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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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Volum 8, Numarul 2, Iunie 2018

Cuprins



Articol 1 - Semantic aspects of research on the application of private law in the public sector within the legal culture of Continental Europe (with particular emphasis on Polish experience)

Rezumat

As you know, the language level is one of the main research areas of jurisprudence. The author puts forward the thesis that the adopted language apparatus has a significant influence on the research results in legal sciences. This is particularly evident in the analysis of the application of private law to the public sector. The article indicates the semantic problems faced by the author analyzing the application of private law in the public sector. The source of these problems is the adjective "public" that appears in many terms. In addition, there are problems of comparative nature. There is a phenomenon of non-translation of terms from individual languages. Other problems consist in the fact that the use of certain concepts is associated with the adoption of certain initial assumptions. Not always, the authors who write about the application of private law in the public sector are aware of this. An example of such a situation is the concept of "Fiskus".
Key-words: semantic areas of jurisprudence, the application of private law in the public sector, public law contract, division into public law and private law.

JEL Classification: K15, K23, K33



Articol 2 - Legislative inflation – an important cause of the dysfunctions existing in contemporary public administration

Rezumat

The study analyzes one of the major causes of the malfunctions currently in public administration: legislative inflation. Legislative inflation (or normative excess) should be seen as an unnatural multiplication of the norms of law, with negative consequences both for the elaboration of the normative legal act, the diminution – significant in some cases – of its quality, but also with regard to the realization of the law, especially in the enforcement of the rules of law by the competent public administration entities. The study proposes solutions to overcome these legislative dysfunctions, the most important of which refer to the rethinking of the current regulatory framework, the legislative simplification, the improvement of the quality of the law-making process, especially by complying with the legislative requirements (principles), increasing the role of the Legislative Council. The methods of scientific research used are adapted to the objectives of the study: the logical method - consisting of specific procedures and methodological and gnoseological operations, to identify the structure and dynamics of the legal system of contemporary society; the comparative method – which allows comparisons of the various legal systems presented in this study; the sociological method – which offers a new perspective on the study of the legal reality that influences society in the same way as it calls for the emergence of new legal norms; the statistical method – which allows statistical presentation of the most relevant data that configures the analyzed phenomenon. The study aims to raise awareness of the negative effects of regulatory excess. This, along with the legislative instability, as present in the current legislative landscape, not only generates a diminution in the quality of the law, but also builds the trust in its power to ensure justice, promote and protect the rights of the individual. Overproduction of laws gives rise to serious distortions in the application of the law, sometimes even to the impossibility of applying it, thus annihilating the balance that should exist between norms and their application.
Key-words: law, inflation, public administration, normative excess, law enforcement.

JEL Classification: K10, K23, K42



Articol 3 - Objective contentious matters in Romania and their unexplainable vulnerabilities

Rezumat

The objective contentious matters should be a lethal weapon for the administrative acts challenged at the court specialised in this kind of issues, because, unlike the subjective contentious matters, they do not depend – or at least they should not depend – on the plaintiff’s (which is, by definition, a public authority) proving a subjective right or a personal legitimate interest injured by the administrative act. Relieved from this burden, the plaintiff’s task within an objective contentious matter should be easy: to come up with the proof that the case object contravenes a rightful rule with a superior legal force. In this case, the challenged act is annulled by the decision of the administrative contentious court and, as an expression of the public interest prioritising principle, it derives from the other one, which is more general, namely the principle of lawfulness. Nonetheless, at least three legal provisions of the Act no. 554/2004 – section 1, par. (3), section 3, par. (1) and section 28, par. (3) – highlight a few weaknesses of this type of contentious matters, either by conditioning them upon the fate of certain subjective contentious matters – which by definition are more fragile – or by placing the plaintiff, by virtue of the law, in a legal status inferior to the one that the plaintiff within a subjective contentious matter enjoys. And these weaknesses are surely worth being analysed, because so far neither the doctrine nor the case law seems to have at least noticed them.
Key-words: objective contentious matter, the Ombudsman, the Prefect, withdrawal of the case.
JEL Classification: K41, K49, K23, K19



Articol 4 - Judicial control of administration in Kosovo

Rezumat

The development of administration went through various phases after the war in Kosovo (1999). Right after the war we cannot talk about the clear administration with the local sense, since Kosovo based on the UN Security Council Resolution 1244 was put under the international civil administration. Ten years later Kosovo Parliament approved the Declaration of Independence after which the Kosovo Constitution was adopted, whose main attribute was to create the state of Kosovo. Thus, based on this, the administration in Kosovo was developed firstly as the internationally organized one; then it was locally organized supervised by the international power and finally it is being developed based on Kosovo Constitution and Kosovo Laws. With this paper author by explaining the process of administration development, using: method of historical analysis, method of comparison analysis, method of systemic analysis, etc., with the specific analysis of the judicial control of Kosovo administration during these phases, as the basic form of the administration control which is exercised by courts in Kosovo. Conclusions and recommendations of the paper are expected to be used not only for academic debates.
Key-words: parliament, administration, constitution, judicial, control.
JEL Classification: K23, K41



Articol 5 - Quo vadis administrative law?

Rezumat

The present study aims to analyze the current state of evolution of Romanian administrative law. Although the title presents itself as an interrogation, we do not want- it would be a naivety if we do- to give answers. The study focuses mainly on the following aspects: false modernity of administrative law; the "attacks" from other branches; conserving constants and defining traditional elements; the effect of Europeanisation.
Key-words: administrative law, tradition, modernity, evolution, constants, principles, values.
JEL Classification: K23



Articol 6 - Administering social care in the European Union: moving towards one-stop shops?

Rezumat

Protection and inclusion have for long been some of the guiding principles of the European welfare states. The crisis of 2008 placed social investment high on the social policy agenda in the EU and specific policies that the new paradigm embraces have been in focus. Unfortunately, little attention is paid to administering policies. Creating one-stop shops, as a new way of easier and more efficient use of available resources for citizens, is perceived as the most suitable way for administration of specific policies. This paper is a contribution to this debate, looking at ways social policy is administered across the EU, from a double perspective. First, having social investment as the theoretical but also practical approach and second, looking at different welfare state regimes. This approach should point to major differences in social policy administration but also present which models perform the best. Most importantly, the paper aims to show how administering social care influences implementation of policy changes across the European Union.
Key-words: one-stop shop, European Union, social investment, decentralisation, activation.
JEL Classification:
K23, K33



Articol 7 - Role of social professions in the process
of sustainable development of rural area.
Study case

Rezumat

It is already known and accepted in Romania the reality of the consequences
produced by the social or other reforms, the transformations that reach precisely the
category of the citizens from the rural area, with socio-economic problems. In 2017, the
awareness of the fact that the population in the rural area, mainly consisting of socially,
economically or medically vulnerable groups, need this type of services, trying to
compensate for the reality of the dismantling of several sanitary units, O.U.G no.18
attempts an approach through the corroboration of this state of affairs with the objectives
of developing community services. Our conclusions set out in this article are paving the
way for de lege ferenda proposal to ensure proper regulations from the perspective of
providing training for the social professions to be involved in the functioning of integrated
centers at the level of rural communities.
Key-words: social professions, integrated community center, sustainable development, rural area.
JEL Classification: K23, K32, K39



Articol 8 - Public participation in dealing with cases in administrative procedure - reflections on the basis of the Polish legal system

Rezumat

In 2017 the Polish Code of Administrative Procedure was amended. As a result of the introduced changes, regulations regarding public participation in dealing with individual cases subject to settlement by way of decision were significantly extended. As a general rule, the authorities have been obliged to strive for amicable settlement of disputes whose nature allows it. In order to implement the above principle, apart from the institution of amicable agreement already applicable in Polish system, the possibility of conducting mediation between the parties to the proceedings, as well as between the party and the authority was introduced. Such solution is already applied in some legal orders and is gaining more and more importance in the countries of the EU. The objective of these regulations was to extend public participation in the administrative governance. The article presents an analysis and evaluation of solutions adopted in Polish law in the context of general and universal problems of purposefulness, scope and forms of public participation in authoritative resolution of disputes, which as a rule is the domain of the state.
Key-words: administrative procedure, public participation, mediation, Polish legal system.
JEL Classification: K23, K40



Articol 9 - Separation and balance of power and discretionary power in public administration

Rezumat

Separation and balance of powers is one of the fundamental principles which is a fundamental element of the rule of law in any contemporary. The recognition of this principle does not imply that even public administration authorities must have a rigid behaviour, and that they are not allowed to have and exercise a discretionary power, a right of appreciation. However, the exercise of such power or right must be within the limits of that principle and, implicitly, of the principle of legality. Nowdays, we can observe that any public authority, as well as those in the sphere of public administration, tries to force the limits of its discretionary power, or such a behaviour could affect the correct and constitutional functioning of the rule of law. This article is intended to be only an initial approach to identifying the constitutional aspects relevant to the proposed theme by using methods such as comparative or systemic method. Thus, we want to identify those constitutional mechanisms that constitutional legislators have established to prevent overcoming the limits of this discretionary power. Later, through other articles, we will have the opportunity to identify the risk factors that arise in such situations, as well as possible solutions to reduce or even eliminate these factors.
Key-words: separation and balance of powers, discretionary power, public administration, excess of power
JEL Classification: K10, K23


 

Articol 10 - Independent bodies as a model of organization of the public administration

Rezumat

We live in a time when the number of regulatory bodies or independent agencies or so-called parastatal organs is continually growing and gaining momentum as a part of a country’s system of governance. In particular, in the Republic of Macedonia, in the period from 2002, around 24 independent organs have been established with the legislation, which shows that this is not only an actual topic for research and writing but also that there is an actual need for an in-depth study for the purpose of establishing these organs. Simply put, is their establishment in the legal system a necessity or a trend. Hence, the subjects of research in this paper are the reasons or the factors that contribute to the formation of the independent organs, their position in the system of government organization and the distinction between the independent state organs, the regulatory bodies and the independent organs of the state administration. Taking into consideration the fact that through the formation of these organs a new model of exercising public authorization has been developed, a question whether these organs are a new model of organization of the public administration is being raised. A model that enables the decentralisation of certain competencies for which have been the state administration concern so far, and for which the state administration now becomes only an execution controller. All this in order to enable a more efficient, more qualified and depoliticised execution of the public interest services. To achieve the aim of the research in the paper we used historical method, comparative method and normative method..
Key-words: independent organs, regulatory bodies, agencies, public administration, separation of powers.
JEL Classification: K23, K33



Articol 11 - Particularities of the consumers’ right to information in electronic commerce

Rezumat

An individual’s right to information is a fundamental right, guaranteed and protected by effective legal means. At the same time, since it is a relative right, it is likely to be limited by explicit legal regulations, in certain properly determined circumstances. The guarantee and protection of the right to information is a responsibility of authorities, who should facilitate an individual’s access to information, in more and more economic and social areas, where persons have a proven interest. In this context, it can be seen that a growing number of legislative acts in specific fields stipulate the obligation to automatically provide certain information or make it available to persons, thus effectively achieving the right to information, correlated to the obligation to inform, incumbent not only on authorities, but on business operators as well, in more and more cases. Information is important in terms of consumer rights, with a view to both protecting their economic interests, and defending their individual or collective health and safety. Certain regulations in terms of consumer rights protection refer to the defence of collective social values and public interests. The study will deal with how the consumer is protected and informed on certain acts and facts of trade, that might put him/her in vulnerable situations.
Key-words: right to information, consumer protection, administrative authorities, electronic trade, obligation to inform.
JEL Classification: K10, K23



Articol 12 - The General Data Protection Regulation: what does the public authorities and bodies need to know and to do?
The rise of the data protection officer

Rezumat

On 25 May 2018, the General Data Protection Regulation will come into force in all the Member States of the European Union, replacing the Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data and, additionally, in Romania, the Law no. 677 dated 21 November 2001 on the protection of individuals with regard to the processing of personal data and the free movement of such data. This paper intends to analyse the regulation’s provisions regarding the public authorities and bodies of a Member State, in order to discover how Romanian authorities should envisage to organise the processing of personal data. We shall reveal the steps that have to be taken by the respective entities of the State. Among the most important steps, we consider it essential to designate a data protection officer. Having in view that the European regulation expressly provides that those entities must designate a data protection officer, in this paper we shall emphasize what are the tasks, the role, the responsibilities, the qualities of the data protection officer.
Key-words: data protection, DPO, GDPR, public authority, public body.
JEL Classification: K00, K23, K33



Articol 13 - The status of civil servants - between aspirations towards professional excellence and political interference

Rezumat

The Romanian society has, as a national objective, a public administration outside the political influence and the recruitment of competent and performant public servants. One of the instruments to realize this objective is, no doubt, the legal status of the public servants. This study is aimed to identify and analyse the elements of vulnerability witch the Law 188/1999 concerning the public servants and the project of the Administrative Code contain, from the perspective of the political influences. The main issue of the study is to be aware of the institutions, procedures and factors witch make fragile the legal status of the public servants, allowing, by example, the political parties membership of the public servants or their recruitment in absence of a national competition, organised by an entity specialised in the development of the public function in Romania. The project of the Administrative Code brings remedies only in part for the existing problems, while amplifies others. O very difficult, actual and vulnerable matter is the policy of salaries of public servants, in the context of the Decision n. 794/2016 of the Constitutional Court. The research has an explicative, but also a critic character. Also, solutions are offered in order to increase the degree of accomplishment of a competent, transparent and political neutral administration.
Key-words: civil servants, Romanian administrative law, Administrative Code, depoliticization, public administration.
JEL Classification: K23



Articol 14 - The legal model for metropolis management in Poland - comments on the regulation of metropolitan union in the Silesian voivodship

Rezumat

Political changes that followed after 1989 led to the creation of local self-government in Poland. As a result, a municipality, a county and a voivodship self-government were established. In the course of these reforms, however, the problem of the system of metropolitan areas, and thus their management, has not been resolved. Making metropolisation in Poland, understood as creating special solutions for metropolitan areas in the form of large urban agglomerations, that are facilities of various networks (transport, scientific, economic) and development centers, is not satisfactory. Initiatives to ensure management of metropolitan areas have been undertaken for a long time, but still without achieving sufficient results. In 2015, the Act on metropolitan unions was adopted, whose provisions constituted the basis for creating metropolitan unions regardless of the country's area. On the basis of its provisions, however, no metropolitan union was established. In return, there was undertaken the work on the subsequent act in analyzed area - this time concerning only the area of the Silesian voivodship. The purpose of the article is to analyze provisions of the act on metropolitan union in the Silesian voivodship, aiming at determination of effectiveness and sufficient nature of these provisions in the area of metropolitan areas management in Poland. The regulations regarding only one, though undoubtedly the largest urban agglomeration in Upper Silesia, which is currently the case, seems insufficient to assume that the problem of providing a special system and rules for management of metropolitan areas has been solved.
Key-words: metropolis management, metropolisation, metropolitan unions, metropolitan union in the Silesian voivodship.
JEL Classification: K23.



Articol 15 - Aspects of posting (from the perspective of the salary state and the public servant). Proposals de lege ferenda

Rezumat

If the contracting parties resort to the conclusion of individual labor contracts/individual administrative contracts2, the adaptation of gainful activity to technological or economic developments may require the modification of those legal acts on the basis of which the activity is carried out – also in view of the intrinsic dynamics of the work / service3. The "pacta sunt servanda" principle is also applicable in the scope of the contracts noted above. Its application implies that, as far as possible, the parties understand to maintain, throughout the execution of the contract, the clauses initially foreseen. Obviously, however, that a valid contract can not remain "frozen" if, in the meantime, new elements or requirements arise during its execution.
Key-words: individual employment contract; individual administrative; change contract; posting.
JEL Classification: K23, K31



Articol 16 - Procedural aspects of patrimonial liability in Romanian labour law

Rezumat

In this study, the procedural aspects regarding the way of applying the patrimonial liability to labour law will be analysed. The non-regulation of a procedure in this matter by the legislator represents a legislative lacuna that can be corrected either by de lege ferenda by amending the Labour Code, or by the social partners according to the legal provisions in the matter. In this study, solutions in this regard will be presented.
Key-words: patrimonial liability, labour law, procedural aspects, de lege ferenda proposals
JEL Classification: K31



Articol 17 - Legal divergences in terms of customer rights in Kosovo

Rezumat

Customer protection is a worldwide known and respected phenomenon, whereas in Kosovo its regulation is in early beginnings. Historically, the origin of Kosovo customer law is from 2004 when it was first regulated by the Law. Despite all the amendments and additions made to this act in 2009, there are still no signs of positive results on this respect. The purpose of this paper is to highlight the importance of customer protection and to emphasize that customer protection legislation is not sufficiently harmonized with the Law on Obligation Relationships reflecting certain legislative divergences. These divergences result in no unique legal terminology, and also in various interpretations due to the underlying weaknesses. For the purpose of legislative security for customer protection, it is necessary to harmonize the terminology referring to the customer as a buyer, etc..
Key-words: customers, rights, law, business, service, trade.
JEL Classification: K20, K23



Articol 18 - Legal philosophy of Modern Scholasticism: rights of nations as a means of intercultural dialogue

Rezumat

This article investigates legal philosophy of the Second, or Modern Scholasticism. Doxographical, analytical as well as hermeneutical methods are applied. The author of the article concentrates on the list of fundamental rights of nations presented by Francisco de Vitoria including rights to existence, mutual equality and political independence; rights of international migration and trade; as well as the right and even duty of humanitarian or even military help. The article comes to conclusion that the above-mentioned list does not lose its relevance in contemporary world and society, as the rights from this list are regularly infringed. It is also asserted that, having been transferred into cultural - civilizational field, the elements of Vitoria’s list would become universal rights of every culture and civilization. As those rights share respectful, protective and fostering orientation towards various cultures and civilizations, they could be applied as measures of starting, fostering, maintaining and safeguarding intercultural/intercivilizational communication and dialogue.
Key-words: legal philosophy, modern scholasticism, rights of nations, intercultural and intercivilizational dialogue, Francisco de Vitoria.
JEL Classification: K33, K37, K38


Articol 19 - Will the Directive 2014/17/EU on mortgage credit protect consumers
in the next economic and/or financial crisis?

Rezumat

The Directive 2014/17/EU on mortgage credit agreements for real estate properties
(Mortgage Credit Directive or MCD) reflects the classic tension in the European Union (EU)
between the goal of attaining a European single mortgage credit market and the obligation
to provide a high level of consumer protection. The classic approach of EU law to solve the
tension is to find a balance between those aims through the interaction of public/private law. The article starts with a summary of the most important choices done by the legislator (exante information duties and responsible credit) and essential consumer right. It follows with a critical assessment of the MCD. The methodology of this study is both descriptive and analytical, law is considered not only a normative system but also a set of policy instruments influenced by other disciplines (ie. economics). The findings lead both to optimism and to criticism. Although the European harmonization represents a further step ahead in the area of financial services and consumer protection, some critical questions are still forgotten or left aside. The most important question remains unanswered, whether the MCD will protect consumers when the next economic/financial crisis inevitably arrives. The implications are clear: more research and better policy are needed.
Key-words: mortgage credit agreements, EU law, EEA, consumer information, protection of consumer´s rights, responsible lending.
JEL Classification: K12, K25, K33


Articol 20 - Concept of service-oriented public policymaking in Ukrainian legislation

Rezumat

Considering concept formation of service-oriented public policy, the main stages of its development are discussed and some of the modern trends of service-oriented policymaking in Ukrainian legislation are analyzed. Some features and tendencies are identified in order to improve the quality of interaction between citizens and public administration system in Ukraine. This paper aims to analyze the concept formation of service-oriented public policymaking in Ukrainian legislation and the implementation process of e-services delivery in Ukraine. In spite of significant studies of “service state”, “welfare state”, “service-oriented public policy” and other concepts, current unique political and legislative factors of Ukrainian development determine the relevance of this paper. The primary focus of the paper is efficiency analysis of legislative ensuring of administration services in the Ukrainian context in comparison with the experience of other countries. That was implemented via such methods as comparative analysis, interpretation of statistical indexes of e-services delivery and documentary research method. The paper has been organized as follows. The next section provides a literature review on the concepts of public-state interaction. Then word experience and peculiarities of Ukrainian background of e-services delivery efficiency are considered.
Key-words: Administration Services; E-services Delivery; Service-oriented Public Policy; Good Governance; Public Administration in Ukraine
JEL Classification: K23; K24; D73; H83


Articol 21 - Considerations about administrative decentralization and local autonomy in Romania

Rezumat

Decentralization is not the opposite of centralization, but its diminution, diminishing the concentration of powers. By means of decentralization certain public services of local interest are transferred from the competence of the center to that of some local public administration authorities, which have independence from the central power, are autonomous and are not subordinated to it. The idea of decentralization implies the idea of local autonomy. Local autonomy means the right and effective capacity of local public administration authorities to solve and manage public affairs in the name of and in the interest of the local communities they represent, under the law. In this article we analyzed the legal means of achieving administrative decentralization and local autonomy in Romania. At the end of the article we made some de lege ferenda proposals, considering that the European principle of subsidiarity and the French model of the decentralization contract should also be a reference point for the Romanian legislator.
Key-words: administrative decentralization, local autonomy, administrative decentralization contract, subsidiarity principle, administrative law.
JEL Classification: K23, K33


 

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