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Societatea de Științe Juridice și Administrative



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


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Volume 7, Special Issue, October 2017

Cuprins



Articolul 1 - Romanian, Polish and German judge disqualification
in disputes of administrative litigation

Rezumat

The subject matter of this article is to compare the regulations of Romanian, Polish
and German guarantees of the right to an impartial court within the context of a judge
disqualification in a court-administrative proceeding. The comparison of Romanian, Polish
and German regulations pertaining to judge disqualification in court-administrative
procedure leads to a conclusion that there are some significant distinctions among those
regulations. It is worth noticing that the Polish court-administrative procedure is the only
one, out of the three analyses systems, which could be featured as fully autonomous. At the
same time both the Romanian as well as the German regulations depend on a reference to
their civil procedures. On a side note, a reference to the provisions of the civil procedure
also existed in Poland, until 2004, when the current Law on Proceedings Before
Administrative Courts entered into force. All three legal systems underline the importance of
the regulations on the judge’s professional status within the context of providing conditions
for impartial adjudication.
Key-words: judge disqualification, administrative litigation, impartiality of judges,
comparative administrative law.

JEL Classification: K23, K41


Articolul 2 - Purposes of double taxation treaties and interpretation
of beneficial owner concept in Ukraine

Rezumat

The term ‟beneficial owner” has been interpreted by Ukrainian courts concerning
the application of double taxation treaties’ provisions since the adoption of the Tax Code of
Ukraine in 2010. Changing nature of the beneficial owner concept, its importance as an
instrument for treaty shopping counteraction and the necessity of its proper interpretation
in the Ukrainian reality are the main factors that have a strong impact on the development
of court practice concerning beneficial ownership. The article focuses on the prevention of
tax avoidance as one of the purposes of double taxation treaties and its role in the
interpretation of the term ‟beneficial owner”. The analysis is based on the practice of the
Supreme Administrative Court of Ukraine on interpretation of the relevant provisions of the
Convention between the Government of Ukraine and the Government of Switzerland on
Avoidance of Double Taxation with respect to Taxes on Income and Capital as of 30
October 2000.
Key-words:interpretation, purposes of international treaties, double taxation treaties,
beneficial ownership.

JEL Classification: K33, K34


Articolul 3 - Claims settlement in insurance contracts from a consumer
protection perspective in Cameroon

Rezumat

Everyone in the society is faced with the possibility of one or more hazards that
are part of life will sooner or later befall him and may occasion some loss. This misfortune
is uncertain as to the time and period when it will occur and this amongst others include:
fire outbreak, accident, and even death. This necessitates the need for people to go for
insurance policies which suit their various needs in order to permit compensation in case of
loss. Most consumers of insurance products are “short changed” in the process because
very few take the trouble to read through their insurance policies in order to ascertain and
understand the terms and conditions. The result is that most often when a claim arises and
it is discovered that the loss is not covered by the terms of the insurance contract, there is
the tendency of blaming the insurance companies. This paper posits that: there are of
course some “bad eggs” in the industry who manipulate consumers. However, the paper
holds that this unpleasant quagmire is often due to lack of understanding of the terms of
insurance contracts in general and consumer apathy in particular. The essence of this study
is to re-iterate the need to communicate the rules of the insurance game, thereby
minimizing some of the misunderstanding and problems faced by consumers.
Key-words: claims settlement, consumer protection, insurance contracts, Cameroon
JEL Classification: K12, K15


Articolul 4 - The General Agreement on Trade in Services (GATS)
and international trade in health services.
Impact and regulations

Rezumat

This article is interested in studying the impact of trade agreements on the quality
of health services, and the statement of the role of the Ministry of Health to protect the
quality of these services. The problems that arise in this study; how the application of
GATT on trade in health, and services? This article also includes the impact of
international trade agreements on the issue of attracting foreign investments in the field of
health, and to clarify the government's ability to maintain the health and political, and the
capacity of national health products to compete with foreign products. 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 studying. The study ends by mentioning that although so far only a few countries
where trade in health services has a major role, trading. However, there seems to be
agreement that is wide enough, with respect to health services. Furthermore, Trade
liberalization -or privatization - can may lead to the development of second-degree health
care system.
Key-words: gats agreement; health services; health policy; the TRIPS agreement
JEL Classification: K13, K32


Articolul 5 - Theoretical explanations and practices regarding the distinction
between the concepts: judicial error, error of law and
fundamental vice in the legislation of the Republic of Moldova

Rezumat

In the research, a doctrinal and legal analysis of the concept of legal error is
carried out. The author provides a self-defined definition of the concept addressed and
highlights the main causes and conditions for the occurrence of judicial errors. At present,
in the specialized legal doctrine of the Republic of Moldova, the problem of defining the
judicial error has been little approached. In this respect, this scientific article is a scientific
approach aimed at elucidating the theoretical and normative deficiencies and errors that
occur in the area of reparation of the prejudice caused by judicial errors. In order to
achieve our goal, we aim to create a core of ideas and referral mechanisms that ensure a
certain interpretative and decisional homogeneity in the doctrinal and legal
characterization of the phrase "judicial error".
Key-words: judicial error, court, judge, criminal trial, judgment, jurisdiction, criminal investigation.
JEL Classification: K41


Articolul 6 - Land associations in Slovakia

Rezumat

The land fragmentation is one of the serious problems in Slovakia which is given
by the historical development of the land law. In the past, landowners tried to solve this
problem by creation of various forms of land associations oriented to the common
cultivation of agricultural land and forest land. Nowadays, the Slovak lawmaker decided to
regulate the institute of land associations by the law. Land associations in Slovakia are
legal entities conducting agricultural business on agricultural land, forest land or in water
areas; moreover, they can provide also other business activities according to particular
legal regulations. Land associations conduct business on real estate property or, more
commonly, properties, which are usually owned by many co-owners, because the individual
cultivation of small part of land plots would not be effective. However, the law is a subject
of legal amendments more often than necessary in order to ensure the legal certainty. This
paper introduces this recondite legal entity, its activities, its internal government and the
ownership rights of its members. A pre-emption right that has a special legal regulation
different from the general legal regulations of the pre-emption rights in the Civil Code is
one of the special issues..
Key-words: land association, agricultural land, legal regulation, owner of the common real
estate property, land fragmentation.
JEL Classification: K12



Articolul 7 - Legislative framework of green public procurement
and Europeanisation of the Slovak practice

Rezumat

Concept of green public procurement is promoted by the European Union and it is
a voluntary tool applicable in public administration that can bring environmental, social
and economic benefits both at European and national level. The paper analyses EU and
Slovak legislative framework of the green public procurement and Europeanisation of the
Slovak practice. Normative analyses was used as a method to assess the current EU and
Slovak legal norms regulating the concept of green public procurement and mutual
interconnections have been identified between European and Slovak legal institutes. The
findings show that the Slovak republic already has initial experience with green public
procurement implementation and the impact of the EU had been proven. Directives
dominate as legal acts in the EU legal framework of green public procurement. The EU
legislative framework is based especially on a possibility to implement the concept of green
public procurement. However, obligatory norms are gradually being promoted. This fact
can predict progressive change de lege ferenda and the need for flexible adaptation of
public administration systems in the Member states. Evidence from the Slovak practice
shows direct transposition of provisions and further development of green public
procurement with the focus on the Slovak priorities.
Key-words: green public procurement, legislative framework, Europeanisation.
JEL Classification: K32, Q58



Articolul 8 - Examination of the law relating to protection of bank deposits,
liquidation and winding-up of banks in Nigeria

Rezumat

This paper is written against the background of frequent bank failures, mergers
and winding-up of banks which have caused a great deal of apprehension in the minds of
bank customers, depositors and creditors in Nigeria. The paper therefore is aimed at
interrogating the legislative intervention in this regard and in particular the role that the
Nigeria Deposit Insurance Act has played in mitigating the uncertainty and hardship that
has been occasioned by incessant bank failures in the country. The method of research here is the use of the NDIC Act and other related legislation as primary sources of research in addition to secondary sources such as works authored by legal scholars. The paper has
found that legislative intervention has reduced the incidents of bank failure and also offered
a number of protections to bank customers and their deposits. The paper has however,
discovered shortcomings in the law that need to be amended if bank deposits are to be
accorded adequate protection in the event of liquidation or winding up. It has therefore
recommended, among other things, the proportionate repayment of bank deposits in the
event of liquidation, intensification of the work of bank examiners, and increased penal
sanctions on bank directors and senior management staff whose actions cause bank failure. The overall implication of the study is that when its recommendations are implemented there would be greater confidence and stability in the banking sector which would in turn boost economic growth in the country.
Key-words: insured institution, liquidation, winding-up, bank deposits, bank examiner.
JEL Classification: K22, K34



Articolul 9 - The conception of civil procedure in the Slovak Republic

Rezumat

This contribution offers a comprehensive analysis of the conception of civil
procedure, all the way from the term itself through historical determinants, individual
approaches and civil procedure in Europe up to the present. It discusses the need for the
unified conception of civil procedure expressed in a consistent legislative form. The
subsequent analysis of the specific institutes of the new civil procedural law in the Slovak
Republic describes the correlation of Slovak civil procedure to the so-called social
conception of civil procedure based on the codification of the Austrian Civil Procedure
Code of 1895..
Key-words: civil procedure, the social conception of civil procedure, the Code of
Contentious Civil Procedure
JEL Classification: K40, K41


 

Articolul 10 - Aspects of the application of issue Estoppel on directors’ fiduciary duties in South Africa: possible lessons from the United Kingdom and related jurisdictions Royal Sechaba case

Rezumat

The doctrine of estoppel precludes a person (asserter) from asserting something
different or contrary to what is implied by a previous action, conduct or statement of that
person or by a previous pertinent judicial determination. While there are various types of
estoppel, this article is primarily focused on the application of issue estoppel in relation to
certain aspects of the directors’ fiduciary duties in South Africa (s 76 of the Companies Act
71 of 2008 (Companies Act 2008)), in light of the judgment in Royal Sechaba v Coote
(366/2013) [2014] ZASCA 85 (30 May 2014) (Royal Sechaba case). Issue estoppel could be defined to include instances where a person is precluded from re-litigating or raising a
particular issue in a cause of action that was previously decided by a final judgment of a
competent court between the same parties in future cases that have a different cause of
action involving such parties. Issue estoppel is closely related to res judicata. For instance,
both issue estoppel and res judicata are generally aimed at preventing the re-litigation of
the same issues and same cause of actions that were previously decided by a final judgment in the relevant courts between same parties. Nonetheless, it is widely acknowledged that the application these two concepts is quite different in practice. For instance, some jurisdictions such as the United Kingdom (UK) and South Africa employs English law and Roman-Dutch law (common law) principles respectively, to distinguish between issue estoppel and res judicata. Likewise, similar common law principles are employed in the United States of America (USA), Canada and Australia to distinguish res judicata and issue estoppel in various ways. For example, issue estoppel is sometimes referred to as collateral estoppel, issue preclusion, claim preclusion or cause of action estoppel in USA, Canada and Australia. Despite this, it should be noted that a detailed discussion of the different requirements, merits and demerits of issue estoppel and res judicata in various jurisdictions is beyond the scope of this article. Put differently, this article provides a brief discussion of the application of issue estoppel to commercial agreements (certain aspects of the directors’ fiduciary duties) in South Africa in accordance with the Royal Sechaba case. This is done to investigate whether the requirements of issue estoppel were correctly applied and enforced in Royal Sechaba case.
Key-words: issue Estoppel, res judicata, fiduciary duties, application, South Africa
JEL Classification: K22, K41



Articolul 11 - Principles of international law of investments, recognition and trajectory

Rezumat

The international law of foreign investments is in a process of permanent emerging, whose structure appears as a complex and unitary multitude of interactions between the branches of law and its evolution is inspired by sociology, philosophy, politics and economy. These principles are guiding precepts and guidance aimed at drawing up and application of legal norms on international investments and can be formulated in the text of the Treaties and other regulations in this field. These are the support of the stability of the international law of investments, correcting the discrepancies, excesses and anomalies that are naturally identified at a certain moment in the interpretation and application of this new field of law. The existence of the general principles has a prominent role in the transition periods of law and in the hierarchy, the harmonization and the compatibility of different legal systems.
Key-words: foreign investments, protection, treatment and guarantee, principles
JEL Classification: K22, K33



Articolul 12 - The center of main interests of the debtor in the insolvency proceedings at the European Union level differences between the EU Regulation no. 1346/29.05.2000 and EU Regulation no. 848/20.5.2015

Rezumat

In this paper we will present the notion of Center of Main Interests (COMI) of a debtor in the insolvency proceedings at the European Union level in the light of EU Regulation No. 1346 / 29.05.2000 and the EU Regulation No. 848 / 20.05.2015 with constant reference to the European jurisprudence. The concept of center of main interests of a debtor has a particular importance in the cross border bankruptcy cases as its location determines the court which is competent to open the insolvency proceedings. Although at the European level adopting the EU Regulation No. 1346 / 29.05.2000 was considered a legislative progress in bankruptcy proceedings, in the end it had relatively few applications as it was unable to cover large factual aspects. The mentioned regulation was offering a rigid and abstract definition and interpretation of the COMI concept which resulted in important legal application divergences that lead in the end to a legislative reform. This legislative reform was concluded with the adoption of EU Regulation No. 848 / 20.5.2015.
Key-words: center of main interests, insolvency proceedings, EU Regulation no.
1346/29.05.2000, EU Regulation no. 848/20.05.2015, Eurofood, Interedil
JEL Classification: K33



Articolul 13 - The prohibition of competition in employment relationship in Cameroon

Rezumat

The study aims to analyze one of the apparent inconsistencies that are found in the employment law in Cameroon. The right of free competition is tantamount to a free market society especially in the era of globalization. It appears prima faciae that in Cameroon the lawmaker has limited this right in the area of employment law, the reason being the protection of employers’ businesses that constitute a source of tax income in the fragile economic environment and an opportunity for job seekers. However, a close look at the provisions of Labour code shows that the law does favour on the one hand the employee right to compete on condition not to constitute a threat on the business of his current or former employer. On the other hand, the employer has to compensate his employee in case
of legal non-compete clause and cannot compel him to respect illicit contractual noncompete clauses. If one of the parties to the employment contract develops such an unscrupulous behaviour, he will feel the harshness of the law. This research reveals the wish of the Cameroon lawmaker to adapt its legislation to social and economic realities.
Key-words: employment law; competition; prohibition; non compete clause; employment
relationship; human rights
JEL Classification: K31



Articolul 14 - Understanding trends in the worst forms of child labour and the state’s legal responses: a descriptive analysis

Rezumat

This article discusses trends in the worst forms of child labour. It also examines state’s legal responses designed to eradicate child economic exploitation. This is premised on the Constitution transformative ideal of accelerating social transformation and human development. The exploitative nature of the worst forms of child labour is amongst the most disconcerting aspects in social, educational and economic realities. Most repugnant forms include children being subjected to Commercial Sexual Exploitation, Children being Used to Commit Illicit Activities, bondage labour and other hazardous economic activities. Such activities often result in unalterable physical and psychological harm or even worse, threaten children’s lives. Thus, it is a human rights issue, which infringes children’s core rights such right to dignity, life, social security and freedom. Widespread anecdotal evidence suggests that no country in the world is immune from this scourge, and so is South Africa. Hence, the need to highlight the nature and extent of prevalence, and the efficacy of the rights-based legal instruments adopted against child economic exploitation. It is asserted that factors that proliferates child economic exploitation manifests in the form of primary factors (those with direct impact such as social deprivations, e.g. poverty) and secondary factors (those that relate with action or inaction of governments, e.g. corruption, lack of state capacity). It is argued that legal instruments will be of no effect lest these direct and indirect causes are not interrupted. Widespread awareness campaigns also remain indispensable in order to conscientise society regarding the urgency of the problem. Key-words: child exploitation, child well-being, children’s rights, transformation,development
JEL Classification: K10, K31



Articolul 15 - The protection of juveniles under Cameroon criminal law and procedures through the lens of international standards

Rezumat

While the legislative framework on the adminitration of juvenile justice in
Cameroon may currently be adequate and in compliance with the international conventions
ratified by the State, the implementation of the national law should be the primary
mechanism through which human rights are realized. Cameroon is usually said to be a
State with good laws but poor implementation. With recourse to the normative and
empirical methods, this article explores the provisions on the protection of juveniles in
Cameroon criminal law and procedures through the lens of internationally recognized
principles. It looks at the provisions as they are interpreted and applied by the Courts. The
prospect being to invite the Government and all the stakeholders to embark on establishing
the structures provided for and ensure effectiveness in the enforcement of juvenile justice in
the country so as to overcome the current weaknesses that the system is experiencing.
Key-words: protection; juvenile; minor, Cameroon criminal law and procedure,
international standards.
JEL Classification: K14, K33



Articolul 16 - Recognition and enforcement of the European protection order in the Romanian law. Some critical opinions. De lege ferenda proposals

Rezumat

The current study examines the provisions of Law no. 151/2016 regarding the competences and concrete actions of the Romanian judicial authorities for the recognition and enforcement of a European protection order, sent for execution by a competent authority of another Member State. The novelty is the conducted examination, the critical opinions and de lege ferenda proposals. The paper is a continuation of other papers that relate to the complex activity of international judicial cooperation in criminal matters and the involvement of the Romanian legislator in transposing into the national law of the European legal instruments in the field. Given its structure and the way in which it has been designed, the paper can be useful to academics, practitioners in the field and to the Romanian legislator in terms of completion and modification of the legislative act under examination.
Key-words: the competent Romanian authorities; recognition procedure; reasons for
rejecting the request; the duration of the measure

JEL Classification: K14, K33



Articolul 17 - Procedure of preliminary decision as a supranational judicial keynote of the European Union member states

Rezumat

The procedure of preliminary decision has been for a long time agreed unanimously both by doctrine and jurisprudence and considered as a keynote in developing notional law systems of the European Communities. In the national frame, it is similarly with submitting unconstitutional exception, regulated in several national jurisdictions of the EU Member States. The current paper aims at providing some argues based on a jurisprudence frame of the procedure of preliminary decision made by the Court of Justice of the European Union, as being directory for the national EU Member States’ courts of justice. It also focuses on the judicial issues whose solution is needed in order for the national justice to solve the cases they were invested with.
Key-words: procedure of preliminary decision; administrative procedure; national justice;
supranational judicial system

JEL Classification: K33, K41



Articolul 18 - Solving causes by report to the principles
of the Strasbourg Court

Rezumat

This study aims to find a new perspective for interpretation in cases where the judgments of the international courts (in particular the European Court of Human Rights) are contradictory or create uncertainty, so that they cannot be effectively considered when judging. It is known that the national judge must take into account the judgments of the Strasbourg Court to prevent a possible condemnation of the Romanian state, but when the conventional block is not unitary, we need to find a benchmark that helps us correctly solve the case. We believe that, in these circumstances, relying on the principles of law is necessary, and the principle of trust in justice can be a new, determining factor, in choosing a concrete legal solution. In order to demonstrate the effectiveness this interpretation, a practical case will also be analysed, on the basis of which the implications of such a method can be highlighted. Moreover, the principle of trust in judgments could be used in other cases similar to the practical situation presented and could become a concrete way of interpretation in cases of case law overruling or case law uncertainties, so that the individual’s rights are not injured.
Key-words: case law overruling, ECHR, legal interpretation, legal principles, prosecutors’
papers.
JEL Classification: K14, K33



 

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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)








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