Revue éditée par:
Editura ASE
Département de Droit de l'Académie d'Etudes Economiques de Bucarest


Société des Sciences Juridiques et Administratives

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

2 numéros / an








Article 1 - From great expectations to an even greater failure - the case of Montenegrin regulatory framework on shareholder derivative suits as an incentive for rethinking the concept itself


The author utilizes a case study of Montenegrin regulatory concept of shareholder derivative suits in order to demonstrate, by comparing its features with such concepts in other legal systems and features marked as favorable factors in legal theory, that its failure, as well as the failure of derivative suits in other countries cannot be a priori considered as result of inadequate approach of the legislator. Along with some other important legal systems, shareholder derivative litigation in United States is also analyzed, since its track record shows that it is virtually the single at least relatively successful system of derivative suits so far. This analysis is made so as to distinguish the particular and in many ways unique features of the shareholder derivative litigation concept in United States that enabled the relative success of it. As result of the research conducted and analyses made, the author argues that there is an inherent flaw in the very foundation of the concept of shareholder derivative suits, which generally hinders the use of this legal mechanism. Finally, the author finds that this flaw is deeply rooted in what is known today in theory of company law as the first agency problem.
Key-words: shareholder derivative suits; Montenegrin regulatory framework; legislator; first agency problem; incentives, inherent flaw.
JEL Classification: K22

Article 2 - Corporate governance in state-owned companies in Hungary


At the development and to the comprehension of the regulation it is necessary to ascertain that in our view, the subject of the regulation is the operation of the company. The regulation regulates the problems arising specifically during the course of the operation of the company, as an „ex ante” tool and by the avoidance of that upon the cessation of the public company, any unjustified or inconcievable costs (social costs) should rise. As an example, there are the infamous earlier corporate scandals (Enron, Parmalat, Vivendi Universal), the infringements of which drew critical social (budget) costs, as they left behind unsettled creditors’ claims, plenty of workplaces got terminated, etc. To prevent this, one of the techniques is corporate governance, as it focuses on such mechanisms during the course of the operation of the company as direction and control. With this, the cessation of the company can presumably be avoided, as it is publicly acknowledged that the majority of corporate scandals descend from the faults of leadership, direction and control. Based on the above, we may ascertain that in our perception, under ’corporate governance’ it’s the legal facts or interests relevant in the course of the operation of the company what become regulated in terms of corporate law.
Key-words: company law, business law, corporate governance, state-owned company

JEL Classification: K20, K22

Article 3 - The distribution contracts: an Iberian approach


The contracts of commercial distribution are indispensable legal instruments to the development of the economic activity. The distribution, since the industrial revolution, acquired autonomy, given the necessity of specialized intermediation to distribute good and products. In this process, the structural organization of the distribution process suffered mutations, starting to assume a set of activities aiming at adjusting demand to supply, including, among others, clients canvassing, after-sales services, financing and assumption of risks, advisory services, promotion and advertising. The insufficiency of traditional contracts of purchase and sales and commission to satisfy the distributive needs caused by the industrial revolution will justify the development of new contractual schemes, such us agency contract, commercial concession and franchising. The obligation of the distributer to ensure the interests of the producer and to promote the distribution of the goods and services of the producer, in the context of a lasting relation of cooperation between the parts, through which the distributer is incorporated, with greater or minor intensity, in the producer distribution network, allowed us to sustain, as affirmed in the Portuguese and European literature, that distribution contracts could be framed in the same legal category. These contracts, as contracts that were shaped by praxis, do not have, with exception of agency contract, a legal framework in Portugal and Spain. It has been discussed in literature if agency contract legal framework can be applied, by analogy, to the contracts that fit in the legal category of distribution contracts. This paper aims at analyzing the legal framework of contracts of distribution in these legal systems, with the purpose to discuss the analogical application of the agency contract to these contracts.
Key-words: the distribution contracts, the concession contract, agency contract, franchise agreement
JEL Classification: K12, K22

Article 4 - Trends toward „individualization” of labour law


The paper aims to identify the trends of labor law to return to the individual and the impact of such trends on the trade unionism and collective relations. Because, in relation to the trend of increased individual aspects of labor law, manifested in many fields, it appears legitimate the question: does the collectivist paradigm still meet the postmodern industrial relations? The question is especially relevant in the context of a difficult communication of trade unions with society as a whole, and also in the context of increased competitive relationship between employees - factors likely to hinder the scope of trade unions and even the collective dimension of labor law. The paper aims at finding answers, perhaps even useful in shaping the future labor law.
Key-words: labour law; unionism; employment contract; workers.
JEL Classification: K31

Article 5 - Historic evolutions of the effects of the European Union political instruments in the Romanian legal order – effects of the mechanism for cooperation and verification


Since the accession of Romanian to the European Union, many unsolved problems related to the accountability and efficiency of the legal system and of the law enforcement bodies have been identified, a reason for which the European Commission justified the institution of a Mechanism for Cooperation and Verification as a political instrument for the monitoring and optimization of the progresses made by Romania to attain certain reference objectives specific to the field of reform of the legal system and the fight against corruption. This mechanism has been instituted to improve the functioning of the legislative, administrative and legal system and to repair the serious deficiencies in the fight against corruption. The goal of the mechanism for cooperation and verification was and is to ensure the adoption of those measures that may guarantee the Romanians and other member states that the administrative and judiciary decisions, standards and practices in Romania meet those of the European Union. The progresses made in the field of reform of the legal system and the fight against corruption will allow Romanian citizens and trading companies to enjoy their rights in quality of citizens of the European Union.
Key-words: juridical system; juridical order; legislativ procedures; Mechanism for Cooperation and Verification; safeguard clause.
JEL Classification:K33, K40

Article 6 - The relationship dynamics between legal positivism and the divisions of law, analyzed from a systemic perspective


This article is studying the dynamics of the relationship between legal positivism and the two divisions of law, respectively private law and public law. Legal positivism, envisions concepts of human intervention in the creation and application of the law, and so it finds application in both public law and private law. However, in private law, there are several principles which can be deduced from the doctrine of natural law, such as substitution, reversibility and others. To the contrary, in public law, legal positivism is all present, manifesting itself in all its branches. It is not, however, an exclusive presence, because there is a balance between natural law and legal positivism in each of the divisions of law. The two orientations of law, namely natural law and legal positivism coexist in each of the divisions and branches of the law, but with a different structure, dynamic or static, depending on specific branches of law. This paper presents in an analytical manner, the static and dynamic manifestations of legal positivism within the framework of the two divisions of law, namely private law and public law.
Key-words: legal positivism; public law; private law; general systems theory
JEL Classification: K10, K40

Article 7 - The fiduciary guarantee in the Romanian and European legal context


The importance of the fiduciary guarantee has not reached its full potential in the Romanian market, nor in the European area. The ongoing “dispute” between the fiduciary operations (familiar to the continental law) and the trust (with its common-law heritage) seems to be won by the latter. However, considering the express provisions on the fiduciary operations in the Romanian Civil Code entered into force in 2011, similar to the introduction of the same legal instrument in the French Civil Code in 2007, could give a boost to this ancient tool, present from the Roman era. Even if the European legal framework do not provide many rules on this institution, however, the Financial Collateral Directive raised many questions on how the fiduciary guarantees can be used in practice, and contributed to the change that followed in this area.
Key-words: fiduciary guarantee, beneficiary, collateral, trust, legal framework, Financial Collateral Directive, Romanian Civil Cod..
JEL Classification: K12, K22, K33

Article 8 - Good faith in corporate law – an independent fiduciary duty or an element of the duty of loyalty?


Taking the duty of loyalty as a starting point, which we consider to be the director’s core fiduciary duty, this paper aims at identifying the contours of good faith in corporate law and the interpretations of this institution in corporate governance. The objective of the paper is to demonstrate the autonomy of good faith, along with the duty of care and the duty of loyalty. The paper displays the traditional legal approaches of this institution, both in continental civil law and in common law literature and jurisprudence and exhaustively describes the obligations that compose or even define this concept. Due to its amplitude, the duty of good faith enabled courts to articulate subsidiary fiduciary duties that meet social changes and transformation within business law. By means of cited case law, the conclusion will show that due to the nature, content and effects of situations where specific obligations are met, these may not be incorporated as elements of the traditional duty of care or duty of loyalty.
Key-words: good faith, duty of loyalty, duty to duly inform, fiduciary duties, agency, directors' liability.
JEL Classification: K22

Articolul 9 - Shortcomings of lawmaking process in Romania.
Their influence on the rule of law


The study aims to analyze the main shortcomings that are found in lawmaking process in Romania. It will be structured in four sections, in which will be addressed, in succession, the requirements drawn from constitutional regulations in matters of lawmaking process in Romania, then the rules and principles drawn from the legislation of rules regarding the legislative technique. Further, reporting to the ideas expressed in the first two sections, there will be highlighted the worst shortcomings, by the content and consequences, and in the last part of the study will be revealed the negative effects they produce in the rule of law and, implicitly, on businesses environment. Also, there will be outlined several possible solutions and recommendations that should be considered in the future.
Key-words: lawmaking, constitutional rules, legal principles, shortcomings, rule of law, effects, business environment, law, types of law, legislative technique
JEL Classification: K10


Article 10 - The working time – various developments of the meaning of working time at the European Union level from a Romanian labor relations’ perspective


The working time is defined by the European Directive concerning certain aspects of the organisation of working time. The meaning of ‘working time’ and applicability of the Directive’s requirements was further clarified by the Court of Justice of the European Union in its case law, with respect to various situations such as: working time of the employees who perform work on call, working time of the foresters who are provided with tied accommodation within the range of forest within their purview and qualification of the time spent by workers when travelling from home to work. Over the past years such cases have been more often met in the employment relationships in Romania, especially as regards work on call and mobile employees. Since there are no specific legal provisions to clarify the legal regime applicable to such situations, whether and in which circumstances they represent working time and the corresponding rights and obligations of the respective employees, the study aims to analyse such situations from the perspective of the Romanian labour relations by comparing the European legislation and case law with the Romanian national legislation in view of finding some specific answers useful for the interpretation and application of the Romanian legislation in such specific cases.
Key-words: working time, rest time, work on call, mobile employee.
JEL Classification: K31

Article 11 - Considerations regarding the constitutional obligation determining the financing source for budgetary expenditures


This study examines the relation between constitutionality and opportunity in order to adopt regulations in matters of economy and finance. The analysis concerns in particular the regulation process on budgetary expenditures, respectively the constitutional obligation to indicate the source of financing for these expenses. The legal and jurisprudential landmarks identified are likely to reveal the delicate issues of balancing the concurring interests, as well as the constitutionalisation tendency of certain obligations imposed by the law of public finances and, respectively, the Fiscal Responsibility Law in the sense of transforming them into “constitutional criteria” through the application of Article 138 (5) of the Constitution.
Key-words: financing source, budgetary expenditures, constitutional review, opportunity, national budget.
JEL Classification: K10, K34

Article 12 - FIDIC contracts: analysis of the impact of general and particular conditions on the financial risk management in Romanian infrastructure projects


Construction projects are characterized by risks and uncertainties mainly due to technical and economic complexity. Risk management is an important tool in making decisions involving the identification and reduction, avoidance or transfer risk and uncertainties consequences of events that occurs during project implementation. For this reason, the objective of the contract between the beneficiary and the contractor is the allocation of risk. The distribution of risk in contracts for the execution of construction works was and is an ongoing challenge faced by parties having a significant impact on the type of contract is used. On the one hand, the beneficiaries tend to transfer to the contractors as many of the project risks and uncertainties, on the other hand, the contractors look to exploit any weakness contract, so as to reduce their impact on the expected profit. One of the most important risks assumed by the contractor by signing the contract which is also increasingly common in the current economic situation is the reduced financial capacity to support the project. A purely legal or purely technical interpretation is not meant to describe the complexity of issues related to implementation of construction projects. For this reason the authors have adopted a multi-disciplinary approach, which includes the legal issues related to the nature of the contract, but also the financial and technical aspects of construction projects. The paper aims to analyze how special contract clauses can influence the implementation of construction projects and in particular the financial management of contractors. The authors propose a model for analyzing the impact of FIDIC contract conditions applied on a case study of five transport infrastructure projects.
Key-words: risk, contract, FIDIC, time, cost.
JEL Classification: K12, K23

Article 13 - Application of international double taxation conventions in Romania


In this article we sought to address the international double taxation phenomenon from two different standpoints. To begin with, in the first part we analysed the framework of international double taxation, and how this topic was tackled in both Romanian and international literature. International double taxation has been analyzed, mutatis mutandis, from an economic perspective, more precisely in terms of the implications that it generates on economies, on added value, on capital flows, on the internationalisation of business. Second, I believed it was important to analyse international double taxation from a legal perspective, through the jurisdictional effects of obtaining income or holding property at the European or international level. Romania's case is carefully approached in this paper, aiming to highlight the issues Romania is facing concerning cooperation in tax matters with authorities from other countries, how the more than 80 double taxation conventions are applied and interpreted, but also other aspects that should be considered by the Romanian tax authorities, based on the provisions of the Fiscal Code and the Fiscal Procedure Code. The article ends by presenting, commenting on and analysing two test cases in international double taxation, of remarkable importance and actuality for Romanian jurisprudence to observe how complex double taxation mechanisms operate in practice. The conclusion of this article emphasises the importance of significant “steps” achieved by Romania on the path to creating a true “fiscal area” in the European Union, as well as the “corridors” that should be inserted to correct economic – legal and economic deficiencies and gaps, in order to strengthen the fiscal area.
Key-words: economic double taxation, legal double taxation, double taxation conventions, fiscal area, treaty shopping, taxpayer, income tax, capital tax.
JEL Classification: H24, H30, K34, K40

Article 14 - Analysis criminology customs offenses under Moldovan law


This paper aims to highlight the fact that crime, including that committed in the customs sphere, has a certain structure, made up of acts of smuggling and the evasion of customs payments, combined offenses under art. 248 and 249 of the Criminal Code of the Republic of Moldova. In addition, by presenting statistical data reveal that crime has a certain way, a certain dynamic (increases or decreases stationary). State and dynamics of crime are two Subconcepts criminology. If the structure crime of known composition and configuration phenomenon in a certain unit of time and in a certain space, dynamics helps to develop more realistic assumptions on the causes that generate or facilitate crimes, some forecasts on its deployment in the future, and effective means of preventing and combating the phenomenon. In the study they were used various research methods, including: analysis, synthesis, deduction, induction. In the study are advanced some proposals to improve the legal framework incriminating in developing tools for identifying features of criminal-law of customs offenses under Moldovan law, which led to the submission of proposals to improve the text of the law to prevent and combat crime in the customs sphere.
Key-words: customs offense, crime, smuggling, evasion of customs payments, social danger.
JEL Classification: K14, K42

Article 15 - The profound precariousness of work through temporary work agency


The increase in the number of atypical work contracts in the field of industry relationships, as part of a major European trend towards gaining more flexibility in the labour market, is significant and cannot be overlooked in most member countries of the European Union. This finding is corroborated by the recent surveys conducted across Europe, that reveal the prevalence of these flexible ways of organizing work, over the archetypal template of the individual work contract. However, this range of atypical contractual arrangements and the great number of versions and subcategories they include, are describing a number of negative features that seem to characterize these new forms of employment. Since the field of atypical employment is complex and we cannot analyse the incidence of these negative effects for all the atypical methods of employment, in the following article we will limit ourselves to explore the pressing issues related to the system of temporary work through work agencies. As we shall see, all aspects of the salary field, of health and safety at work and the level of insecurity and instability of labour through temporary work agency reveals a strong character associated with this kind of precarious employment.
Key-words: employment; temporary agency work; precarious work; atypical worker.
JEL Classification: K31

Article 16 - Business and human rights: from soft law to hard law?


Over the last decades the international community turned its attention towards the impact that businesses have on human rights, and the role they can play in furthering human rights protection, in light of the lead role they play in globalization, and the increasingly vocal allegations of human rights violations directed against some multinationals. These developments triggered some action at the United Nations, and at the European Union level, and led to the development of international soft law in this area, moving slowly towards binding instruments. This paper explores the evolution of business and human rights, presents the current international non-binding instruments, as well as some states’ binding initiatives in this area, and highlights the tendency to move from soft law to hard law, to leave the realm of voluntary corporate responsibility for the one of pure accountability. In this context, several solutions are debated by scholars: from a binding treaty, or a series of narrower treaties focused on specific areas, to a Model Law which could be used by states to enact laws imposing obligations on businesses within their jurisdictions, or even adding human rights in the international investment agreements and making use of the international arbitration as an enforcement mechanism.
Key-words: business and human rights, OECD Guidelines for Multinational Enterprises, UN Global Compact, UN Guiding Principles on Business and Human Rights, UK Modern Slavery Act 2015.
JEL Classification: K10, K22

Article 17 - Competence determined strictly by the law and the discretionary power of public administration


Competence related to public administration occurs when, in the presence of a given situation, the administrative authority enjoys no margin of freedom, being forced to act in a strictly determined by law. Sometimes the law may allow public authorities a wider or narrower margin of appreciation on a concrete situation. The article analyzes the conditions under which government can exercise discretionary power within the law.
Key-words: competence, discretionary power, public administration, administrative law.
JEL Classification: K23

Article 18 - Legal aspects of Brexit


The Brexit referendum vote has mainly political implications and no direct legal effect. The article 50 of the Treaty on European Union allows member states to withdraw from the European Union in accordance with its own constitutional requirements. After the referendum is a period of two years from the british notice of intention to withdraw to negotiate terms of exit unless all the other member states agree to extend it. Article 50 put the balance of power firmly in the hands of the 27 other states more than the leaving state. After the time limit in article 50 is expiring, Europen Union in theory law ceases to apply in the United Kingdom. In the same time, separating European law from british national law will be an complicated process.
Key-words: European Union, Brexit, withdrawal, alternatives
JEL Classification: K33

Article 19 - Theoretical and practical considerations on probation in labor disputes


Having the actori incubit onus probandi apothegm as a starting point, we shall examine the particular aspects of probation in work-related conflicts, as stipulated in the 272-273 Article within the 53/2003 Law regarding The Labour Code and 212 Article within 62/2011 Law on Social Dialogue. The objective of this paper is to examine distinct features related to the functions of evidence, to the set of fundamental principles which underlie the judicial proceedings of probation in work-related conflicts, as well as the active role of the judge in order to assure a righteous and fair trial. All the elements referred to will be regarded from historical, hermeneutic, teleological and comparative points of view. The specific character of regulations underpinning the management procedures regarding probation in work-related conflicts, differing from the provisions under statutory law, highlights the legislator's choice towards establishing a simple and urgent procedure. It should be adjusted to the work terms and to the individual right to work, representing a genuine guarantee for bringing the law claims which derive from adequate or inadequate performance of individual or collective contracts, performed by the employer. Examples provided by judicial practice uncloak the difficulties encountered by both parties of the trial and court when it comes to enforcing the specific provisions for the application of the legislation, fact which is not always compatible with the legislature’s aim, by means of regulation.
Key-words: labor disputes, social dialogue, labor law, burden of proof..
JEL Classification: K31, K41

Article 20 - Examination of judicial practice on the exercise of parental authority by a single parent


The specific objective of the present study lies in identifying how respected the principle of joint exercise of parental authority, enshrined in the Romanian legislature. The aim of Civil fundamental rule is to recognize the active participation regarding compliance by the parents of the right to psychological and physical welfare of their children, growth, education, training and their health. Analysis interests of the child enshrined rule that parental rights are not only father but also parental duties so that this breach legal obligations should be duly reasoned. Knowledge of basic civil complying with the requirements resulting from commitments made by Romania in the European integration process and the new status of our country's membership of the European Union. Jurisprudence should share the idea that joint parental authority is the rule and the exception exclusive. The availability principle in subsequent civil trial must be the protection of the interests of the child. Just this social reality we can talk about a Europe constituted by and for children.
Key-words: child, parental authority, the child's best interest, dignity, freedom of opinion.
JEL Classification: K36

Article 21 - Issuance and transmission of the European protection order by the Romanian judicial authorities. Some critical opinions. De lege ferenda proposals


The objective of the study aims at examining the provisions of Law no. 151/2016 on the European protection order and amending and supplementing certain legislative acts, starting from the transposition into the national law of the provisions of the European legal instrument. Also, in this study we have formulated some critical opinions, supplemented by de lege ferenda proposals which aim the improvement of the national criminal legal system. The innovations consist of both the conducted examination, supplemented by the interpretation of provisions of the Romanian law, the formulated critical opinions and the de lege ferenda proposals. The paper can be helpful to academics, particularly students of law faculties and practitioners in the field.
Key-words: protection measure; protected person; issuing State; executing State.
JEL Classification: K14, K33

Article 22 - Some considerations on the legal qualification of the contracting authority


The present study makes an analysis of the concept of contracting authority in the context in which the legal definition of this concept leads, in several specific cases, to doubts and the impossibility of correct application of the law when one puts into discussion the local authorities and some legal persons of public law who have a well-defined legal status. Both situations create real difficulties in practice by the correct application of public procurement law so that it may challenge these parts of such public contracts even if they are of good faith and desire the fair enforcement of law.
Key-words: contracting authorities, procurement, local authorities, legal persons of public law.
JEL Classification: K12, K23


Article 23 - Land lease contract and prior right of lessee to concluding the new land lease contract - case of Slovakia


Land lease is one of the few possible ways to use the agricultural land effectively. This is caused by problems in the proprietary and user relationships, therefore the agricultural land lease and its legal regulation is especially important for Slovakia. This paper deals with the selected legal arrangements related to the agricultural land lease in Slovakia with an objective to identify application problems faced by lessees and lessors of agricultural land. When regulating the agricultural land lease relationships, the Slovak law maker prefers dispositive legal norms. However, this method is rarely used in the application practice. Contracting parties often focus only on obligatory characters of the contract, relying on the legal text of dispositive provisions. The legal arrangement of the lessee’s prior right to sign the new lease contract attracts a particular attention. Current legal regulation of this lessee’s right seems to be unenforceable; on the other hand, it collides with the basic human rights. This provision needs to be either cancelled or adjusted so that it achieves the objective defined by the law maker and so that it is legally enforceable in compliance with superior legal norms.
Key-words: agricultural land, land lease, land lease contract, prior right of lessee.
JEL Classification: K12

Article 24 - Bio-ethical principles of medical law with an emphasis on the law of Iran


There has been many talks about the necessity of ethics in all affairs, especially medical affairs which deal with the lives of individuals and the society expects Medical Group to be abide by morals more than laws. This matter indicates on the fact that the society considers ethics as a stronger enforcement of the law and deplores a doctor who has ignored ethics in the medical profession. Thus, they blamed the doctor from ethical aspect more than deploring him from a legal aspect (civil or criminal liability). The legislator is also influenced by public in anticipation of responsibility (both criminal and civil) for doctors and imposes legal rules on this basis. The concept of this article has an extremely close relationship with three concepts of morality, professional ethics and law. Initially first two concepts will be defined and separated and then the relation between professional ethics and medical laws will be expressed. Then, the relation between two concepts of medical ethics and bioethics ethics will be evaluated. Two religion or secularism basis have been taken for medical rights and strengths and weaknesses of each are discussed and the approach of the Iranian legal system will also be mentioned with evaluation of controversial medical samples.
Key-words: medical law, bioethics, professional ethics, Doctors, patients.
JEL Classification:K32

Article 25 - The human rights and the terrorism


Regarding Human rights has been emphasized by governments through universal declaration human rights and its violations faced the global reaction in any case. From this perspective; the necessity of observing human rights against  terrorism  has  been emphasized by many resolutions of the General Assembly, the Security Council and many regional resolutions. But, today especially after the September 11 events and America unilateral attacks by resorting to human rights and of course by considering the lack of international agreement on the norms, strategies and principles of human rights, the campaign against terrorism has started on the basis of its obligations, regardless to existing norms. So it would be said that today; the war against terrorism more than any other terrorist attacks threatens the security and human rights. However,  human  rights framework has never prevented effective and legitimate actions to the terrorist attacks. In other words; in the human right framework, there is no conflict with the campaign against terrorism, it emphasizes on identifying and fighting and even it guarantees the effectiveness of such a fight. As a result, Human rights violations at the expense of security, certainly associated with the destruction of both.
Key-words: human rights, terrorism, 11 September, regional and international conventions and organizations.
JEL Classification:K10, K33

Article 26 - The balance between the parties in Law N° 2015/018 of December 21, 2015 governing the commercial activity in Cameroon


On the 21st of December 2015, the Cameroonian legislature adopted Law N° 2015/018 with the aim of modernizing the mechanisms put in place for the supervision of the commercial activity in this State. This modernization results in the establishment of tools aimed at eliminating situations which are detrimental to the contractual balance. The idea behind these provisions is to reinforce the clarity and integrity of consent when concluding the contract, while at the same time eliminating the abuses that have endured during the conclusion. However, the assessment of these measures reveals a diminished efficiency. These shortcomings are due to two reasons: the discrimination against the protection of victims of the imbalance according to the "consumer / professional" distinction made and the lack of instruments to restore the balance in the contractual relationship of the parties.
Key-words: Contractual Balance - Weaker Party - Significant imbalance - Unfair terms - Evidence.
JEL Classification: K2, K12, K42

Article 27 - Investigating possession of human blood as a property in Iran’s law with regard to legal and Islamic jurisprudential  commentaries on organ transplant


A question that most of jurists are faced with is, whether human blood is basically a property or not and is human the owner of his blood? Moreover, what is the difference between blood and other organs of the body from the viewpoint of ownership? If blood is a property, why human is not the owner? Unlike blood, there have been legal discussions on organ sale, where blood can be retrieved by the body while segregated organs are not retrievable by the body. Investigating various views about ownership of organs of the body, one can conclude that blood is a property owned by humans.
Key-words: organ transplant, human blood, property, possession, proprietorship of blood..
JEL Classification:K11, K32

Article 28 - The investigation of committed crimes against “Myanmar’s Rohingya" and the invoke necessity to" The theory of responsibility to protect"


For several decades, the Rohingya ethnic minority, in "Myanmar's Rakhine state" is exposed to the systematic violence by the state and governmental agents. The intensity of this violence was emerged in June 2012 and attract the international community attention towards of the Myanmar's country. The theory of responsibility to protect, is the primary responsibility to protect of the people against the four major crimes, including genocide, war crimes, crimes against humanity and ethnic cleansing which are in charge of the each country state. At the same time, in the absence of willing or clear ability of the mentioned government, the international community has a responsibility to act under the Charter of the United Nations and in accordance with the charter provisions to prevent or stop of th e mentioned crimes. According to the necessary urgent support from the Rohingya, in this study, in addition to explain the concept of theory of responsibility to protect, the possibility of international crimes against of them is examined and whereas with regard to this question whether in the Myanmar’s Rohingya situation, there is the invoke condition in terms of the theory of responsibility to protect or not, indeed, whether the international community can invoke to protect them with regard to this theory or not, will be answered.
Key-words: Ethnic minorities, The Rohingya, Myanmar, Genocide, Crimes against humanity, Theory of responsibility to protect.
JEL Classification:K14, K33

Article 29 - Considerations regarding the creative intention in unilateral legal acts by deciding the separation of intention and consent


In legal systems, the intention of people in certainty of legal performance plays the main role and the contracts & transaction attributes to persons' intention as the general & public principle. The people by their intention establish obligation & undertakings for themselves and others in the frame of contracts & unilateral obligations, in the realm of law to obtain the commitment force for his/her intention that causes establishing the commitments and the responsibilities of the peoples. The volition is consisted of intention & consent elements for establishing the commitment, in other words each of these elements, intention and consent are efficient in the situation of legal act through canceling or lack of legal act influence. The quality of this effecting and performance guaranty of the lack of each main conditions in certainty of the volition in the field of contracts have been considered and the rule in the field of contracts has been clarified in civil code but in unilateral obligations, in respect of unilateral obligations, there are some ambiguities in the role and clarifying basic conditions which these ambiguities are the results of leaving unsaid the many regulations about unilateral obligations in civil code by the jurisprudents and the legislators. In this article creative intention in unilateral obligations to be surveyed and it would be a step for clarifying the opposed and agreed views.
Key-words: creative intention, legal act, unilateral obligations, ruling of free volition, unilateral intention, unilateral commitment.
JEL Classification: K10, K40


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