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Society of Juridical and Administrative Sciences



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


Frequency:
2 issues / year

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INTERNATIONAL CONFERENCE
PERSPECTIVES OF BUSINESS LAW IN THE THIRD MILLENIUM
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abonamente
 

1st Article -STUDIES AND COMMENTS
Aspects of the privatization of public services

Abstract

This article aims to analyze the public service as a fundamental institution of the administrative law and changes in its legal system, with special emphasis on privatization phenomenon in the field of public service.
There are critically analyzed weaknesses manifested in the privatization of public services and formulates proposals for drafting laws in the future.
The main negative aspects consist in how the State, through its authorities, supervises and controls (it monitors) how an individual, who was transferred to the provision of a public service, provides that public service and complies with the terms privatization assumed by privatization contract commitments.
Keywords: civil service, state, private, privatization of public service monopoly, monitoring, transfer of responsibility.
JEL Classification: K23


2nd Article - Arbitration proceedings under international regime - an overview on the Albanian legislation

Abstract

In recent years, globalization has brought the spirit of breaking down cultural and social barriers between people and particularly has accelerated communication and economic cooperation between states. In this context, legal issues regulating these relations can not remain within national frameworks but have received more and more an international prospective. A clear example of this context is the international commercial arbitration.
The great increase of the international trade and companies investment in foreign countries is associated with the tendency to transform the international commercial arbitration into a mechanism used increasingly to settle disputes arising from these relationships.
Through this paper, highlighting the main features of international commercial arbitration will be presented a comparative overview between international legal framework and domestic provisions of the Albanian legislation, governing the arbitration proceedings. In this way, will be presented the problematic issues which are addressed by the domestic legal framework in this area, as well as the necessity for eventual changes. Adoption and implementation of legal instruments, which provide contemporary improvements of arbitration institute, in accordance with the international legal framework, will be a good service to the integration process of the Albanian economy.
Keywords: arbitration, international, procedure, Albania, legislation.
JEL Classification: K41, K33



3rd Article - Franchising contract – a modern juridical and economic instrument for business expansion

Abstract

Development of trade, as well as its dynamics in the context of globalization, have created the premises of acceleration in the commercial distribution networks expansion, with immediate effects in the sphere of law. Transgression, moreover, was predictable and any legal implication in economics, as well that of the judiciary system in the economy can't be ruled out. Among the commercial agreements, franchising has experienced one of the most spectacular developments of all kinds of business, due to the favorable context in which it developed. In this paper we aim to analyze the essential elements of franchising, based on the legal phenomenon rather than on the economic one. This article also examines the behavior of existing and future entrepreneurs regarding the possibility of implementing this legal instrument. These results are consistent with the hypothesis that, even if, according to the statistics, the franchise contract has successfully imposed itself in the business world, there is enough reticence in adopting it as a development measure.
Keywords: contract, franchising, development, business, juridical instrument.
JEL Classification: K12


4th Article -Bank foundation – a symbiotic legal institution
at the crossroad of banking system and non-profit sector

Abstract

In the context of the development and omnipresence, in Europe, of the non-profit sector and due to the diversification of the legal entities that are involved in the configuration of the third sector, an legal analysis of the foundation of banking origins, is very appealing.
Throughout this study we aim to point out key moments in the evolution of this particular figure, mainly in the Italian legislation. Nevertheless, we intend to identify the legal nature of the foundation of banking origins in order to draw a line between banking and philanthropic activities.
Keywords: foundation of banking origins, non profit sector, Italian legislation, corporate foudation.
JEL Classification: K39


5th Article - The significance of accession to the United Nations Convention on Contracts for the International Sale of Goods 1980 for Indonesia

Abstract

The United Nations Convention on Contracts for the International Sale of Goods 1980 (The Convention) is one of monumental products to respond the need practically of the business actors in international trade traffic. The Convention is not only containing substantive rules, but also containing procedures in determining the law applicable to disputes faced.
The analytical result indicates that the legal concept can be developed in Indonesia for future governing choice of law in international sales of goods transactions is by accession to the Convention. In that accession, it is recommended that Indonesia puts aside the application of Article 1 (1) (b) of the Convention does not reflect valued the appreciation of state sovereignty.
Keywords: Choice of Governing Law, International Character, Law Applicable
JEL Classification: K12


6th Article - Comparative analysis regarding the procedure for granting the refugee statute in Romania and France

Abstract

Everyday realities demonstrate more and more the fact that there are people who are constraint to leave their countries of origin, as a consequence of dangers of a nature to seriously harm their right to life, liberty or integrity and who are forced to remain for a period of time, or even for the rest of their lives, in the country offering them asylum. From the analysis of the current legal framework in Romania and France, we can state that at the level of the two states there is a tendency to give norms applicable both to the seekers of the refugee status, as well as to asylum-seekers. In spite of the fact that the two notions cannot be confused with one another, their common regulation is the result of the numerous resemblances between the two institutions, such as, most times, the state that recognized the statute of refugee as immediate protection form will also grant the right to asylum as final protection form. Thus, both at the level of Romania, and at the level of France, the two institutions represent humanitarian protection forms for aliens persecuted for their beliefs, opinions or the political belonging or their belonging to a social group, or as a consequence of their race, religion, nationality2, which is granted by the state by virtue of its sovereignty. In addition, the Romanian state and the French state undertake to grant similar rights and liberties to the refugees and asylum-seekers, equal to those of their own citizens, out of which stands out the right not to be banished. Following the direction imposed by the U.N. Convention of year 1951, neither Romania, nor France grant the statute of refugee to the alien who committed a crime against peace or mankind, a serious common law offence, outside the state, before being admitted to its territory as a refugee, or facts contrary to the goals and principles stated by the U.N. Charter3. By granting the statute of refugee, the alien receives the permission to stay of the territory of the Romanian, respective French state, he benefits of identity documents, of the right to choose his place of residence and he may even travel freely in the same conditions as the other aliens4.
Keywords: refugee, right to asylum, ordinary procedure, accelerated procedure.
JEL Classification: K23

7th Article - Data protection for the digital age: comprehensive effects of the evolving law of accountability

Abstract

The law of personal data protection has for years been lagging behind technology, which is evolving propulsively and with high speed. A number of new challenges arising from the post-modern digital age have been identified for rights and freedoms of individuals with respect to processing of their personal data and thus a need for adapting the relevant legal-regulatory regime and ensuring a workable and systematic data protection system for the third millennium. After examination of the current legal framework and supporting systems at the level of European Union law, this paper focuses on recently proposed reforms. Proposed new EU legal-regulatory regime towards a potent data protection ecosystem is strongly supported by stricter accountability of those who are responsible for personal data. As one of the core legal principles supporting the new regime, accountability denotes, in a nutshell, a number of legally enforceable duties to implement and verify measures and procedures that can ensure operative and demonstrable data protection compliance. Selected highlights of the proposed accountability measures are therefore examined in this paper and arguments provided for a shift towards organizational data protection management and governance already today.
Keywords: right to personal data protection, accountability, compliance, data controller, digital age, Proposal for a EU General Data Protection Regulation.
JEL Classification: K20

8th Article - The evolution of the regulations concerning the crime of illegal performing of the abortion

Abstract

The opportunity of the analysis of how the offense of illegal performing of the abortion was regulated over time in terms of Romanian criminal law lies in the fact that the offense in question is found with another name in the new Criminal Code, whose entry into force is imminent, and in order to fully understand the evolution of the new provisions it is important to know how the fact in question was criminalized in various stages of social development.
Keywords: development, regulation, crime, abortion.
JEL Classification: K14

9th Article - Connection between the economic crisis and contractual circumstances in Hungary and in the European Union

Abstract

With the conclusion of a contract of civil law, the parties may take some reasonably unforeseeable economic risks that might disrupt the synallagmatic character of the contract; therefore, disproportionate, unviable extra burden may appear in the contractual relations on the side of some parties. The sudden increase of inflation or prices, the intense reduction of the purchasing power of wages, the radical changes in the relations between supply and demand, the collapse of the product market, the insolvency of the economic actors (especially in case of a contractual party), the negative changes of the market and financial relations and the production and liquidity problems of the economic sector shall result in this incalculable risk. In case of maintaining the original contractual content, an economic crisis affecting the whole economy and society of one or more countries may cause any or all the parties to take inequitable and intolerable risks.
In the following, we analyse those reasons in the Hungarian judicial practice that are based on the Hungarian Civil Code and referred by the parties in order to get rid of the contractual obligation in the name of economic/ business risk and finally, we make a conclusion with respect to the current European regulations.
Keywords: Hungarian Civil Code, conclusion of a contract of civil law, civil contract modification, economic risk, European Union.
JEL Classification: K12

10th Article - Aspects concerning the immovable accession from the perspective of the new Civil Code

Abstract

The new Civil Code introduces several important changes and clarifications regarding the ownership right in general, including in the matter of the ways of acquiring private ownership. Among the ways of acquiring the private ownership right, the accession gets in the new Civil Code a legal regulation which is much more precise and better systematized, especially in relation to the artificial immovable accession, the legislator thus responding to practical needs, as they have been raised in the jurisprudence, but also to controversial issues outlined in the juridical doctrine.
This paper aims to conduct a comparative analysis, which is necessary to both the analyst in law and the practitioner, between the old regulation contained in the Civil Code of 1864 and the current regulation provided by the new Civil Code in the field of immovable accession, with special attention to artificial immovable accession, due to its practical incidence.
Keywords: private ownership right, ways of acquiring, accession, immovable accession, artificial immovable accession.
JEL Classification: K11

11th Article - The punishment's purpose

Abstract

The repressive reaction involves, as any human action, a certain finality. As the punishment's essence is the suffering, then, in the course of time it has been arisen the question regarding the goal for which the society utilizes the suffering and for what the society punishes. According to the classic penal doctrine that bases on the idea of retribution, the repressive reaction was limited to a simple revenge and it didn't existed any concern in order to influence the doer's future behaviour. In the positivist conception, the punishment's purpose was to shelter the society against the offender's new attacks. Going up to an extreme point with this idea, the positivists equated the punishment with the curative treatment at which the patients in the hospitals were submitted and which it was adequate to each category of offender. For the positivists, the penal sanction, it was meant to combat the organic or the psychological anomalies or the dysfunctions of the social environment that have influenced the offender and that determined him to commit antisocial deeds. In the modern vision, the punishment cannot have a goal on its own and that is to answer to bad with bad because it doesn't come from an abstract desire for revenge, but from a concrete necessity of hindering the repetition of the antisocial deeds and of defending the fundamental social values.
Keywords: the punishment's purpose; the classic penal doctrine; retributive character; prevention; suffering; positivist vision.
JEL Classification: K14

12th Article - Le Tribunal Criminel Spécial au Cameroun et les grands principes de la justice criminelle: étude comparative sur les Lois de 1961 et 2011

Abstract

The following paper deals with the special criminal court and the principles of the criminal justice. We compare the law of 1961 and 2011, which create these courts. In fact, we appreciate if these courts respect the general principles of the criminal justice in Cameroon. The aim is to have the whole knowledge as far as special criminal courts are concerned and to purpose the manner to improve the 2011 court.
Keywords: criminal justice, the special criminal court, Cameroon, principle of double degree of jurisdiction, principle of the separation of judicial functions.
JEL Classification: K14

13th Article - The valid conclusion of the compromise/transaction contract. Special rules

Abstract

In this paper we aimed to examine the legal mechanisms that ensure the protection of the parties within this form of private justice-that of compromise conclusion. For a systematic approach of this subject, we reported, first of all, to the general rules governing, in terms of validity, the conclusion of conventions, but mostly we leaned on the particular aspects relating to this specific contract. In order to respond to the main objectives, we reviewed the legal requirements in force and the way the case law interpreted them and also the relevant arguments brought by the doctrine. The research methodology took into account elements of comparative law; we followed, in this respect, the French regulatory model and the Anglo-Saxon common law which is favorable to the conclusion of this type of contract.
Keywords: compromise (contract), validity conditions, settlement over a void or cancelable document, settlement based on false documents.
JEL Classification: K12

14th Article - Public-private partnership: between legal requirements and the real needs

Abstract

The overview image of the public-private partnership is represented by cooperation between the public and private actors to carry out the activities of public interest, cooperation based on the capacities of each partner to allocate properly the resources, risks and benefits. The main elements of the institutional framework are established by the national legislation. The traditional domains for the development of the partnerships are necessary at the national level and for infrastructure. The increasing tendency toward decentralization of the provision of services introduces a lot of public-private opportunities like health, education and other social services in the non-traditional areas, as well. The study analysis presents the idea of partnership as a means of solving the problem of more and more limited resources which are at the disposal of public administration. The quality of legal framework and government policies for the development of partnerships gives to this way of cooperation, either the quality of strategy in the public policies, which purpose is to obtain greater benefits by combining the resources of those two sectors, or the limited solution to the re-launch of the economy and to meet the general interest.
Keywords: public-private partnership, recipient, public interest, public services, capabilities, resources, risks and policies.
JEL Classification: K23

15th Article -Public works concession
Delimitation from other contracts

Abstract

The concession of public services without the concession of the related public works was viewed as an exception. The public services contract was considered to rank first among the administrative contracts. The European Court of Justice ruled that establishing of the nature of a contract – whether it is a public works contract or a public contract of a different nature – is made by identifying the main purpose of the contract that determines the applicable directive, including situations where the contract has elements regarding the concession of public works as well as other types of public contracts. Also, the concept of concession used in relation to both concession and PPP was deemed in Romania as a source of confusion and ambiguity regarding the confidence of both the public and private partner within the context of project development.
Keywords: public work, concession contract, public services, public contract.
JEL Classification: K23


 

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