed for the increase of the share capital of the companies regulated by Law 31 of 1990. The analysis will reflect the means of capital increase and the nature of the potential financing sources of the company in relation to each of these means. Since foreign investments are some of the most eloquent engines of economic dynamics of the host state, the study intends to relate the increase of share capital to the foreign investment in the share capital. From this perspective, the study is to analyze the segment of entries concerning the increase of share capital registered in the trade registry following the foreign investment in the capital, as per number as well as per amount, revealing the monthly number and value between 2011-2015, revealing the number of entries as well as their amount, respectively the amount by which the share capital was increased, viewed on a monthly basis but also per each of the years analyzed. The study alos seeks to analyze the same segment of entries, but this time at the level of county Cluj, similarly to the criteria of analysis used for the national level. Thus, there were brought under analyze the level of entries on capital increase registered in the trade registry following foreign investments in share capital, at national level but also particularly for Cluj county. This analysis will enable to draw conclusions regarding the correlations between the two segments, from the point of view of the dynamics of foreign participation to the capital increase.
Keywords: share capital increase, trade registry, registration of new entries, foreign direct investments.

JEL Classification: M21, K22


Articolul 3 - Theoretical and jurisprudential considerations on res judicata authority

Abstract

One of the effects of judgment, established by both the old and the current Code of Civil Procedure, is res judicata authority. This prevents retrial of a dispute on the basis of the triple identity of parties, object and cause. The paper will analyse some of its aspects from the perspective of civil procedural legislation, ECHR case law and national jurisprudence.
Keywords: judgement, effects of res judicata, exception from res judicata authority, identity of parties, object and cause, exception from res judicata authority.
JEL Classification: K40, K41


Articolul 4 - The enforcement of fines and forfeiture measures ordered by the International Criminal Court: the critical role of States

Abstract

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).
Keywords: Fine, forfeiture, forfeiture order, lex fori, Enforcement measures, cooperation.
JEL Classification: K33


Articolul 5 - International standardization of arbitration as an alternate dispute resolution forum and its acceptance in India

Abstract

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
Keywords: Arbitration, Dispute, Contracts, Legal Strategy, Agreement, Cross Border Transactions, Award, Damages, International Commercial Arbitration, Dispute Resolution, India.
JEL Classification: K22, K33


Articolul 6 - The unilateral declaration of rescission - an extrajudicial mean of terminating a contract

Abstract

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.
Keywords: remedy, rescission, unilateral act, form, effects, contract
JEL Classification: K12



Articolul 7 - Working time of employees posted on a business trip

Abstract

Posting of workers to a Member State of the European Union under the law of the Slovak Republic may be realised by the institute of business trip, the temporary assignment of employees to another employer, or agreed place of work abroad. Using the institution of the business trip opens up many application problems. The author is in his paper focused on selected application problems of the business trip, relating to working time, particularly when considering working time on a business trip as well as continuous rest after returning from a business trip, respectively at the end performed work.
Keywords: business trip, working time, daily rest, Labour Code, Act on Travel Allowances, Directive 2003/88/EC.
JEL Classification: K31



Articolul 8 - Values and ethical principles for practicing as magistrate/ legal advisor out of the perspective of the codes and national and international statements of principles

Abstract

The coordinating and regulating role of the moral values, of the Deontological Code in practicing the magistrate/ legal advisor position is analysed in this article, so that their decisions correspond the universal imperative of practical accomplishment of justice, implicitly to the audience’s expectations with regard to the efficiency and efficacy of the services delivered by the institutions in the judicial system. The subject is of obvious actuality, fact which results in the existence of a relevant number of cases of violation, deforming of the ethical principles, of the specific deontological norms for the legal advisors, especially for the magistrates, which occur in performing the act of justice. The author highlights through examples, the harmful effects of some magistrates’ side-slipping from the ethical principles (Independence, Impartiality, Integrity) stipulated in the most important deontological codes, statements of principles or national and international conventions. The logical conclusion, resulting from the analyses, aims to perfection the judicial system, the moral part of the legal higher education, of the magistrates’ continuous training and assessment.
Keywords: ethical values, The Bangalore Principles, Independence, Impartiality, Integrity, judicial decision.
JEL Classification: K40, K42



 

Articolul 9 -The right to information within the criminal proceedings in the European Union. Comparative examination. Critical opinions

Abstract

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.
Keywords: person suspect, accused or arrested in another Member State, the Romanian law, the European legal instrument.
JEL Classification: K14, K33


 

Articolul 10 - The juridical status of the service firearm ownership and utilization procedure and the armament and munitions operations within the Romanian penitentiary administrative system

Abstract

The general activity of the special status civil servants from within the Romanian penitentiary administration system, involves, due to the nature of the work-related duties, particular risks and tasks, therefore this activity cannot be conducted without ensuring a distinct and efficient juridical regime, ensuring the protection and safeguarding the fundamental rights of people deprived of their freedom. This paper aims to present the adoption of the current juridical regime of the procedure of owning and using the work-supplied weapons and the weapons and ammunition operations in the Romanian prison system, the no. 23/2016 Law regarding the possession and use of the work-supplied weapons and the weapons and munitions operations in the penitentiary administrative system, namely the use of weapons, munitions and military devices, by the civil servants with a special status from the penitentiary administrative system, being allowed only in the specially designed, approved and authorized shooting ranges, for this purpose; the situations in which the civil servants from the penitentiary administrative system, carrying lethal weapons, in the line of duty, are entitled to use their lethal or nonlethal weapon, depending on the case, only after the official warning has been made, as well as the situations in which they can use their weapons, without warning, if there is no time for this: in case of self-defense or in case of a state of emergency.
Keywords: particular regime; special legal regulation; possession; use; weapons; penitentiary system.
JEL Classification: K14, K33, K40


 

Articolul 11 - Considerations on the public services in the XXI century

Abstract

The article analyzes from a comparative law perspective the notion of public service, underlining that outlines the administrative framework applicable legal regime. Public administration currently is defined both by its attribute of organization and execution of the law by setting specific binding behavior and by its attribute to meet social requirements through the provision of services under administrative law. The article analyzes the characteristics and principles underlying public service organization in the XXI century and modern public service categories, underscoring the blurring of the classical distinction now between administrative public services, and industrial and commercial services.
Keywords: public service, administrative public service, industrial and commercial public services, outsourcing of public activities, administrative law.
JEL Classification: K23


 

Articolul 12 - The condition of foreigners in the family law of Cameroon

Abstract

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.
Keywords: foreigner; national; constitution; infra-constitutional norms; public order; enjoyment of rights; creation of rights.
JEL Classification: K36


 

Articolul 13 - The issue of the liquidation process of social enterprises during privatization process in Kosovo

Abstract

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.
Keywords: law, privatization, transformation, privatization agency.
JEL Classification: K22, K23


 

 

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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)








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