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 - International arbitration and its exclusion from the Brussels regime

Abstract

The Brussels regime, which regulates the matters of transnational litigation excludes arbitration from its scope. Upon formation of the Brussels regime the existing instruments concerning arbitration - the United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards and the 1961 European Convention on International Commercial Arbitration - were believed to be sufficient. The original Brussels Convention 1968 on recognition and enforcement of judgments delivered in the courts of the EU Member States expressly provided for the exclusion of arbitration. The following Brussels I Regulation3 followed the trend and reinforced the exclusion of arbitration from their material scopes. The rationale for doing so was primarily the prevention of parallel proceedings and irreconcilable judgments. The arbitration exclusion from the Brussels regime has caused a fair amount of confusion, especially regarding the extent and limits of the exclusion. That is, whether the arbitration agreement, the arbitral award and its consequences are covered by the exclusion or they may fall under the scope of the Brussels regulation if they constitute only an incidental question to the main cause of action?4 The confusion was illustrated in the ECJ judgment West Tankers5, which generated negative feedback from the arbitration community and indicated the need for reform. The recently adopted Recast Regulation6 took it upon itself to clarify the relationship between arbitration and the EU regime of transnational litigation. The exclusion is reinforced yet again and its boundaries are specified in the Preamble. However, whether or not the concerns about the extent and objectives of arbitration exclusion have been at present eliminated, remains to be seen.
Keywords: international arbitration, litigation, the EU law, Brussels regulation, Brussels recast.
JEL Classification: K11, K20, K30


Articolul 2 - Romanian procedural and administrative particularities of the sale of lands to foreign persons

Abstract

This study aims to examine the particularities of the procedures and legal instruments through which foreign persons, in the broadest sense of this term,3 may acquire, especially through sale-purchase contracts, agricultural lands situated outside of the built-up area, after Romania joined the European Union (1st of January, 2007). Likewise, this paper analyses specific international private law problems that may arise in relation with the application of the Romanian law regarding the legal transfer of agricultural and non-agricultural lands.
Keywords: sale, land outside of the built-up area, foreigners, residents, member States, third States, pre-emption right.

JEL Classification: K11, K33


Articolul 3 - Enforcement individual labor contracts and undeclared work

Abstract

Failure to conclude individual employment contract as provided in the applicable legal rules in the field of legal work brings into question the concept of "undeclared work" – one of the important issues facing the Romanian society.
Keywords: individual employment contract; undeclared work; execution of individual employment contract; features of an employment relationship
JEL Classification: K31


Articolul 4 - Litigation to execution in legal labour relationships. Study case

Abstract

Enforced execution is the legal way by which the Creditor under an enforceable order protects his rights by resorting to coercive force of the state. When the Debtor does not comply voluntarily, the Creditor may appeal to the Bailiff to commence the enforced execution in all manner prescribed by law. Of course, the start of compulsory execution is limited by the conditions of admissibility imperatively specified in the law, principally the condition to exist an enforceable order owned by the Creditor. Regarding the order to be enforced, it can be represented either by an enforceable or final judgement, with provisional enforcement or any other document that can be enforced. Procedurally, the provisions of Art.712 of the Civil Procedure Code allow the introduction by a Creditor who has a litigation to execution against the execution itself, against the Closures issued by the Bailiff, and against any other act of enforcement. Jurisdiction of the Court in this matter will be of the Executor Court or the Court in whose district the Debtor is situated, on the date of the appeal. The appeal of the Debtor questions the Parties not only over the acts of execution because the appeal is also allowed over the explanations relative to the meaning, scope or application of the enforceable order, but in the conditions limited by the legal nature of this order. Thus, according to the law when enforceable order is not issued by a Court or Arbitration may be invoked before an Executor Court including reasons of fact or law which could not be discussed during an earlier trial, in the first instance or in an appeal. Basically, if enforced execution is under an enforceable order that is not from a Court, these reasons can be invoked when there is no other processual mean for its abolition. There also can be submitted a complaint against the Closure by which was upheld the appeal for an enforced execution, and the act of execution concerning the division of the common property or common goods. For the purposes of the foregoing ideas, the article details the mean of introduction the execution appeal for recovery of emoluments arising from a legal labour relationship. Creditor’s debt is represented by the financial rights related to the management function held in a public institution. Regarding the enforcement order it is the Decision of the Appeal Court by which the Debtor public institution is obliged to cover the material damage suffered by the Creditor civil servant, starting from the time of his dismissal from the management function until effectively reintegration on the same position. There are analysed the Debtor’s appeals requesting the annulment of execution acts issued by the Bailiff, and the execution itself, the appeal motivation, the defences of the parties in fact and in law, and the role of the Court during the course of the procedure.
Keywords: emoluments, execution, appeal, public function, labour relationship.
JEL Classification: K31, K41


Articolul 5 - European investigation order in criminal matters in the European Union.
General considerations. Some critical opinions

Abstract

Throughout this paper we have conducted a general examination of the principles under which it is regulated the newest form of European judicial assistance in criminal matters, namely, the European Investigation Order in criminal matters. The examination is focused in particular on the necessity and importance of establishing this new form of legal assistance in criminal matters between the Member States, given that it will override the order of freezing property or evidence in the European Union. When examining the general principles of this form of assistance we have noticed some imperfections of the European law, therefore we have formulated some critical opinions, supplemented by proposals of de lege ferenda. At the same time, given that up to May 22, 2017 the European legal instrument will have to be transposed into the Romanian law, we have formulated some proposals of de lege ferenda aiming at the improvement of Law no. 302/2004 on international judicial cooperation in criminal matters, republished, as amended and supplemented. The innovations of the work regard the examination of the general principles set out in the Preamble of the European legal instrument, the importance and the necessity for adopting this regulation, as well as formulating critical opinions supplemented by appropriate proposals de lege ferenda. The current study follows other works in the international and European judicial cooperation in criminal matters domain, published in some national and foreign publishing houses and in the volumes of international or national scientific conferences. The work can be useful to academics, practitioners in the field and to the Romanian legislator from the perspective of transposing the provisions into the national law of the European legal instrument.
Keywords: Judicial cooperation in criminal matters; offense; judicial assistance, issuing authority.
JEL Classification: K14; K33


Articolul 6 - The Energy Charter Treaty and settlement of disputes – current challenges

Abstract

The Energy Charter Treaty (the “ECT”) is a multilateral agreement aiming to promote energy cooperation and security. This paper focuses on the provisions of the ECT governing the protection of foreign investments and the settlement of disputes between investors and host states. In particular, this paper analyses the recent developments and challenges in the field of dispute settlement under the ECT, such as the increase in arbitrations, the withdrawal of Italy from the ECT, as well as the interplay between EU law and the ECT.
Keywords: the Energy Charter Treaty, foreign investment protection, dispute settlement, investment arbitration, European Union law
JEL Classification: K33, K41



Articolul 7 - La contractualisation des rapports pecuniaires entre epoux
en droit camerounais

Abstract

The matrimonial regimes in Cameroonian’s law is known nowadays as the venue
of unexpected solutions in matters concerning divorce, corps’ separation and widowage
because of severe confusions made by the Jurisprudence every time It’s sued to liquidate or
share a matrimonial patrimony. Though, it has been long times stated that throughout a
marriage’s agreement signed before the marriage celebration, spouses could organize their
patrimonial relationship by themselves, choosing clearly and precisely their matrimonial
regime. Such old and viable solution shows the place of contract in the Law of matrimonial
regimes. It appears as one of the remedies against the incertitude of the jurisprudence in
family’s patrimonial cases in Cameroon, where the customs are so heavy that even judges
in charge of modern law, couldn’t resist in applying its solutions as they did in the
KOUM’s case. To correct those incertitude in the “contractualization” of the patrimonial
relationships in marriage remain the best solution. It can be possible according to the civil
code by or without spouses will. Any way, it’s a means to modernize the Law of
matrimonial regimes and reduce matrimonial unsolved cases.
Keywords: “contractualization”, patrimonial relationship, matrimonial regime;
community of goods; separation of goods; contract; marriage agreement, spouses
JEL Classification: K11, K12, K36



Articolul 8 - Aspects concerning the lengths of the excluded shareholder’s liability towards third parties in the case of limited liability companies in Romania

Abstract

In the current context of reinventing the trading company law, at the end of a lengthy and extremely difficult economic crisis, when every participant in the economic life tried to find their own way to adapt and make their activity survive the new social and commercial realities, not few were the cases when some of the Shareholders were excluded and their liability was drawn onto the legal person itself. Nevertheless, there is a type of legal liability of the former Shareholders, excluded from the Company, that still is quite deficiently regulated and, despite the sound argumentation and comprehensive regulation of Law no. 31/1990, it fails to provide a clear and detailed explanation of the consequences, namely, of the consequences the exclusion of a Shareholder has over the Third Parties of good-faith that the legal person (the Company) had or continues to have legal relations with. This paper thus aims at analysing one of the main effects of excluding Shareholders from the company, namely the extent of their liability towards the Third Parties, and it is structured in five parts, as follows: 1) Introduction, 2) About the Shareholders’ exclusion, 3) The effects of excluding a Shareholder from the Limited Liability Company, 4) The excluded Shareholder’s liability towards the Third Parties and 5) Conclusions.
Keywords: exclusion, affectio societatis, case studies, true and just causes, liability
JEL Classification: K22



 

Articolul 9 - La notion de bail professionnel en droit OHADA et ses implications sur la théorie générale du fonds de commerce

Abstract

The last reform of the Uniform Act on General Commercial Law OHADA reconsidered several pieces of commercial law. The concept of leasing has not been spared. She, who was accompanied by the "commercial" substantive, has been transformed into "commercial lease". Question of style or simple semantics? Certainly not, because the legislature in 1997, had not previously dared revise the designation commercial lease that no longer fit with the extension of the beneficiaries he had devoted himself. With the reform of December 2010, the institution of the lease has just renamed. Parliament also confirmed the extension of the scope of economic actors involved in the protection of the lease. The regime of former Uniform Act was therefore not fully extended, particularly since we noted another significant change in the new text. Contrary to former Articolul 69 which devoted two cumulative criteria necessary for the implementation of the lease of the regime, including the situation in a populated city of more than 5,000 people and membership of local under lease to a designated class2, the new text retains a single criterion, that of belonging to a local specific category. This mutation disrupts some basics of goodwill theory. Indeed, with the increasing scope of lessees, there is a sliding protection to professional trader. This causes result in a substitution of the lease of the foundation that passes from customer to the profession. The loss of the privileged place of business customers coupled with doctrinal and jurisprudential developments in the theory of civil customers, argue for an assimilation of the different customer categories.
Keywords: business lease, OHADA, business assets, Commercial Law
JEL Classification: K11, K22, K33


 

Articolul 10 - The right to interpretation and translation within criminal proceedings in the European Union. Comparative examination. Critical opinions

Abstract

In the present study we have examined the Directive 2010/64/EU of the European Parliament and the Council, the European legal instrument governing the right to interpretation and translation within criminal proceedings in the European Union. The innovations in this paper concern the examination of the regulatory way of the mentioned two rights, the formulated critical opinions and the proposals of de lege ferenda. The value of the paper lies in the de lege ferenda proposals, which that can contribute to improving the system of European legislation in the field, which in the constant interpretation of the ECHR it also requires respecting the right to interpretation and translation in ongoing criminal proceedings. Also, the examination highlights the importance and necessity of adopting this European legal instrument regarding the harmonization of the national laws in terms of compulsoriness and the procedure for complying with the two rights to which we referred, in case where the suspect or the accused is to be judged of the territory of a Member State other than his State of origin. The work can be useful to theorists, practitioners and to the European legislator from the perspective of operating the suggested changes.
Keywords: suspect; accused; offense; criminal proceedings; the right to a fair trial.
JEL Classification: K14, K33


 

Articolul 11 - The consequences of not applying mutátis mutándis a decision of the Romanian Constitutional Court

Abstract

The article aims at procedural mechanism of application of art.147, paragraph 2 of Romanian Constitution3, in the specific case of pronouncing an unconstitutionality decision which concerns a law in draft before its promulgation, but especially focuses on the effects produced by such a normative act adopted without consideration of the Constitutional Court Decision. In other words, the Parliament, although bound to reconsider those provisions to bring them into line with the Constitutional Court decision, for failure to comply with this obligation, it brings us into the situation of prevalence inability of this Constitutional Court Decision and breach of a law in force which was, moreover, declared unconstitutional still at the planning stage. In this way, we find that the effects in question are reflected in an unfavorable way; above all the interest of local collectivities; and raises a big question mark on the achievement of both the "joint" powers of Parliament's own, and the concept of "local autonomy" by those who exercise it, knowing your rights, obligations and limits allowed.
Keywords: Romanian Constitution, Constitutional Court, Supremacy guarantor of Constitution, The Romanian Parliament, Legislative Council, President of Romania, enactment, deliberative authorities, local autonomy, community development associations..
JEL Classification: K10, K23, K40


 

Articolul 12 - L’incrimination du terrorisme en droit pénal camerounais

Abstract

Law No. 2014/28 of 23 December 2014 on the suppression of acts of terrorism in Cameroon was enacted in a context characterized by the resurgence of terrorism. But the caution with which it was greeted raises questions about the formal technique used by the legislator. A content analysis of this law, we come to two conclusions: First the legality principle is violated because the offense is not defined and it is formulated in vague terms. Second, the prominence it gives to mobile and indifference of the means used in the commission of the offense exalt guilt.
Keywords: criminality, terrorism, legality, guilt, mobile.
JEL Classification: K14, K33


 

Articolul 13 - Premises for the establishing of the European Administrative Space

Abstract

Articolul analyzes the premises which made possible the creation of a European Administrative Space in the European Union. Are researched the criteria for belonging to the European Space, the conditions for the existence of a European Public Space and the notion of the European Administrative Space. They emphasize the factors that can determine a unified transnational public law by analyzing the administrative convergences in Europe. Today we find that although the term and concept of law of public administration differ from one national system to another, it is possible an agreement on a common definition of administrative law, as a set of principles and rules that relate to the organization and administration management public and relations between governments and citizens.
Keywords: European Administrative Space, the European Union, administrative law, the administrative convergences
JEL Classification: K23, K33


 

Articolul 14 - Enforceable contracts and the consequences of termination on them in Romania

Abstract

The article is dedicated to the overall presentation of contracts to which the law recognizes the power of enforcement, in a brief retrospect carried out through the Roman law and their evolution to the present day as they are found in the Civil Code or special laws that govern them. The contract is in effect, the conventional framework by which parties incur obligations and acquire rights in relation to each other, representing the materialization of the agreement of the parties and is only deemed validly concluded if the parties have expressed their consent freely and without undue influence. Contract partners are free to insert any clauses they want in the Covent signed, provided that they do not contravene to public order or morality. But the aim is to highlight both the power of the contract, and even more the importance of expressing the individual’s will on its fate. The importance of this legal act never contested, made the legislator invest it with the force of law between the contracting parties. So in cases expressly stipulated by the rules of law, this legal act has been given the benefit of enforcement, however without prejudicing in any way the principle of autonomy of will and without creating a contractual imbalance, privileges or discriminations.
Keywords: contract; enforcement; termination; forced execution
JEL Classification: K12


BOOK REVIEW
„European Perspectives on the Common European Sales Law”
by Javier Plaza Penades and Luz M.Martinez Velencoso (eds.)

Abstract

As its title sugested, the book edited by J.Plaza Penades and L.M.Martinez Velencoso and published by Springer this year (2015), offers a complete analysis of the Draft of Common European Sales Law2 (CESL) - as was amended3 -, from a range of European perspectives.
Taking into account that the authors belong to different Member States –Germany, Norway, Poland, Portugal, and Spain- this book „present a coherent view of the subject from the perspective of a number of scholars from different European countries, of whom will compare the text of the CESL with their own national law and other European legal texts”.4
Futhermore, the authors address very different topics from both national and comparative law perspectives, reflected the specificity of European law. On the other hand, they intend to offers to their readers „a serious comparative study of the CESL alongside other instruments, such as the CISG, and also pre-existing instruments including the Draft Common Frame of Reference (DCFR) and the Principles of European Contract Law (PECL).
Keywords:
JEL Classification:


 

JURIDICAL EVENT
Inter-professional Charter of the Romanian Judges, Prosecutors and Counsels – a unique European model of inter-professional dialog within the judicial system in a new, global democratic society

Abstract


Keywords:
JEL Classification:

 

Declaratie de etica si malpraxis
Declaratie privind accesul deschis


Baze de date internationale

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)








Baze de date nationale


Biblioteci si cataloage internationale
click aici

Biblioteci si cataloage nationale
click aici