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Societatea de Științe Juridice și Administrative



ISSN: 2247-7195
e-ISSN 2248 – 0382
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Volumul 8, Numar Special, Octombrie 2018

Cuprins



Articolul 1 - Fashion law. Concept and beginnings in European Union and Romania

Rezumat

The present study aims to present the right of fashion as a distinct branch of law.
The idea I started from was that law of fashion is a complex branch of law that brings
together issues related to intellectual property, commerce, advertising, competition, labour
relations, customs, advertising and modelling. I appreciate that this new branch of law will
become more and more visible and will include those legal rules that, although belonging
to other branches of law, distinct and self-governing, have come to be closely linked to the
field of fashion, and fashion-inspired legal norms devoted exclusively to this field in order
to help develop this industry, protect those who play the role of market players in the
fashion market, or regulate certain new situations arising from the natural evolution of a
such domain.
Key-words: fashion law, intellectual property, trade, advertising, modelling, fashion
industry.

JEL Classification: K22, K23, K29



Articolul 2 - Considerations regarding consumer protection
in Romanian and European law.
The notion of consumer

Rezumat

Ensuring a high level of protection of consumer rights represents a concern of the European Union. The consumer is, in the broadest sense, the person who purchases goods and services. The policy of consumer protection is based on the presumption of vulnerability of the individual in relation to the professionals.
Key-words: consumer, professional, vulnerability, objective acceptance, subjective acceptance, competitive market.

JEL Classification: K20, K22, K23



Articolul 3 - Protection of land ownership of foreigners in Ukraine

Rezumat

The restrictions and peculiarities of the realization of the right of ownership of
land by foreign citizens in Ukraine are considered. The emphasis is placed on the
functioning of the principle of proportionality, the provision and criteria of predictability
by the law and compliance in relation to the restriction of the rights of foreigners in
acquiring agricultural land. The peculiarities of acquisition of the right of ownership on
land plots and rights to use land plots in Ukraine by foreign citizens, foreign legal entities
and foreign states are revealed. The authors formulate the purpose of legal regulation of
restrictions on the right of ownership of foreigners to land. The primary focus of the paper
is efficiency analysis of the legislative prohibition on acquiring property rights on
agricultural lands (moratorium) by foreigners in Ukraine. The need to abolish this
moratorium on acquiring agricultural land in Ukraine for citizens of foreign countries is
justified.
Key-words: ownership rights; acquiring of land; agricultural lands; limitation of the rights
of foreigners, land ownership, land rights.

JEL Classification: D86, K11, P14, P48



Articolul 4 - Regulating negligence in German and in Spanish criminal law

Rezumat

Although in German and in Spanish legal systems there are no express provisions
with regard to the criminal negligence (culpa), this has not hindered the legal doctrine and
jurisprudence to thoroughly analyse this form of guilt. This made it possible to qualify as
intentional offences some deeds which in our legal system are considered to be committed
with conscious negligence (involving foresight). The difficulty to distinguish between
indirect intention (dolus eventualis) and conscious negligence (luxuria) has nonetheless
determined Spanish courts to ask the legislator to provide a clear definition of indirect
intention, which could be an additional argument with respect to the weaknesses entailed
by such a legal approach.
Key-words: criminal negligence, indirect intention, German legal system, Spanish legal
system.

JEL Classification: K14



Articolul 5 - The Vienna convention on civil liability for nuclear damage:
past, evolution and perspectives

Rezumat

The article remains the 55th anniversary of the adoption of the Vienna Convention on Civil Liability for Nuclear Damage in 1963. As an instrument of international law adopted to tackle the issues of liability and compensation of damages arising from incidents in nuclear installations, the Vienna Convention currently provides for liability framework in 40 Contracting Parties (Installation States) worldwide, establishing – inter alia – a liability framework covering most States of the former Eastern bloc. The purpose of the work is to analyze developments of the Vienna Convention, especially its gradual acceptance among the international community of States in the last decades. Further, the article points out further developments in the field of nuclear liability, in particular the adoption of the Joint Protocol, which established a virtual bridge with another liability regime, provided in the States of Western Europe by the Paris Convention. Also, the article deals with the Protocol of 1997, adopted in order to strengthen the liability framework established by the Vienna Convention. Facing the developments of the last 55 years, the Vienna Convention is to be considered as a successful international treaty. It was able to attract the executives of several Central and Eastern European States, many of which represent major nuclear countries of the region. Further, the specific principles, established by the Vienna Convention, have been accepted as pillars of the legal framework of the peaceful uses of nuclear energy. At last, but not at least, the Vienna Convention represents an instrument, being able to connect this region in the future with other regions, intending for future development of nuclear industry.
Key-words: international nuclear law, nuclear liability, nuclear insurance, nuclear damages,
exclusive liability, jurisdiction, nuclear installations.

JEL Classification: K23, K32



Articolul 6 - The 1989 Salvage Convention and the protection of the environment – should the actual compromise continue?

Rezumat

The salvage law regime is mainly set forth in the 1989 Salvage Convention that is complemented by a series of private initiatives of the salvage industry. The most discussed issue from the point of view of amending the actual international regulation is whether the salvage operations are in fact able to protect the environment. The salvage industry has initiated proposals in order to amend the 1989 Salvage Convention. In this context, it is important to bear in mind that no other international maritime salvage convention has previously taken into consideration the problem of the protection of the environment. From this perspective the actual regulation represents a fundamental change. Alongside with traditional subjects of salvage, protection of the environment was recognized by the 1989 Salvage Convention not as an independent subject but related to the salvage of the ship and its cargoes. Two articles, namely Article 13 (b) which refers to an “enhanced award for the salvor” and respectively, Article 14 deemed as “a safety net” were special designed to encourage the salvor to intervene in circumstances where damages to environment occurs. The Salvage Industry has advanced a proposal for the Convention’s revision meant to reflect in a more adequate way the importance of the salvage services’ contribution to the environmental protection. It is often reminded that this Convention is a result of the so called “Montreal Compromise” agreed by the Comite Maritime International in 1981, which has balanced the interests of all actors involved in the maritime salvage. Starting from this aspect, the purpose of the hereby paper is to analyze the Convention’s text parallel to proposals for its revision.
Key-words: envinronmental salvage; damage to the environment; the safety net; SCOPIC clause; the 1989 salvage convention.
JEL Classification:
K32, K33



Articolul 7 - The impact of monopolization of the gambling sector in the Republic of Moldova on criminal liability for manipulation of an event and arranged bets

Rezumat

This paper analyzes the impact of monopolization of the gambling sector in the Republic of Moldova on criminal liability for manipulation of an event and the arranged bets. In this respect, the author made use of the regulatory framework, doctrinal approaches, as well as the judicial practice in this field. In the light of the jurisprudence of the Court of Justice of the European Union, it was concluded that monopoly in the field of gambling could be justified only if the goal to combat the dangers of gambling is pursued in a coherent and systematic manner. Moreover, it has been stated that the Parliament of the Republic of Moldova hurried to decide on the establishment of the state monopoly on the gambling sector, there being no large public debate in respect of this issue. On the other hand, it was shown that the state cannot appear as a victim of the arranged bets offence, even though in the Republic of Moldova the activity of organizing and conducting betting is the monopoly of the state. It has also been concluded that there is no objective and reasonable argument to prohibit bets on events that have no sporting nature in the Republic of Moldova. Furthermore, legislative inconsistencies in this field have been highlighted and solutions have been proposed.
Key-words: monopoly, gambling, betting, sports event, betting event, manipulation of sports competitions, match-fixing.
JEL Classification: K14



Articolul 8 - Unmasking some challenges associated with the enforcement of issue estoppel in South African commercial-related disputes with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012)

Rezumat

Estoppel is generally aimed at promoting equity and fairness in litigation by preventing a person (asserter) from resiling or asserting something contrary to what was implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination regarding such action, conduct or statement. Accordingly, issue estoppel could be defined to include instances where a person is prevented from relitigating or raising a particular issue in a cause of action that was previously decided by a final judgement of a competent court between the same parties in future cases that have a different cause of action involving such parties. In other words, res judicata prevents the re-litigation of a dispute that was previously decided by a final judgement of a competent court between the same parties (idem actor) or persons (eadem persona) for the same relief, thing or right (eadem res) on the same ground or same cause of action (eadem causa petendi) in future cases involving such parties or their privies. Issue estoppel and res judicata are closely interrelated. For instance, both issue estoppel and res judicata have similar requirements. Nonetheless, issue estoppel and res judicata are relatively different in their application. Accordingly, issue estoppel may only be employed as a defence in appropriate instances where it is justifiable for the court to dispense with the strict application of the requirements of res judicata. Having said this, it must be noted that issue estoppel and res judicata have been confusingly and inconsistently employed in many South African cases to date. Such confusion is mostly found in relation to the relaxation of the three-fold requirements of res judicata and the application of issue estoppel. Given this background, this article exposes certain challenges that are associated with the practical enforcement of issue estoppel in South Africa with reference to Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012).
Key-words: res judicata; application; issue estoppel; enforcement; challenges; South Africa.
JEL Classification: K22



Articolul 9 - The effects of Regulation no. 679/2016 on the Romanian commercial environment. The new obligations in the field of personal data

Rezumat

The entry into force of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, commonly referred to as the General Data Protection Regulation will lead to significant changes in the domestic commercial environment. The present study aims to analyse the main problems that Romanian companies will face. In this respect, a section is dedicated to the theoretical and practical aspects of the new regime of consent, which, under the rule of the Regulation, can no longer be tacit. Similarly, attention is paid to problems concerning the obligation to appoint a Data Protection Officer. This obligation implies significant changes in the companies’ internal affairs. The final part of the article is dedicated to the systematization of a generally applicable compliance rules, to aid Romanian in their feat of insuring proper respect for Personal Data. The main purpose of the present study is to create a proper practical plan to facilitate the fulfilment, by Romanian businesses, under the Regulation.
Key-words: GDPR, personal data, consent, Data Protection Officer, operator.
JEL Classification: K22, K23, K29


 

Articolul 10 - The European Union external competencies and maritime industry

Rezumat

Maritime industry has deep roots in Europe. International ports and Inland water ways are in use by European merchants in the course of their trade all along the history. Formation of the European Union and Single European Market has increased the importance of maritime transport even more than before. Currently, industry is regulated at the Union level with body of law which intends to create a safe and predictable business environment for European and foreign enterprises. However, shared nature of the EU with her Member States in regulating Maritime Transport has created a big question mark for many external parties as well as European stack holders of Maritime industry. The question is who can represent EU maritime industry externally and where to draw the limits of Union and Member States Competencies in this industry? At the midst of the second decade of 21th Century, still many international businesses and even foreign governments wonder about limits of external competencies of the EU in maritime industry. Such confusion creates trouble for foreigners and even Europeans in determining where should they referee their matters to the Commission and where should they approach Member States? In this paper, author tries to answer above mentioned question by scrutinizing external and internal challenges facing the EU about its competencies to represent maritime industries outside of her boundaries. Paper is divided into five main sections. After introductory comments, second part will discuss maritime policy and its regulation in the EU. In third part with particular focus on the EU-IMO relations, paper will analyse external challenges facing the Union in representing her maritime industry in international organizations. Forth part will take a look at internal challenges and regulatory limits which affect the extremal representation of maritime industry by the Union. Final part is dedicated to concluding remarks.
Key-words: the European Union law, maritime industry, external competencies, the European Union.
JEL Classification: K23, K33



Articolul 11 - Legal classification and judicial syllogism

Rezumat

Particularly in criminal matters, the judicial errors register an alarming increase, so much so that it not only affects the destiny of the wrongfully sentenced or the groups that they belong to, but also the destiny of the entire society. A cause of this situation resides, from what it seems, in the lack of thorough legal studies with regards to the logical operations which should stand at the base of the decision that an actual act does constitute a certain offence, with a well specified “classification” or “qualification”. The present paper tries to actuate debates on the matter, which has been wrongfully neglected. With this purpose, the author begins from a rather old idea, but insufficiently known, and that is that any court sentence is the result of two types of judicial syllogisms: qualificative and decisional. Elaborating this idea, the author observes a series of other aspects, such as: the fact that, in criminal matters, the qualificative syllogisms serve to establish the legal classification, while the decisional syllogisms serve to establish the sentence; the fact that, in criminal qualificative syllogisms, the subject is always the actual act, and the predicate is a criminal concept (the notion of an offence); the fact that the legal classification is not an “operation”, as is claimed by many authors, but a conclusion, specifically to a qualificative syllogism etc.
Key-words: actual act, act-species, concept, syllogism, judicial error.
JEL Classification: K10, K14



Articolul 12 - The right to appeal on contested procedure under the Republic of Kosovo legislation

Rezumat

The right to appeal as one of the fundamental human rights is foreseen by international legal acts and domestic legislation. In this scientific paper we have handled the right to appeal under article 6 (1) of the European Convention on Human Rights and Kosovo legislation, with special emphasis on contested procedure by including the appeal against judgment and the appeal against ruling, the grounds of appeal against judgment and limitation of appeal grounds against several judgments. All those abovementioned matters are the main object of review in this scientific paper. Handling the right to appeal against the first instance court judgment is important also due to the fact that in Kosovo according to the new Law on Courts as a competent court to review and decide on appeal submitted by the appellant is the Court of Appeals as a second instance court. In this scientific paper we have used normative, deductive, descriptive methods. At the end of this scientific paper there are conclusions in relation of the right to appeal with special emphasis on contested procedure.
Key-words: the right to appeal, the European Convention on Human Rights, Kosovo legislation, contested procedure, judgment, court.
JEL Classification: K40, K41



Articolul 13 - Features of implementation of international norms on financing of terrorism in Azerbaijan

Rezumat

The contribution is devoted to the description of features of national implementation of treaty obligations of Azerbaijan according to the UN Convention for the Suppression of the Financing Terrorism. The basis of research is presented by the Law of the Republic of Azerbaijan “On the Prevention of the Legalization of Criminally Obtained Funds or Other Property and the Financing of Terrorism”. The author pays attention to the next aspects: 1) differences between approaches of national legislation and treaty obligations; 2) modern challenges that might have impact on the efficiency of implementation of international norms on suppression of the financing of terrorism.
Key-words: Azerbaijan, implementation, treaty obligations, counteraction to criminality, financing of terrorism.
JEL Classification:K14, K33



Articolul 14 - Does the laws of armed conflict adequate enough to protect the environment during of the international armed conflict? A legal critique

Rezumat

It is an undeniable fact that, environment annihilation and the armed conflicts are like two sides of the same coin and thus can no way be averted the former effects in case of the existence of later cause. Out of this realisation, a number of International Conventions and International Humanitarian laws have developed over times to protect or reduce environment destructions during warfare. Hence, this paper has penned to weigh up carpingly the adequacy and efficacy of the laws of armed conflicts for safeguarding the environment from possible annihilations that occur during warfare of international character. Further to note that, the present paper will not focus on provisions pertaining to environmental protections during war, under international legal instruments that deals with arms limitation, arms proliferation or any other laws addressing jus ad bellum. In other words, the current study will restrict itself to examine only the protection of environment in jus in bello of international character.
Key-words: Laws of Armed Conflict (LOAC), Additional Protocol-I, the ENMOD Convention Environment Protection.
JEL Classification: K32, K33.



Articolul 15 - Fundamental elements of agency relations under Nigerian commercial law

Rezumat

This paper is informed by the need to highlight, clarify and evaluate key aspects of the Nigerian law of agency against the background of the increasing usage of the services provided by agents in the progressively complex commercial transactions in an era of globalization. The paper has found that contemporary business deals and contracts have increasingly depended on agency services and has, therefore, explored the attitude of Nigerian Courts to various significant aspects of agency relationship for the proper enlightenment of parties to contracts of agency who may be interested in doing business in Nigeria and on the international platform.
Key-words: Agency, disclosed principal, tortuous liability, contract of agency, indemnity.
JEL Classification: K22, K34



Articolul 16 - The Commission for Conciliation, Mediation and Arbitration (CCMA) and Alternative Dispute Resolution (ADR) in labour relations in South Africa: an appraisal of efficacy and challenges

Rezumat

The Labour Relations Act 66 of 1995 provides that Alternative Dispute Resolution (ADR) is predicated on providing less complex statutory processes within which labour disputes may be expeditiously and cost effectively resolved. Has or is this fundamental objective being realised? This article proffers a critical disposition of the realities besieging South Africa’s prime institution of labour dispute resolution, the Commission for Conciliation, Mediation and Arbitration (CCMA), whose establishment brought about high expectations in terms of normalising systems of labour dispute resolution, and ushering in employee-friendly employment relations. It has been observed that although the CCMA provides simplified labour dispute processes, majority of workers still struggle to achieve a practical realisation of the intended ADR benefits, largely owing to low literacy levels and the skewed bargaining power which is still slanted towards employers. Employers still wields the determining power at both conciliation and arbitration stages, and are better placed to manipulate a conciliation outcome due to technical knowledge of labour laws and the power of record keeping, against employees, who often are the disadvantaged proletariat with limited or no skills or training in labour relations. Further, the arbitration process still manifests some elements of adversarialism, which favours the resources-rich employers.
Key-words: labour disputes resolution, labour rights, conciliation, arbitration, labour peace.
JEL Classification: J52, K31



Articolul 17 - Aspects regarding the impact of the Administrative Code on the specialized central public administration in Romania. Special attention to the Ministry of National Education

Rezumat

The study aims to analyze the amendments made by the Administrative Code to the central specialized administration, in general and to the Ministry of National Education in particular. The adoption of the Administrative Code is a legislative event that will undoubtedly influence the evolution of the central, local and local public administration in general and of each of its constituent authorities in particular. Last but not least, it will bring benefits to the work of the state and the lives of citizens. A special analysis will give direct influence to the Ministry of National Education, given the significance of the public service it manages, that of education, in all its forms permitted by the Constitution: state, private and confessional. The way in which this central specialized authority achieves its competence influences not only the present, but also the future of a nation, through the institutionalized forms of education, preparing future generations.
Key-words: Administrative code, education, administrative law, specialized central public administration, competence, ministry, Ministry of National Education.
JEL Classification: K23



Articolul 18 -Arbitration settlement of disputes concerning administrative contracts in Romania

Rezumat

The present study aims to analyze the conditions under which arbitration may be used in the administrative contracts provided by the Civil Code and the legislation on public procurement and concessions. In the administrative law doctrine, the provision on the possibility to resort to arbitration in litigation regarding the administrative contracts is often expressed, because the competent administrative court and, on the other hand, the arbitration is a specific institution of commercial law, where the parties are in a position of legal equality. In our opinion, in relation to the positive law provisions previously analyzed, we consider that it is no longer possible to deny the possibility of inserting, under the law, the arbitrary arbitration clauses in litigations concerning administrative contracts.
Key-words: arbitration, administrative contracts, public procurement, public concessions, administrative law.
JEL Classification: K23, K41


 

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