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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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Volume 10, Issue 3, December 2020

Cuprins



Articol 1 - About the international administrative law and other demons. A venture in a “delimiting law”

Rezumat

In scholarship, it was argued for existence of an "international administrative law" (internationales Verwaltungsrecht, diritto amministrativo internazionale, droit administrative international) as a special branch of municipal administrative law. Under this understanding, international administrative law constitutes a special (sub)discipline, providing for norms governing administrative relations with a foreign element. However, this concept wasn’t overall accepted in the scholarship of administrative law and some authors have argued, international administrative law represents more a field of emerging study, than an established legal discipline. This article aims to discuss thorny issues of the concept and summarise dogmatic considerations, expressed vis-á-vis international administrative law in the scholarship. At the same time, this article aims to settle these dogmatical considerations and to present international administrative law as a “delimiting law”, constituting a part of both substantive and procedural administrative law. Lastly, this article argues, that the parallel emergence of international administrative law in several jurisdictions echoes existence of this field as a part of an (administrative) ius commune.
Key-words: international administrative law; delimiting law; delimiting norms; choice-of-law rules; dualism; isolationism in law; ius commune.
JEL Classification: K23, K32



Articol 2 - Challenges of constitutional judicial control of the delegated legislative power during the COVID-19 Pandemic in the light of international standards: the case of North Macedonia

Rezumat

In order to effectively prevent the COVID-19 Pandemic, for the first time in the history of the Republic of North Macedonia by decision of the President of the Republic on March 18, 2020, a state of emergency was established, which in addition to intensified measures to protect public health, also implied the introduction of a special legal regime whose basic characteristics are: deviation from the constitutional principle of separation of powers and taking over by the Government of legislative powers and the opportunity to limit basic human rights and freedoms and to take intervention measures by the executive power in economics, education, labor relations, and other spheres of social life. In this regard, the declaration of a state of emergency has activated the constitutional authority of the Government to perform its legislative function. Unlike other constitutions that regulate in more detail the powers of the Government, parliamentary control, enactment of decrees with the force of law and other regulations, as well as the restriction of human rights in a state of emergency, the Constitution of North Macedonia does not contain special provisions on the government powers, except enacting decrees with the force of law. Due to such a constitutional gap, the question remains whether such regulations remain in the legal system even after the state of emergency ceases. The Constitution of North Macedonia only stipulates that the authorization of the Government to adopt decrees with the force of law lasts until the end of the state of emergency, which is decided by the Parliament, without considering the situation when the state of emergency is declared not by the decision of Parliament but by the decision of the President of the Republic. With this paper authors by explaining the principle of the Rule of Law as a generally accepted International and European standard in such situations, using: normative legal method, comparative legal method, intentional, systematic and objective interpretive methods, will focus on the specific analysis of the judicial control of decrees with the force of law by the Constitutional Court of North Macedonia, in terms of, to what extent the principle of proportionality was respected in the adoption of such decrees which derogated existing laws in order to protect the public health of citizens.
Key-words: a state of emergency, rule of law, proportionality, judicial control, legitimate goal, decrees with the force of law, constitutional limits on government power.

JEL Classification: K23, K40



Articol 3 - Constitutional/judicial resistance to European Law in Iceland. Sovereignty and constitutional identity vs. access to justice under the EEA Agreement

Rezumat

In the context of occasional constitutional resistance to international and European Union (EU) law in other countries, we find a similar tension in Iceland vis-à-vis the European Economic Area (EEA) Agreement and the Icelandic constitutional/statutory domestic system (EEA Act 2/1993). The authority and effectiveness of EEA law seem disregarded with negative consequences for the judicial protection of individual rights. The EFTA Surveillance Authority (ESA) sent official letters to Iceland in 2015, 2016 and 2017. In its view, in too many recent cases, the Supreme Court has discarded and set aside validly implemented EEA law in order to give precedence to conflicting Icelandic law. In some cases, individuals have no proper remedy to exercise their European rights (State liability for judicial breaches of EEA law not admissible). It is uncertain at this time whether actions for infringement of EEA law will be brought by ESA to the EFTA Court. This study reviews this sort of judicial, legislative and/or constitutional resistance to EEA law in Iceland and argues that the use of concepts such as sovereignty (public international law) and constitutional identity (EU law) can never justify the denial of access to justice and effective judicial protection under the EEA Agreement.
Key-words:Iceland, European Economic Area law, constitutional resistance, access to justice.
JEL Classification: K10, K33, K40



Articol 4 - International treaty as a source of financial law in Ukraine

Rezumat

Double taxation agreement is one of the most widespread type of international treaty regulating financial relations. The efficiency of its application as a source of financial law depends on the features of the legal basis for implementation of its provisions into domestic legal orders of contracting states. Based on the practice of Ukraine, there is an attempt to describe key challenges in application of provisions of international treaties in the context of the requirements of the Tax Code of Ukraine based on the application of comparative method: 1) the legal status of double taxation treaties of Ukraine that are still in effect based on the fact of legal succession of Ukraine; 2) the legal status of protocols to international treaties concluded between competent authorities of contracting states; 3) the legal status of mutual agreements concluded on the basis of the provisions of double taxation treaties.
Key-words: financial law; tax legislation; interpretation; international treaties; domestic implementation.
JEL Classification: K33, K34.



Articol 5 - Administrative procedure as a key factor in development of control over administrative power a European perspective

Rezumat

European Parliament resolution of 9 June 2016 and ReNEUAL Model Rules on EU Administrative Procedure constitute two attempts to answer to the lack of transparency and protection of citizens’ rights in decision making process before administrative bodies. D espite that, EU still has not adopted a legally binding act regulating administrative proceedings before its all authorities. The key for understanding this situation is a constitutional shape of EU institutional system with Commission as the biggest admin istrative power which blocks legal initiative at that field. It brightly contrasts with a long tradition of codification of administrative procedure in the vast majority of member states. Furthermore, nowadays we have to deal with a new wave of codificatio ns. That arrives not only to countries with well established achievements but extends on those usually reluctant to that kind of provisions. The analysis of factors which led to current state of affairs requires therefore the extensive use of comparative a nd historical method. However, the results of research can have a crucial importance for understanding of EU administration and may be used in future for amelioration of procedural law.
Key-words: administrative procedure, European Union administrative law , Europeanisation, codification of administrative procedure
JEL Classification:
K23, K41



Articol 6 - Realization of private and public interest in taxation during public financial activity in Ukraine

Rezumat

This article analyzes the legal basis for the realization of private and public interest in taxation, ways to establish a balance between private and public interests as a basis for a “tax security” of the state. It is stated that: 1) the peculiarity of Ukrainian legislation is the insufficient balance of private and public interests in taxation; 2) the balance of private and public interests in taxation should be implemented at the level of law; 3) the state has not yet established a climate of trust between the state and taxpayers due to imperfect tax legislation, frequent changes in tax rules, low level of professional training of tax officials, low level of service for taxpayers by the tax authorities and lack of transparency in using the public monetary funds by government bodies. The current correlation and the ratio of private and public interest in in the legal literature and in tax legislation is analyzed, recommendations for its improvement are offered. The foreign approaches to the balancing of the private and public interest in the tax legislation has been reviewed. The concept of "tax security of the state" is formulated, the basic requirements to its maintenance are defined, namely: 1) existence of clear transparent procedures of realization of norms of tax laws; 2) existence of a highly professional tax service; 3) existence of established appropriate level of tax culture of the population which allows to increase revenues through voluntary payment of taxes.
Key-words: public financial activity, private and public interest in taxation, tax policy, tax security, public finance, public monetary funds, public needs of population.
JEL Classification: K23, K34



Articol 7 - International investment protection in front of the states role in crisis times to managing disputes

Rezumat

International investment law has regulatory features, especially in the area of international investment protection and dispute settlement, in the violation case of these rights. Any force majeure situation or fortuitous event (pandemic and the economic crisis generated by it) represents, in this field, an escalation of situations with conflict impact, for the solution of which the main actors must adapt their capacity and regulations. In this context, a higher risk of disputes must be taken into account. Although many governments are trying to find a balance between protecting public health and economic interests, the pandemic creates unprecedented risks for foreign investors around the world, the effects of which will be visible in the coming years. The competent courts are beginning to have an extremely difficult task of analysis and deliberation, which will oscillate between recognizing and respecting the exercise of significant discretionary state power in response to public health problems and between sovereign measures taken by states in response to pandemics or in other similar cases, measures which may violate the protection of foreign investment contained in international investment agreements, if they are discriminatory or disproportionate. To conduct this study we used recognized descriptive, explanatory and predictive research methods, specific to the criteria imposed by international investments, such as: (1) the temporal criterion, (2) the reactivity criterion and (3) the intrinsic characteristics of the method.
Key-words: investment protection, pandemic, state, foreign investment.
JEL Classification: K11, K23, K33



Articol 8 - Revisiting the franchise contract

Rezumat

Commercial distribution corresponds, in the economic process, to the activity of intermediation between supply and demand, through which the producer, using intermediaries, manages to deliver products and services to consumers, while at the same time seeks to know and satisfy the demands of the latter. Within the industrial revolution, mechanization combined with new production techniques, allowed production directed towards self-consumption to be replaced by surplus production, on a large scale, which created the need to dispose of goods. With the advent of industrial capitalism, the industrial enterprise started to assume the central role of the economic system, with trade being relegated to a secondary role. The producers, in view of the surpluses resulting from mass production, began to feel the need to resort to intermediaries who would assume the distribution of the products in several markets, namely, in distant markets. Distribution gradually begins to become independent from the production, presenting itself as an auxiliary activity for the industry. In this sense, commercial distribution is no longer centred on the physical distribution of products, but takes on a series of activities aimed at adjusting supply to demand, which includes attracting customers, providing after-sales services, financing and risk-taking, consultancy, promotion and advertising, among others. These activities are articulated in more or less complex processes. Thus, distribution begins to represent the main means to increase the company's profits, becoming the object of study and deepening. However, given the insufficiency of the occasional purchase and sale contracts to cover the web of intricate obligations required in the distribution of goods to the various operators of a distribution chain, leading to an undesirable increase in distribution costs, there was a need to create more sophisticated contractual schemes. In contracts, such as franchising, it is possible to witness the productive integration of the distributor into the producer network, accompanied, in different degrees of intensity, by the attribution and recognition of intellectual property rights. This contract was associated, both in the United States, a country where it first appeared, and in Europe, to periods of economic recession, in which excess supply in face of demand will compel producers to conquer new markets. This objective, owing to the difficulties of the producer to assume the distribution of the products, given the lack of capital, characteristic of post-recessive times, will be achieved through the delivery of the distributive function to the distributor, thus seeking, in accordance with the principle of division of labour, achieve greater efficiency. The crisis currently experienced worldwide following the Pandemic COVD 19 and the role that this contract can play in the economic recovery, makes it imperative to revisit this contract in order to approach its modalities, advantages and the legal framework.
Key-words: franchising, distribution, franchise, contract.
JEL Classification: K22, K23, K33



Articol 9 - Confiscation of proceeds and property related to crimes: international standards and the ECHR practice

Rezumat

Organized crime and corruption in the context of globalization pose a huge threat to the security of all countries without exception. Therefore, the common European and national crime prevention systems pay great attention to criminal activity economic sense deprivation. This is achieved through the application of confiscation of property and proceeds related to crime. For transitive legal systems development the reference points are the international standards and ECHR practice which are studied using dialectical, formal legal and comparative legal methods. The study showed that the international standards and ECHR practice make it possible to find a balance between public and private interests, ensure maximum seizure of proceeds and property related to crimes, and guarantee the protection of property rights as an essential human right. On the example of Ukraine the peculiarity of the confiscation regulation in countries with a transitive legal system is shown and the perspectives for domestic law improving in this aspect are outlined.
Key-words: confiscation, proceeds and property related to crime, international standards, ECHR practice, punishment and criminal law measure, human rights protect
JEL Classification: K14, K38, K42



 

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