
Revista editata de:

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
|
|
Rezumat
The following study intends to analyse the evolution of theories regarding the
recognition of states in international law. Whereas the Montevideo Criteria contains the
legal requirements for statehood, recognition is largely dependent on the political will of
the other states. The question faced by the contemporary international community is
whether a state is held to recognise another if it meets the said requirements. While the
Constitutive Theory insists that a state could only exist as an international legal person if it
is recognised by previously-established states, the Declarative Theory rejects such a
discretionary process. While the common practice among states was argued to be
somewhere in the middle of these two theories, the declarative conception is much closer to
the current model followed by the international community as it is also enshrined in the
rules contained in the Montevideo Convention and reiterated by the Badinter Commission.
Key-words:State recognition, Montevideo Convention, declarative theory,
constitutive theory, international law.
JEL Classification: K10, K33, K39
Rezumat
Worldwide, the entrance restrictions for foreign investment were eliminated or
restricted in a wide range of industries, especially mining (among other fields such as
aviation, financial services, real estate). Foreign investors still remain reluctant to
placement of investments in developing countries, shall be required also to seek host
countries with a certain degree of stability in the existence of international treaties on
investment In conclusion, it is emphasized that the investment environment must
substantiate its order and hierarchy on a set of regulations with a mandatory character, as
the soft law regulations, such as conduct codes of the transnational companies, the project
of articles regarding the responsibility of states of the International Law Committee, the
arbitrage practices (that does not admit precedents) or other acts without mandatory force
have proven insufficient. An especially important role is played by the common effort of
experts to expose all the forceful positions, as well as the vulnerabilities of all the actors
involved in international investments, so that, through a full and objective analysis of these
aspects, firm regulatory solutions may be extracted.
Key-words: foreign investment, mining, international treaties, national security
JEL Classification: K11, K23, K33
Rezumat
The work starts from the legislative framework of the principles of nondiscrimination
and equality of chances between men and women in our country, presenting,
at the same time, synthetically, the public authorities authorized with the application and
control of the application of the law regarding the equality of chances. Given the obligation
imposed by the European Directives of the E.U. member states, to modify or update the law
so that all the European citizens would benefit of the same protection against
discrimination, it is also presented a famous case study regarding the ethnic or religious
discrimination – The Decision of the Paris Appeal Court of 19th June 2003. This cause
demonstrates the good application by a French civil jurisdiction of the dispositions
regarding the civil sanctions of the discriminations based on religious beliefs. However, at
the level of the E.U. member states, in certain cases and fields, the legislative framework is
not always enough to ensure the equality of chances, being necessary changes of mentality
and behavior, as well as firm and varied political actions, in order to sensitize the involved
public and institutions regarding the significance of the insurance of the application of the principles of non-discrimination and equality of chances.
Key-words: Non-discrimination, equality of chances, the ethnic and religious
discrimination, diversity, conciliation of the professional and private life
JEL Classification: K10, K33
Rezumat
Today, "right to social security" is directly related to responsible governments that
have been highlighted in international documents. It is the responsibility of the government
in international relations and they are required to provide this right to all its citizens. The
issue of “right to social security" is considered more in the second generation of human
rights. The authors of this article are believed, governments are responsible of toward the
right to social security situate the exact study. The main hypothesis of this paper is that the
right to social security in international documents as a principle of human rights and the
second generation of human rights. Unlike the first generation, fundamental freedoms that
governments are focusing on non-interference in the second generation of human rights,
government is responsible for social security for all its citizens without any discrimination
and committed to the international instruments, are accountable. The authors conclude that
administration to avoid war, violence, social justice, reduce class conflict; poverty and
human dignity, the right to social security as a human right recognized in international
instruments and governments are responsible for social security for all citizens.
Key-words: right to social security, responsibility of governments, international
relations, human rights.
JEL Classification: K10, K33
Rezumat
This study analyses the legal force of mediation clauses in the common law
systems and civil law systems with a main focus on the Romanian approach. First, the
introductory section illustrates the paradox between the concept of binding and mandatory
effect and the mediation mechanism, a voluntary manner to settle disputes.
Notwithstanding, the possibility to coerce the parties to engage into a mediation, the
voluntary character of the process is illustrated by the parties’ freedom to decide whether
they settle or not. Second, the role of mediation clause is analysed and its advantages are
briefly described. Third, the non-compliance of the prior mediation mechanism is
presented, the starting point of the discussion being represented by the manner in which the
parties drafted the mediation clause. A carefully drafted mediation clause, reflecting the
parties’ consent, can determine a court or an arbitral tribunal to enforce such clause.
Fourth, the study ends by mentioning the approach adopted by different national courts,
emphasizing the Romanian legal perspective.
Key-words: mediation clause, mandatory, non-compliance, voluntary process.
JEL Classification: K12, K40, K41
Rezumat
Recent developments in Arab countries have provided new opportunities and
possibilities for the transformation of the political climate, security and change the balance
of power in the region. Since the beginning of 2011, the Middle East has witnessed major
developments and serious changes. The main changes resulting from the Arab Spring in the
Middle East can be "crisis development" in the region. Different approaches have been
presented on the reason of the crisis in the Middle East, especially political and security
developments in Syria. By 2011, signs of civil disobedience and political upheaval in the
Middle East have been observed on the agenda of planners. From 2011 onward, identity
components provided the context for civil disobedience radicalization and thus social
violence has been formed in the form of security policy of radicalized groups.
Key-words: security crisis of Middle East, the Arab Spring, Identity-Oriented Actors,
Cooperative Security, crisis of identity and legitimacy
JEL Classification: K33
Rezumat
The right of retention has in the current legislation his own regulation, which finds
its sources in jurisprudence and doctrine. The necessity of regulating this right comes from
its practical utility, its efficiency as a legal mechanism being also taken into consideration.
The present article follows general aspects and exceptions concerning the right of
retention, aspects intending to draw the outlines of the meaning of the right of retention.
Furthermore, the domain of enforcement of the right of retention has been taken into
consideration, starting from specific legal disposition, which are derogatory from the
ordinary law.
Key-words: right of retention, guarantee, exception, abusive exercise
JEL Classification: K11, K40
Rezumat
Iran criminal law and United States of America have considered the threat as a
crime and have imposed the penalty for it. The threat importance is considered in where that
from one side the persons and civilians in accordance with domestic laws and international
documents are involved very important right entitled of "Freedom of speech" and the
mentioned rights violation is associated with domestic and foreign criminal sanctions and on
the other hand, the expression of some words or commit a certain attitude with them and in
accordance with the same laws are prohibited and to be considered as the criminal threat.
However, the laws of both countries have adopted different approaches regarding the
circumstances realization of the mentioned crime and some of its examples, although in some
criminal threat characteristics such as lack of necessity to apply the means are unlawful and
have similarity in its intentionality. In order to detailed understanding of the similarities and
differences of criminal threats in Iran and America laws, which leads to the identification of
existing disadvantages and advantages and providing the strategies regarding the
deficiencies of the current laws and trends, so we are investigating the structure and threat
features in criminal law of both countries.
Key-words: criminal law, threat, loss, intimidation, assault.
JEL Classification: K14, K33
Rezumat
The study tries to highlight the specificity of the criminal laws of foreign states in
the area of customs criminalization. The author discusses the criminal regulations in the
laws of some Western European, Central European, Asian states, as well as in the
legislation of some ex-Soviet states. The analysis carried out aims at: investigating the
incriminating framework in the field of criminal offenses in the criminal law of some
foreign states; determining the similarities and differences between criminal laws under
analysis; identifying the legal problems by comparing the incriminating framework
registered in the Criminal Code of the Republic of Moldova with those included in the
criminal laws analyzed; taking good practice. Different research methods were used in the
study, including: analysis, synthesis, deduction, induction. However, the most used method
was comparative considering the specifics of the subject under investigation. In order to
intensify the fight against the phenomenon of crime in the customs sphere, some proposals
have been advanced to improve the legal framework of incrimination. All this is a
consequence of taking good practices from the comparative analysis of criminal regulations in the field of customs offenses.
Key-words: customs offence, criminal provisions in criminal laws of foreign states,
smuggling, evasion of customs payments.
JEL Classification:K14, K42.
Rezumat
The role of women is examined by referring to the executive power of family courts,
in fact their ultimate power, and by the reason why input issues in these courts face legal
weaknesses. This article begins with examining the constitution and posing some questions.
We are in search of an answer to the first question regarding the status of women in
constitution, referring to the significance of this place from the perspective of a lawmaker.
We follow the article by examining the twentieth and twenty-first principles and posing some
questions. For example, a question raised is that why equality of rules for men and women,
which is discussed in the constitution, is not observed in statutory laws in practice. By
exploring different theories on the twentieth principle of the constitution of the Islamic
Republic of Iran, we investigated a clause from the twenty first principle. Also, by posing
some questions, we tried to conclude if women in Iran get their material and spiritual rights.
By a quick look at the development statistics, we analyzed the clause of the twenty-first
principle, mentioned rights of this stratum of society during pregnancy and came to a conclusion by their examination. We pursued by raising and reviewing the questions on
custody along with studying the legal materials around this issue. Finally, we examined
women's inheritance. After selecting and collecting the presented articles, we can created
another definition in the men and women's minds about the rights and change their attitude
regarding their lawful and conscience right if law makers pay attention and try to improve
the civil laws on this specific issue. We can also solve family issues through arbitration and
observe the increasing clients' reduction to the family courts.
Key-words: family, women's rights, laws, inheritance.
JEL Classification: K10, K36
Rezumat
Since its entry into force and to date, Law no. 215/2001 on local public
administration has undergone many amendments and completions. One of the questionable
additions to this act is done by GEO (OUG) no. 41/2015, a regulation which brought two
new articles to the body of the framework-law on local public administration, i.e. Article
55¹ and Article 99¹ . These two articles regulate a unique way of establishing the local or
county council, namely by reconstituting these autonomous collegial bodies. This article
examines the legislative intervention made by GEO no. 41/2015 and highlights the
unconstitutionality aspects of this legislative intervention, recommending the legislature to
urgently repeal the regulations governing the reconstitution of the local and county
councils.
Key-words:local administration; deliberative authority; election; reconstitution;
unconstitutionality.
JEL Classification: K10, K23
Rezumat
Affair problems with foreigners in the country, according to the authors own survey
shows a lack of consistent practice Court with the author's comments, as well as global
developments in this area, to examine the issue from a theoretical and practical layout and
helpful as well. In this article, after the introduction, the first part under the laws, to review
current regulations with records historic them. In the second part, the authors studied the
doctrines and opinions. In parts of third place Law and private international foundations in
Islam as New Law International expressed particular Islam. Examples of performance Court
and advice office legal representative of the Iranian judicial procedure, the fourth paper
forms. In the debate of comparative law solutions offered by law in France, Switzerland and
Germany as well viewpoint of each was investigated. In the end, the conclusion is that
according to law of Islamic Republic of Iran and global developments in determining of law
governing personal status, it is necessary to interpret Article 7 of Civil law profound changes
be made in accordance with the current situation in Iran and the world.
Key-words: personal status of foreigners, private international law, Islamic law,
civil law
JEL Classification: K33, K36
Rezumat
Within the present study we have examined the provisions concerning the
objectives and duties of Europol, a fundamental institution with special responsibilities for
preventing and fighting crime and especially the organized crime at EU level. These
provisions are set out in Regulation (EU) 2016/794 of the European Parliament and of the
Council of 11 May 2016, a relatively new legal instrument, by which there were repealed
other European legal instruments regulating the Europol activity. The conducted
examination includes some critical comments concerning in general the need to broaden
Europol's jurisdiction regarding the enforcement of the coercive measures in cooperation
with police authorities of the Member State in which operational activities are carried out.
At the end of the article, it is emphasized the need to adopt a new European legal
instrument regulating the organization and functioning of Europol and the need to engage
more effectively in this line with each Member State, with the reservations raised by the
criticisms made. The paper may be useful to practitioners in the field, and equally, to
academics and the European legislator. Key-words: judicial cooperation in criminal matters; the European Union member
states; jurisdiction; police.
JEL Classification: K14, K33
Rezumat
This Paper is written against the background of the need to strengthen Nigeria’s
tax laws for optimum contribution to public revenue and economic development in an era
of widespread tax evasion and economic recession. The Paper has found among other
things that defects and loopholes that exist in the Companies Income Tax Act (CITA) is the
occasion for widespread tax evasion, the arbitrary and discriminatory application of the
Act, and the political manipulation of the process. The result is that the Act is completely
encumbered in achieving its objectives. To eliminate these encumbrances, the paper has
recommended, among other things, the amendment of the law to place the wide
discretionary powers of the president to impose on or exempt companies from taxation
under the supervision and authority of the National Assembly and to place the powers of
the Federal Board of Inland Revenue to distrain properties of defaulters under the
jurisdiction of the courts.
Key-words: tax laws, economic development, recession, investments, civil liability.
JEL Classification: K22, K34
Rezumat
In the present study we have examined the specific provisions for certain
investigative measures that may be subject to a European investigation warrant in criminal
matters provided for in Directive 2014/41/EU of the European Parliament and of the
Council of April 3, 2014 on the European criminal investigation order. Thus, we have
examined each investigative measures provided in the European legal instrument through
the national legislation of Romania, as in the terms of transposition of this legislative act
into the Romanian law. The examination of the European legislative act allowed us to
identify some dysfunctions in the settlement of some provisions, malfunctions which in the
judicial practice of Member States’ competent institutions will cause numerous problems,
both of interpretation and application. Among these we only highlight the lack of concrete
provisions that oblige the judicial authorities of the countries involved in the issuance and
execution of a European investigation order in criminal matters, to provide legal assistance
to the persons who are conducting such procedures. In this context, we have formulated a
series of critical opinions, complemented by appropriate de lege ferenda proposals, which may be useful to the European legislator from the perspective of amending and
supplementing this legislative act. We have also stressed on the need of transposing the
European legislative act into the Romanian law by adopting a special law and not by
amending some provisions of the Criminal Procedure Code. The innovations in the paper
refer to the examination of the investigative measures that can be arranged by issuing a
European investigation order in criminal matters, formulating some critical opinions and
appropriate de lege ferenda proposals. The paper can be useful to the academics,
practitioners in the field, especially to the European legislator from the perspective of
amending and supplementing the European legal instrument and also to the Romanian
legislator that will have to transpose this legislative act into the national law.
Key-words: investigative measures; crime; cooperation; European Union member
states.
JEL Classification: K14; K33
Rezumat
The Code of Criminal Procedure provides some exceptions, from the general rule
according to which any persons can be heard as witness, as there are certain persons that
can not become witnesses in a criminal trial; these persons are as follow: persons that can
not be heard as witnesses and persons that are entitled to decline to testify. We consider
that the stipulations of the current Code of Criminal Procedure regarding the persons that
can not be forced to testify in some criminal cases is criticisable in terms of requirements of
legislative technique regarding the usage of a concise, clear style and a correct
terminology. Also, in order to correlate the stipulations of the Code of Criminal Procedure
with the ones of the current Criminal Code, we propose, de lege ferenda, a modification of
the criminal procedural stipulations regarding the persons that can refuse to testify as
witness, by using the expression “family member of the suspect or of the defendant”..
Key-words: witness, criminal trial, family member, the current Code of Criminal
Procedure, the current Criminal Code.
JEL Classification: K14
Rezumat
In art. 16 paragraph (1) – (4), the new Romanian Criminal Code refers to some
psychological processes, such as representation and willpower, which lead us to believe
that the psychological theory of guilt has been preserved, being also mentioned in art. 19 in
the old Criminal code. This theory of guilt has known many tendencies over time, entering
our doctrine and legislation as the theory of representation. According to this theory when
someone wants to do a certain physical act he foresees the consequences of that act,
meaning that in his mind he has the representation (the image) of the natural consequences
following that activity, and this representation of the result, the finality of the willful
activity, is an act of conscience accompanying the act of will. These are reference points to
be taken into consideration when the judiciaries analyze the criminal guilt whenever an
offence has been committed under the criminal law.
Key-words: guilt, theory of representation, conscience, willpower, normative
theory.
JEL Classification: K14
Rezumat
In the present study we have examined the provisions of the European legal
instrument governing the right of access to a lawyer within the criminal proceedings in a
Member State of the European Union, especially in situations where against the person
concerned it was imposed a measure of deprivation of liberty and the right to have access
to consular authorities, the right to inform a third person and the right of access to a
lawyer in execution proceedings of a European Arrest Warrant. With the actual
examination of these provisions, we referred also to the provisions of law, emphasizing the
differences of the existing regulation and the need to transpose the European legal
instrument into the national law by a separate legislative act and not by completing the
special law, as it is intended at the moment. The innovations consist of examining the
European legal instrument focusing on the right to have access to all the criminal
proceedings, with reference to relevant national legislation, including the procedure of
executing a European arrest warrant. The paper can be useful to academics, practitioners
in the field and to the Romanian legislator from the perspective of transposing this European legal instrument into the national law.
Key-words: suspected or accused person, the right to defense, the right to
communicate with consular authorities, lawyer.
JEL Classification: K14, K33
Rezumat
The article, analyzing the administrative litigation in the comparative law, groups
the existing types of administrative litigation into four major systems, namely: a) States with
administrative jurisdictions who have the State Council on top, administrative body with
consultative and judicial role (the French system); b) States with administrative jurisdictions
completely separated from the active and consultative administrations (the German system);
c) States with administrative jurisdictions included in the judicial system; d) States with no
administrative jurisdiction (English system). The administrative contentious systems
analyzed have developed in line with historical evolution and legal traditions and have been
continually adapted to the realities existing in each state. The manner in which the
administrative contentious is regulated in a State reflects the degree of democratization of
that country, the extent to which the citizen enjoys legal safeguards to defend himself against
abuses by public authorities. The scientific novelty of this article is to capture the latest trends
in the evolution of the administrative contentious systems analyzed. This study aims to provide an easy working tool for reforming administrative litigation on comparative law in
states with young democracy. In the research we used the comparative method, the historical
and the logical method.
Key-words: administrative litigation, comparative administrative law, judicial
system, dualist law system, administrative jurisdictions
JEL Classification: K23, K33, K41
|
|
|