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Departamentul de Drept al Academiei de Studii Economice din Bucuresti

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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 9, Numarul 2, Iunie 2019

Cuprins



Articol 1 - Commercial law in Macedonia after 1990

Rezumat

With the Declaration of Independence of 17.11.1991 and the entry into force of the Constitution on 20.11.1991, Macedonia was free to draft its own legislation. But the difficult internal and external situation, the unofficial imposition of the Greek embargo since the end of 1991, and the UN embargo on Yugoslavia, which brought losses of US $ 80 million a month to the new state, had a negative impact on the legislative process3. The 1990 (!) amended Yugoslav company law of 1988,4 which replaced the Organization of Associated Labour as a basic economic subject with the "commercial companies" as a new legal concept,5 organized the economic life in public companies and limited liability companies. All Art.s that regulated the economic organizations in Yugoslavia were abolished. This amendment was in force until 30.5.1996. In this sense, main objective of this manuscript is the analysis of the commercial law reforms in Macedonia after the fall of communism towards a free market economy and EU membership.
Key-words: commercial law, Macedonia, reform, free market economy.
JEL Classification: K22



Articol 2 - Much ado about the Post-Chicago School

Rezumat

In the middle of the 80s, an economic approach, that brings together a group of academics that stand out by the harsh criticisms to the approach of the School of Chicago towards competition, arouses interest among the scholars. This school will call into question some of the foundations and justifications presented by the Chicago School, by questioning, in first place, the single monopoly profit theory. In this sense, these authors will develop a set of models designed to demonstrate that the monopolist in the primary market has incentives to monopolize the secondary market. This School will also analyse the vertical restraints, standing out the development of Raising Rivals´ Costs Theory and offer an explanation for free-riding. The Chicago School, on the other hand, is a coherent and heterogeneous economic school, responsible for the theory of oligopoly and collusion, which, by advocating the criminalization of price fixing, proceeded to analyse the anticompetitive effects of predatory pricing and various restrictions vertical. In this paper, we aim at demonstrating that the roots of the Post-Chicago School go back to the Chicago School, highlighting the contributions of Director and Levi in the construction of the Raising Rivals´ Cost Theory and, considering the connection between the Chicago school and Transaction Costs Economics, the most complete empirical analysis of this theory led by Elizabeth Granitz and Benjamin Klein. The continuous omission of the Transaction Costs Economics, considering the steadiness between both, is one of the most negative aspects of this school, which can only be explained by the fact that heterogeneity of the Chicago School and Transaction Costs Economics unmask much of the criticism knitted. Post-Chicago School, as we will conclude, will be incapable of thwarting the ideological premises of the Chicago School.
Key-words: Chicago School, antitrust law, the Raising Rivals' Costs theory, Post-
Chicago School.

JEL Classification: K22



Articol 3 - Overview on the legal instruments of the Council of Europe in the field of administrative law

Rezumat

The interest in administrative justice has been growing in many countries recently. At the core of an accountable and transparent administration is the right to effectively challenge acts and decisions that affect civil rights and obligations, and so also the daily life of individuals. Effective means of redress against administrative decisions require a functioning system of administrative justice that provides fair trial guarantees. Administrative justice is not limited to the guarantee of citizens’ rights. Its justification also lies in the necessity to defend the public interest and to guarantee a balance between individual rights and the public interest. An administrative-court proceeding should be public, held within a reasonable time, undertaken by an independent and impartial tribunal established by law, and result in an enforceable judgment that shall be pronounced publicly. In addition to interpreting the rights, the Strasbourg Court has pointed out that it must be borne in mind that the European Convention on Human Rights (ECHR) is intended to guarantee rights that are practical and effective. This paper will analyze the certain provisions of the European Convention on Human Rights regarding mainly with the right to a fair trial and the right to an effective remedy and will try to give a concise retrospective to some of the most interesting cases of administrative nature decided by the European Court of Human Rights. Further, it will emphasize the framework of the Council of Europe of existing and applicable recommendations in the area of administrative law starting with alternative ways of resolution of administrative disputes and giving closure with execution of administrative and judicial decisions.
Key-words: recommendations; administrative dispute; judicial control; fair trial; effective remedy; public authorities.
JEL Classification: K23, K33



Articol 4 - Protecting the rights of foreigners to investment-attractive land plots in Ukraine

Rezumat

The normative legal acts that define the basic guarantees and which are based on protection of foreign investments in Ukraine are analyzed. The emphasis is on the special legal regime of economic activity in the special (free) economic zones, on the territory of which are implemented preferential customs, monetary, financial, tax and other conditions of economic activity of foreign legal entities and individuals. It is determined that industrial parks are one of the most common types of special economic zones. The procedure of acquiring ownership of land plots, which is planned to be used for creation and functioning of the industrial park and subjects of the special regime of management within the industrial park, is considered.
Key-words: ownership of land by foreigners; protection of rights to land; investments; industrial park; special economic zones.
JEL Classification: D86, K11, K22, P48, P14



Articol 5 - The impact of the new Chinese Foreign Investment Law 2019 on the administrative legal system governing foreign investments and implications for the investment relations with Lusophone Markets

Rezumat

In March 2019, China revamped its domestic legal regime governing foreign investments with a new Foreign Investment Law that will enter into force in 2020 (‘FIL- 2019’). The paper examines how the new law impacts the administrative control of foreign investments in China. Given the past approach of China, using administrative legal measures in diverse legal instruments to regulate foreign investments, how the FIL 2019 abolishing/consolidating those instruments increases or decreases the scope of administrative control of foreign investment is an intriguing question facing foreign investors and administrative law scholars alike. In a similar vein, the potential implications of the new FIL 2019 upon specific foreign investment relations becomes equally significant. The FIL 2019 could not only trigger new reciprocity concerns viz-a-viz certain host states of Chinese outward investments, but also may demand the revision of some existing Chinese BITs with foreign states. The paper makes a brief reference regarding the general implications of the new law upon the investment relations with specific Lusophone host markets (for which, Macau SAR is the official facilitator of Economic Relations). Based on the findings, the paper concludes with a discussion on some future course.
Key-words: foreign investments, administrative control, PRC administrative law, Foreign Investment Law 2019.
JEL Classification: K22, K23



Articol 6 - The EU Arctic policy and its critique: a view under Tocci´s theory on foreign policy and normative power (Part 1)

Rezumat

What is the role of the European Union (EU) in the Arctic region? On what basis does it claim influence and/or authority (if any) over part of this vast area of the world? What can we learn about EU Arctic policy, tools and instruments adopted so far? Is the EU a normative foreign policy actor as described by Tocci´s theory? What factors do influence the adoption and validity of EU policies in this region? This study tries to reply to all these questions casting a light over an area of great geostrategic importance and at the crossroads of historic developments. In a first part we study the current EU Arctic policy and assess its strength and weaknesses according to literature. In a second part we summarize Tocci´s theory on kinds of normative policy actors and examine what kind of power is the EU exercising in the region.
Key-words: Arctic, EU policy, normative foreign policies, Tocci´s theory
JEL Classification:
K32, K33



Articol 7 - Two faces of “international administrative law”

Rezumat

The term “international administrative law” (diritto amministrativo internazionale, droit administratif international, internationales Verwaltungsrecht) remains an enigma of public law. Since the 1900s, the term has been traditionally understood in two different ways. On one hand, some authors (J. Gascón y Marín, P. Kazansky, A, Rapisardi- Mirabelli) used this term regarding the administrative competencies of those various “international administrative unions”. On the other hand, other authors (P. Fedozzi, K. Neumeyer, G. Biscottini) used the term to exclusively refer to the norms of national administrative law, which address certain foreign elements; i.e. as a parallel to the discipline of international private law. This article deals with these two different understandings of “international administrative law” and with their impact for recent developments in legal scholarship. The article also addresses currently renewed interest in the “international administrative law” and its consequences for the newly established doctrine of “global administrative law”.
Key-words: international administrative law, international administrative unions, law of international organizations, delimiting norms, global administrative law.
JEL Classification: K23, K32



Articol 8 - Compensation of damages to victim of criminal offence under Criminal Procedure Code of Ukraine

Rezumat

A significant number of criminal offenses affects the life, health or property of citizens, accompanied by physical, property or moral harm. It must be admitted that the most important right of a victim in a criminal procedure is the right to compensation for damages caused by criminal offenses. Today, in Ukraine, the legal regulation of the victims’ right to compensation is not in line with constitutional guarantees, therefore measures from the state to strengthen these guarantees are relevant. In this view, international instruments that regulate the compensation for victim in the criminal procedure are analyzed, as well as the practice of developed countries. The evolution of the Ukrainian legislation concerning compensation to the victim in the criminal process is described.The difference in the terminology of international acts, acts of developed states and Ukrainian legislation in relation to compensation to victim is revealed. It is concluded that it is worthwhile to use the term “compensation”. It is noted that Ukraine needs to take into account the experience of foreign countries in compensating for the harm caused to victim in a criminal procedure at the expense of the State budget. This mechanism can be implemented by creating a State Victim Assistance Fund that would function as a specific credit institution.
Key-words: criminal procedure of Ukraine, victim, compensation of damages, property damages, moral damages, harm, criminal offence, repair of damages.
JEL Classification: K14



Articol 9 - The financial independence of the Romanian Parliament

Rezumat

Romania4 is a unitary state and constitutional democracy5 organised under the principle of the separation of powers between the three branches of government – legislative, executive, and judicial – and the checks and balances between them. Since its creation in 1862, the Romanian Parliament has traditionally been a bicameral legislature, except during the communist era, a period during which it only had a single house. The desire to put an end to the top-down policies that characterised the communist era was an impetus for Romanian voters to return the legislature to its former bicameralism by recasting the Romanian Parliament as a legislature composed of two houses, the House of Representatives and the Senate.6 Senators and representatives are elected to four-year terms by universal suffrage in free, secret, and equal popular elections. Both representatives and senators are elected via the same voting mechanism, that is, by partylist proportional representation.7 The manner in which the two houses are organised and function, as well as their funding, is set out in the Constitution and in a number of legislative and regulatory texts. In a first part (1), this article will analyse the rules for creating, implementing, and auditing the budgets of the two houses – which are the result of a patchwork of laws and regulations governing the Romanian Parliament – setting the stage, in a second part (2) for the evaluation of the quantitative change in the two houses’ budgets, as well as the different ways of overseeing their spending.
Key-words: Romanian Parliament, financial independence, budget, financial law.
JEL Classification: K10, K34


 

Articol 10 - Controversies traced out in the definition of prostitution in the Moldovan legislation

Rezumat

Practicing prostitution in the Republic of Moldova is an administrative offence. Thereat, any attempts of enticing, coercing or facilitating engagement of a person into practicing prostitution is regarded as an offence of pimping. Likewise regarded as an offence of pimping is the case when the offender is taking advantage of recruiting certain persons into practicing prostitution. In October 2018, the Parliament of the Republic of Moldova proceeded to pass a law giving the following definition to the notion of “prostitution” – gratification of sexual desire of a person by any method and/or means in return for money, including such as the use of information technologies or electronic means of communication. Thereat, one could derive that dissemination of the erotic webcam performances via the Internet for certain category of website visitors against payment might constitute prostitution. Clearly highlighted in present article was the fact that the like activities constitute pornography rather than prostitution. Prostitution require a physical contact. The authors have demonstrated that the definition of prostitution provided by the law contravenes to the case law of the Constitutional Court of the Republic of Moldova as well as to some of the regulations passed under the auspices of the Council of Europe and European Union. Finally, the authors suggested a new wording for the notion of prostitution, i.e.: engaging in sexual activity with different individuals benefiting on the services provided by female or male prostitutes, the latter thus pursuing to acquire the means of subsistence or the main source of livelihood.
Key-words: prostitution, cyberprostitution, pornography, erotic video-chat, erotic shows, sexual services online, case law divergences, predictability.
JEL Classification: K14, K19, K38



Articol 11 - Problems of implementation of whistleblower institution in Ukraine

Rezumat

The article deals with the study of problems regarding prevention of corruption. Based on the studies of national and foreign research papers, the authors proved that such problems became the most urgent themes of modern scientific researches. The origin of the concept of “corruption” was analyzed; it has been stated that different approaches to the definition of corruption are based on legal or normative aspects, and those based on social aspects are different from those based on the understanding of the public service and social interests. It has been proved that one of the most effective tools for combating corruption in the world is using whistleblowers. The main problems of whistleblowers implementation in Ukraine were studied. It has been noted that Ukrainian society ambiguously perceives the whistleblowers institution. Rejecting of corruption whistleblowers by the society negatively affects the effectiveness of preventing this phenomenon. The authors have analyzed social and political problems concerning creation of anti-corruption court in Ukraine and its possible positive influence on the effective process of combating corruption.
Key-words: prevention of corruption, national and foreign experience, whistleblowers institution, social and legal protection of whistleblowers.
JEL Classification: K14, K42



Articol 12 - Fiscal legislation and protection of the environment on the European and national level. Relevant jurisprudence of the European Court of Justice and the Constitutional Court of Romania

Rezumat

Legal fiscal tools may represent a “powerful engine” to strengthen environmental protection. They mainly refer to eco-taxes, reduction and/or exoneration of taxes, taxes dedicated to actions in favor of the environment protection. Relevant examples on the “internalization” of related costs through taxation, as well as para-fiscal taxes may be offered, together with a perspective of new fiscal policies developed on international and European level. In Romania, several legislative acts in the respective area have been adopted and implemented, starting with 2008, followed by several decisions of the national courts, as well as relevant judgments issued by the European Court of Justice (CJEU), declaring the national legislation as being incompatible with the texts of the Treaty. A legal provision of the European law may be used within the framework of the review of constitutionality, as an indirect rule of reference, pursuant to Art. 148(2) and (4) of the Constitution of Romania.
Key-words: fiscal legislation, protection of the environment, Court of Justice of the European Union, Constitutional Court of Romania.
JEL Classification: K32, K33, K34



Articol 13 - Perspectives of evolution of legal solutions concerning entrusting by local self-government units the public tasks to perform with other entities against the background of Polish law

Rezumat

On the local self-government units - municipalities, counties and voivodships - exercising public administration in Poland on the principle of decentralization of public authority, there are numerous public tasks to perform, including in particular the own tasks serving the collective needs of members of local self-government community. These tasks could be carried out by local self-government units using their own entities - organizational units, budgetary establishments, as well as municipal companies created - but could also be entrusted to perform with other, separate entities, especially non-public entities. The forms of entrusting by local self-government units the tasks with entities outside self-government structure are regulated by Polish Act of 1996 on municipal economy. The provisions of this Act were subject to several amendments in the analyzed scope. With entrusting by local self-government units the public tasks to separate entities, especially non-public entities, there are connected numerous problems that have not been solved so far. They concern the subjective scope of entities to which it is possible to entrust public tasks by self-government units, the basis and nature of the entrustment, the scope of entrustment, the legal status of the entity entrusted with tasks, obtained as a result of entrusting public tasks, the principles on which the entrustment is based, the effects of entrusting, the responsibility for performing the entrusted tasks. Taking the above into account, the scientific purpose of the research is an identification and determination of specific problems related to entrusting the performance of public tasks by local self-government units with separate entities, especially private entities, against the background of Polish law and determination of the perspectives of evolution of legal solutions concerning such entrusting.
Key-words: local self-government, public tasks, entrusting public tasks, non-public entities.
JEL Classification: K23



Articol 14 - Legal regulation of procedure for advance pricing agreements in Ukraine

Rezumat

Advance pricing agreements (APAs) are globally widespread as an instrument of providing the balance of interests between bona fide taxpayers and fiscal authorities. Ukraine has attempted to use such instrument since the introduction of the transfer pricing control. Nevertheless, no APA has yet been concluded in Ukraine. The authors use methods of comparative legal analysis, historical analysis and legal modelling to describe the evolution of the normative regulation of the procedure for APAs and reveal the factors which have impacted on the attractiveness of APAs for taxpayers. There are also a few propositions on improvement of the procedure for APAs in Ukraine, which are formulated on the basis of best practices of developed and developing countries. Proposed changes concern the opportunity to revise APAs, the introduction of special features in the procedure for APAs in case of their bi- or multilateral character and the alignment of the access to the procedure for APAs in Ukraine.
Key-words: transfer pricing; advance pricing agreements; taxpayers’ rights; taxation; legal regulation; tax law.
JEL Classification: K34; H25



Articol 15 - A comparative synopsis of the statutory prohibition of insider trading in Namibia and South Africa

Rezumat

Insider trading is statutorily prohibited in both Namibia and South Africa. Nonetheless, insider trading activities are reportedly still occurring with some degree of frequency in the Namibian and South African financial markets. Given this background, the article comparatively explores the regulation of insider trading in Namibia and South Africa. This is done to investigate and scrutinise the adequacy of such regulation. In this regard, the relevant provisions, penalties, remedies and other enforcement approaches contained in the Namibian and South African anti-insider trading legislation are discussed. The authors submit that the Namibian anti-insider trading regulatory framework is relatively more flawed and inadequate than that of South Africa. Accordingly, the article discusses the statutory prohibition of insider trading in Namibia prior to, and subsequent to 2004 in order to isolate such flaws. Thereafter, recommendations and enforcement approaches that could be incorporated in the relevant Namibian insider trading laws from the South African anti-insider trading regulatory framework are briefly discussed.
Key-words: insider trading, enforcement framework, market abuse, penalties, regulation.
JEL Classification: K22, K33



 

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