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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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PERSPECTIVE ALE DREPTULUI AFACERILOR ÎN MILENIUL AL TREILEA
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Volume 7, Issue 1, June 2017

Cuprins



Articolul 1 - State formation and recognition in international law

Rezumat

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.
Key-words:State recognition, Montevideo Convention, declarative theory,
constitutive theory, international law.

JEL Classification: K10, K33, K39


Articolul 2 - The strategic importance of international investments in the field of
mining and international law

Rezumat

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.
Key-words: foreign investment, mining, international treaties, national security

JEL Classification: K11, K23, K33


Articolul 3 - The principles of non-discrimination and equality of chances
in the Romanian and European law

Rezumat

The work starts from the legislative framework of the principles of nondiscrimination
and equality of chances between men and women in our country, presenting, at the same time, synthetically, the public authorities authorized with the application and control of the application of the law regarding the equality of chances. Given the obligation imposed by the European Directives of the E.U. member states, to modify or update the law so that all the European citizens would benefit of the same protection against discrimination, it is also presented a famous case study regarding the ethnic or religious discrimination – The Decision of the Paris Appeal Court of 19th June 2003. This cause demonstrates the good application by a French civil jurisdiction of the dispositions regarding the civil sanctions of the discriminations based on religious beliefs. However, at the level of the E.U. member states, in certain cases and fields, the legislative framework is not always enough to ensure the equality of chances, being necessary changes of mentality and behavior, as well as firm and varied political actions, in order to sensitize the involved public and institutions regarding the significance of the insurance of the application of the principles of non-discrimination and equality of chances.
Key-words: Non-discrimination, equality of chances, the ethnic and religious discrimination, diversity, conciliation of the professional and private life
JEL Classification: K10, K33


Articolul 4 - The right to social security in international documents

Rezumat

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.
Key-words: right to social security, responsibility of governments, international
relations, human rights.

JEL Classification: K10, K33


Articolul 5 - Are mediation clauses binding and mandatory?

Rezumat

This study analyses the legal force of mediation clauses in the common law systems and civil law systems with a main focus on the Romanian approach. First, the introductory section illustrates the paradox between the concept of binding and mandatory effect and the mediation mechanism, a voluntary manner to settle disputes. Notwithstanding, the possibility to coerce the parties to engage into a mediation, the voluntary character of the process is illustrated by the parties’ freedom to decide whether they settle or not. Second, the role of mediation clause is analysed and its advantages are briefly described. Third, the non-compliance of the prior mediation mechanism is presented, the starting point of the discussion being represented by the manner in which the parties drafted the mediation clause. A carefully drafted mediation clause, reflecting the parties’ consent, can determine a court or an arbitral tribunal to enforce such clause. Fourth, the study ends by mentioning the approach adopted by different national courts, emphasizing the Romanian legal perspective.
Key-words: mediation clause, mandatory, non-compliance, voluntary process.
JEL Classification: K12, K40, K41


Articolul 6 - Study on the role of identity-oriented actors in the Syrian crisis

Rezumat

Recent developments in Arab countries have provided new opportunities and possibilities for the transformation of the political climate, security and change the balance of power in the region. Since the beginning of 2011, the Middle East has witnessed major developments and serious changes. The main changes resulting from the Arab Spring in the Middle East can be "crisis development" in the region. Different approaches have been
presented on the reason of the crisis in the Middle East, especially political and security
developments in Syria. By 2011, signs of civil disobedience and political upheaval in the
Middle East have been observed on the agenda of planners. From 2011 onward, identity
components provided the context for civil disobedience radicalization and thus social
violence has been formed in the form of security policy of radicalized groups.
Key-words: security crisis of Middle East, the Arab Spring, Identity-Oriented Actors,
Cooperative Security, crisis of identity and legitimacy
JEL Classification: K33



Articolul 7 - Theoretical and practical considerations
regarding the right of retention

Rezumat

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.
Key-words: right of retention, guarantee, exception, abusive exercise
JEL Classification: K11, K40



Articolul 8 - The threat in Iran and United States of America criminal law

Rezumat

Iran criminal law and United States of America have considered the threat as a crime and have imposed the penalty for it. The threat importance is considered in where that from one side the persons and civilians in accordance with domestic laws and international documents are involved very important right entitled of "Freedom of speech" and the mentioned rights violation is associated with domestic and foreign criminal sanctions and on the other hand, the expression of some words or commit a certain attitude with them and in accordance with the same laws are prohibited and to be considered as the criminal threat. However, the laws of both countries have adopted different approaches regarding the
circumstances realization of the mentioned crime and some of its examples, although in some criminal threat characteristics such as lack of necessity to apply the means are unlawful and have similarity in its intentionality. In order to detailed understanding of the similarities and differences of criminal threats in Iran and America laws, which leads to the identification of existing disadvantages and advantages and providing the strategies regarding the deficiencies of the current laws and trends, so we are investigating the structure and threat features in criminal law of both countries.
Key-words: criminal law, threat, loss, intimidation, assault.
JEL Classification: K14, K33



Articolul 9 - Comparative analysis in the field of customs offenses and criminal
regulations in certain states in relation to the legislation
of the Republic of Moldova

Rezumat

The study tries to highlight the specificity of the criminal laws of foreign states in the area of customs criminalization. The author discusses the criminal regulations in the laws of some Western European, Central European, Asian states, as well as in the legislation of some ex-Soviet states. The analysis carried out aims at: investigating the incriminating framework in the field of criminal offenses in the criminal law of some foreign states; determining the similarities and differences between criminal laws under analysis; identifying the legal problems by comparing the incriminating framework registered in the Criminal Code of the Republic of Moldova with those included in the criminal laws analyzed; taking good practice. 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 investigation. In order to intensify the fight against the phenomenon of crime in the customs sphere, some proposals have been advanced to improve the legal framework of incrimination. All this is a consequence of taking good practices from the comparative analysis of criminal regulations in the field of customs offenses.
Key-words: customs offence, criminal provisions in criminal laws of foreign states, smuggling, evasion of customs payments.
JEL Classification:K14, K42.


 

Articolul 10 - Adaptation and contrast of woman's status in the constitution and Iran's statutory laws

Rezumat

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.
Key-words: family, women's rights, laws, inheritance.
JEL Classification: K10, K36



Articolul 11 - Considerations regarding the unconstitutionality of articles 55¹ and 99¹
of the law on local public administration

Rezumat

Since its entry into force and to date, Law no. 215/2001 on local public administration has undergone many amendments and completions. One of the questionable additions to this act is done by GEO (OUG) no. 41/2015, a regulation which brought two new articles to the body of the framework-law on local public administration, i.e. Article 55¹ and Article 99¹ . These two articles regulate a unique way of establishing the local or county council, namely by reconstituting these autonomous collegial bodies. This article examines the legislative intervention made by GEO no. 41/2015 and highlights the unconstitutionality aspects of this legislative intervention, recommending the legislature to urgently repeal the regulations governing the reconstitution of the local and county councils.
Key-words:local administration; deliberative authority; election; reconstitution; unconstitutionality.
JEL Classification: K10, K23



Articolul 12 - The principles governing the personal status of foreigners residing in Iran from the perspective of law

Rezumat

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.
Key-words: personal status of foreigners, private international law, Islamic law, civil law
JEL Classification: K33, K36



Articolul 13 - Europol objectives and tasks in the construction of the European Union.
Some critical opinions and proposals

Rezumat

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. Key-words: judicial cooperation in criminal matters; the European Union member states; jurisdiction; police.
JEL Classification: K14, K33



Articolul 14 - Taxation in Nigeria:
an evaluation of the impact of the Companies Income Tax Act

Rezumat

This Paper is written against the background of the need to strengthen Nigeria’s tax laws for optimum contribution to public revenue and economic development in an era of widespread tax evasion and economic recession. The Paper has found among other things that defects and loopholes that exist in the Companies Income Tax Act (CITA) is the occasion for widespread tax evasion, the arbitrary and discriminatory application of the Act, and the political manipulation of the process. The result is that the Act is completely encumbered in achieving its objectives. To eliminate these encumbrances, the paper has recommended, among other things, the amendment of the law to place the wide discretionary powers of the president to impose on or exempt companies from taxation under the supervision and authority of the National Assembly and to place the powers of the Federal Board of Inland Revenue to distrain properties of defaulters under the jurisdiction of the courts.
Key-words: tax laws, economic development, recession, investments, civil liability.
JEL Classification: K22, K34



Articolul 15 - The enforcement of investigative measures based on the European investigation order in criminal matters.
Comparative examination relating to the Romanian law.
Critical opinions and de lege ferenda proposals

Rezumat

In the present study we have examined the specific provisions for certain investigative measures that may be subject to a European investigation warrant in criminal matters provided for in Directive 2014/41/EU of the European Parliament and of the Council of April 3, 2014 on the European criminal investigation order. Thus, we have examined each investigative measures provided in the European legal instrument through the national legislation of Romania, as in the terms of transposition of this legislative act into the Romanian law. The examination of the European legislative act allowed us to identify some dysfunctions in the settlement of some provisions, malfunctions which in the judicial practice of Member States’ competent institutions will cause numerous problems, both of interpretation and application. Among these we only highlight the lack of concrete provisions that oblige the judicial authorities of the countries involved in the issuance and execution of a European investigation order in criminal matters, to provide legal assistance to the persons who are conducting such procedures. In this context, we have formulated a series of critical opinions, complemented by appropriate de lege ferenda proposals, which may be useful to the European legislator from the perspective of amending and supplementing this legislative act. We have also stressed on the need of transposing the European legislative act into the Romanian law by adopting a special law and not by amending some provisions of the Criminal Procedure Code. The innovations in the paper refer to the examination of the investigative measures that can be arranged by issuing a European investigation order in criminal matters, formulating some critical opinions and appropriate de lege ferenda proposals. The paper can be useful to the academics, practitioners in the field, especially to the European legislator from the perspective of amending and supplementing the European legal instrument and also to the Romanian legislator that will have to transpose this legislative act into the national law.
Key-words: investigative measures; crime; cooperation; European Union member states.
JEL Classification: K14; K33



Articolul 16 - The right of certain persons of not giving statements as witnesses
in the Romanian Code of Criminal Procedure

Rezumat

The Code of Criminal Procedure provides some exceptions, from the general rule according to which any persons can be heard as witness, as there are certain persons that can not become witnesses in a criminal trial; these persons are as follow: persons that can not be heard as witnesses and persons that are entitled to decline to testify. We consider that the stipulations of the current Code of Criminal Procedure regarding the persons that can not be forced to testify in some criminal cases is criticisable in terms of requirements of legislative technique regarding the usage of a concise, clear style and a correct terminology. Also, in order to correlate the stipulations of the Code of Criminal Procedure with the ones of the current Criminal Code, we propose, de lege ferenda, a modification of the criminal procedural stipulations regarding the persons that can refuse to testify as witness, by using the expression “family member of the suspect or of the defendant”..
Key-words: witness, criminal trial, family member, the current Code of Criminal Procedure, the current Criminal Code.
JEL Classification: K14



Articolul 17 - Psychological theory of guilt in the Romanian Criminal Code

Rezumat

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.
Key-words: guilt, theory of representation, conscience, willpower, normative theory.
JEL Classification: K14



Articolul 18 - The right to have access to a lawyer
within the criminal proceedings in the European Union

Rezumat

In the present study we have examined the provisions of the European legal instrument governing the right of access to a lawyer within the criminal proceedings in a Member State of the European Union, especially in situations where against the person concerned it was imposed a measure of deprivation of liberty and the right to have access to consular authorities, the right to inform a third person and the right of access to a lawyer in execution proceedings of a European Arrest Warrant. With the actual examination of these provisions, we referred also to the provisions of law, emphasizing the differences of the existing regulation and the need to transpose the European legal instrument into the national law by a separate legislative act and not by completing the special law, as it is intended at the moment. The innovations consist of examining the European legal instrument focusing on the right to have access to all the criminal proceedings, with reference to relevant national legislation, including the procedure of executing a European arrest warrant. The paper can be useful to academics, practitioners in the field and to the Romanian legislator from the perspective of transposing this European legal instrument into the national law.
Key-words: suspected or accused person, the right to defense, the right to communicate with consular authorities, lawyer.
JEL Classification: K14, K33



Articolul 19 - Administrative litigation systems in Europe

Rezumat

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.
Key-words: administrative litigation, comparative administrative law, judicial system, dualist law system, administrative jurisdictions
JEL Classification: K23, K33, K41




 

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