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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 3, Decembrie 2019

Cuprins



Articol 1 - Brexit - the 2016 referendum on European Union membership

Rezumat

This article explores the Brexit referendum, focusing on the political events that led to the vote, namely, the Conservative Party’s return to power, David Cameron’s attempts to appease the European divide within his party and the role played by the British Parliament in the whole process. It then discusses whether the referendum was the most suitable way to decide on European Union membership, considering the sovereignty of the British Parliament, as well as the contrast between representative democracy and direct democracy.
Key-words: Brexit; European Union; referendum; representative democracy; United Kingdom
JEL Classification: K33



Articol 2 - EU Integrated Maritime Policy and multilevel governance

Rezumat

Marine and coastal environment are under pressure from several pollution sources. Most of the environmental law was developed on a sectoral basis and does not reflect the interdependence of the various issues and their solutions. Since the adoption of Blue Book, EU legislation to protect the marine environment has been progressively implemented in many relevant areas: Fisheries, Shipping, Tourism, energy, etc. The Integrated Maritime Policy covers several cross-cutting policies, more specifically blue growth, marine data and knowledge, maritime spatial planning, integrated maritime surveillance, and sea basin strategies. Oceans and sea are influenced by many activities, interests and policies and are interlinked. A holistic, integrated approach is the best way to handle maritime affairs, with States cooperation not only on an EU States basis but also with third States and International Organizations. International Organizations provide an essential forum for international cooperation in relation to environmental issues. In this context they have two important roles to play: environmental policy-making and the development of international environmental law.
Key-words: marine environment protection; ocean governance; integrated maritime Policy; maritime spatial planning.

JEL Classification: K23, K32, K33, K39



Articol 3 - Workers’ rights. A new perspective

Rezumat

What will be the effects of the current trend in Labour Law of emancipation from the constraints of contractualism? Could the worker be regarded as other than a contracting party and his/her actions be addressed beyond purely contractual rights and obligations? The worker does not limit himself/herself today to the performance of the work tasks, but acts as a citizen in the workplace; it is a reality calling for new theoretical approaches, away from the contractual constraints. The individualization of labour law appears as the result of the evolution of the rules of labour law, which contributes to promoting the figure of each employee as an independent and unique human being. This paradigm shift also generates changes in the relationship between labour law and human rights protection; none of the two being currently estranged from the orientation towards the individual (and not to the collectivity). Labour law cannot resist to post-modern, individual-centred approaches that shift the focus from the group – to persons, recognizing (and celebrating) the uniqueness of each of them. The paper offers an approach to the rights of the worker from the perspective of human rights, by investigating the advantages and disadvantages of such an extension. It seeks to identify the obstacles between the two categories of rights and the extent to which they could be overcome.
Key-words: labour law, human rights, workers’ rights, International Labour Organisation.
JEL Classification: K31



Articol 4 - “Human security” as a new concept of international security of the 20th century

Rezumat

Actually, the second part of the 20th century characterized by the beginning of the conceptual understanding of “human security” in a system of the international security and international law, in general. It had linked with the historical past, such as world wars, many local military conflicts which claimed the lives millions of people, repressions, scientific and technological progress (the invention of nuclear weapons, various weapons of mass destruction), etc. Besides, it has linked with the present, such as terrorism, human trafficking, acts of aggression, etc., that entails the inevitable destruction of mankind, where the safety/security plays a crucial role. That`s why, in the early 1990s, the concept of “human security” was introduced into the international discussion. A number of international instruments of the universal and regional character were adopted about the issue of the protection of human rights in the context of “human security”, was termed the new concept of the 20th and the 21st centuries. In this context, the essential objective of this manuscript is the analysis of doctrinal, legal understanding of the concept of the “Humans Security”, taking into account the present conditions and the example of Ukraine (the situation of the East part of the country).
Key-words: human security; human safety; human rights; security system.
JEL Classification: K33, K38



Articol 5 - New trends in multi-faced corruption - a continuing obstacle for fair business in Bulgaria: our response

Rezumat

The focus of this paper is the corruption in economic and business relations in Bulgaria and the registered new trends. This type of corruption impedes economic development, causing distortions and inefficiencies, hence the necessity of an adequate response. The current meta-analysis of the available literature and the researched practice in a chronological and structured way is trying to explore the latest developments of the theory, legislation, institutional decisions and social attitude towards corruption and to present new approaches and ideas for a solution to the problem. Special attention is paid to the relatively new phenomenon "private-to-private" corruption, the new Bulgarian Act on Counteracting Corruption and on Seizure of Illegally Acquired Property 2018 and the best practices for fighting corruption and investigating fraud with EU funds. Some extra proposals for improvement of business climate are offered with a recommendation for probation. If all that is successful, it could be extrapolated in other fields, countries, etc.
Key-words: corruption, business environment, anticorruption legislation and mechanisms, European dimension.
JEL Classification: K14



Articol 6 - Individualization and development of international investment law as the third millennium law field

Rezumat

Approaching such a subject is undoubtedly of particular scientific interest, contributing to the clarification of several aspects regarding the content and delimitation of international investment law, with an emphasis on the law and doctrine of international law, but also on the jurisprudence of international courts. The originality and scientific innovation resides in the way of approaching the research of the legal regime of foreign investments, both from the point of view of interdisciplinarity, interference and interconnections between the fields of incident law, as well as by identifying a coagulating, unifying factor – t he international justice and the mechanisms that are put into operation. This approach calls for the creation of a learning mechanism, of study within the university framework of the discipline of International Investment Law and the deepening of the specific notions and problems within some master programs.
Key-words: foreign investments, research, new field of law, interconnections.
JEL Classification:
K11, K23, K33



Articol 7 - Non-recognition of states as a specific sanction of public international law

Rezumat

This article analyses two of the most controversial institutions of public international law: the recognition/non-recognition of states and the sanction in public international law, arguing why the non-recognition of states represents one of the specific sanctions of the public international law. The purpose of this article is to bring a novelty value to the current stage of research, by analysing a specific sanction of public international law: the non-recognition of the states created by disregarding international rules, especially the jus cogens ones. Therefore, the research hypothesis of this article is as follows: the nonrecognition of states represents a specific legal sanction of public international law which intervenes as a results of the violation of some jus cogens rules in the process of creating the new state that wants its recognition.
Key-words: non-recognition of states, sanction, public international law, jus cogens.
JEL Classification: K33



Articol 8 - Bulgarian perspectives on the abuse of rights in lights of the Directive 2011/7/EU on combating late payment in commercial transactions

Rezumat

The subject matter of this research is the abuse of rights in context of the late payment in commercial transaction. The abuse of rights as a law concept is well known in continental law families dates back to ancient Roman law. Considering the vision of the Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transaction3 the Bulgarian legislation offers a new point of view of that concept which is currently been discussed in this article as a new law concept. That point of view has been considered by the author as an abuse of interests instead of abuse of rights. That vision was legislative introduced by the provisions of Art. 303а, paragraph 1-2 BCA and Art. 309а, paragraph 3 BCA in response to the requirement of acquis communautaire4. As well as the abuse of interests is considered as a new law concept there is a necessity of a clear explanation of that notion and criteria for distinguish it from the old concept of the abuse of rights.
Key-words: abuse of rights; BCA – Bulgarian Commerce Act; OCA – Obligations and Contracts Act; CRB – Constitution of the Republic of Bulgaria; BGB – Bürgerliches Gesetzbuch; ABGB - Allgemeines Bürgrliche Gesetzbuch.
JEL Classification: K20, K22, K33



Articol 9 - Division of offences carried out on human corpses due to their statutory object of protection

Rezumat

The purpose of the article is to demonstrate the lack of uniformity in determining the subject of protection of crimes performed on human corpses or their resting place. The conclusions were drawn from the analysis of 48 penal codes, including 15 European, 12 Asian, 9 African and 11 American. It has been shown that the investigated offenses do not constitute a homogeneous group due to the statutory object of protection. An attempt was also made to answer the question whether non-legal factors, such as religion, social development, economic development or the level of democratization in selected countries have an impact on the definition of the object of protection of given crimes.
Key-words: desecration, deceased, corpse, criminal law.
JEL Classification: K14, K19


 

Articol 10 - Legal treatment of franchise in Northern Macedonia and Republic of Kosovo

Rezumat

In this paper, franchise is treated as a way of transferring knowledge and experience as well as trademarks. The concept of exclusivity is most often defined as a method of marketing goods and services. Of course this kind of definition is insufficient. Franchising is more than a method of distribution, a specific way of financial impoverishment of meaning without an investment of its capital by the franchise. The business people franchising system gives the experience and the right approach to the methods and enables them to gain from the brand reputation that defined the reputation. This paper aims to highlight the importance of legal treatment, as the franchisor enables the legal circulation not only of goods and services but also of rights such as trademarks. The focus of legal treatment is on the Republic of Northern Macedonia and Kosovo. For these two countries, we have also presenting franchise data. In this paper besides the historical aspect, I am also analyzing the legal sources related to franchising in the European Union. These two states have an obligation to bring their legal systems into line with those legal sources that apply to European Union law.
Key-words: franchise, legal, normative, Northern Macedonia, Kosovo.
JEL Classification: K12, K22



Articol 11 - Formation of the forensic approach to the study of non-verbal information in criminal proceedings

Rezumat

The article is devoted to the formation of theoretical basis of the forensic approach to the study of non-verbal information in criminal proceedings. The authors have carried out the analysis of different approaches to study of non-verbal information. Formulating the forensic approach to the study of non-verbal information will allow correct determining the content of such information, successful use of it in practice, which will ultimately facilitate timely and complete disclosure of crimes. The purpose of the research in the field of non-verbal information is to develop new knowledge about the physiological and psychological state of a person in criminal proceedings. The article focuses on the definition of the legal status of a non-verbal information specialist. The provisions of the current Criminal Procedure Code of Ukraine are analyzed. In order to improve the legal regulation, the conclusion about the necessity to amend certain norms of the main criminal procedure normative legal act of Ukraine is made.
Key-words: criminal procedure of Ukraine, non-verbal information, criminal proceedings, specialist.
JEL Classification: K14



Articol 12 - Exemption from liability according to the art. 79 of the Convention on International Sale of Goods (CISG)

Rezumat

Unlike other international documents with regards to international sale of goods, impediments providing an exemption from liability to the promisor are regulated broadly in Art. 79 of the CISG in order to ensure uniformity, which is the main objective of the Convention. Within this framework, this paper first deals with the sphere of application of Art. 79 CISG followed by the prerequisites for exemption of liability under Art. 79. Evaluating the impediment in this context, it is discussed whether cases of hardship would benefit from the protection provided by the Art. 79 along with cases of force majeure. Subsequently, liability for third persons, temporary impediments, and consequences of exemption are analyzed.
Key-words: exemption from liability, Art. 79 CISG, force majeure, hardship, exemption under CISG.
JEL Classification: K22, K33


 

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