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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, Numar Special, Octombrie 2019

Cuprins



Articol 1 - Effect of the European Court of Human Rights case-law on judgments of Polish courts in the crime of hate speech

Rezumat

The Convention on the Protection of Human Rights and Fundamental Freedoms and judgments of the European Court of Human Rights set the basic direction of judicial practice in Poland by introducing elementary principles of human rights observance by public authorities. The aim of the study was to analyze the impact of selected judgments of the European Court of Human Rights on the judicature of courts in Poland regarding the limits of freedom of expression in the context of the hate crime. The basic standards and the level of freedom of expression in Polish law, as well as judicial practice in this respect, have been defined. The analysis of standards has been limited to the aspect of the limits of freedom of speech in the context of hate speech. The scope of protection of statements in Polish law is, in principle, consistent with the ECHR jurisprudence. It follows that it is generally acceptable to extend the scope of penalization of statements containing incitement to hatred and violence of a racist or xenophobic nature, in particular, if they take the form of public insults, slander or threats. The jurisprudence of Polish courts is increasingly in line with international standards.
Key-words: hate speech, freedom of speech, European Court of Human Rights, criminal law.
JEL Classification: K14



Articol 2 - Legal issues of development of organic farming in Ukraine

Rezumat

The theoretical principles of organic farming development in Ukraine are substantiated. The concept and features of the land for organic farming, especially the legal regime of such land are revealed. The analysis of legal forms of land use for organic farming was carried out. The main advantages of using an organic land plot on the basis of emphyteusis are analyzed. The subjects of land use for organic farming have been investigated. The prospective directions are determined and proposals on the improvement of the current legislation of Ukraine are developed. These include the development and approval of criteria for determining the suitability of agricultural land for use in the process of organic farming, resolving at the legislative level issues related to soil conservation and the protection of their fertility, the development and approval of norms of their qualitative condition that would meet the requirements of cultivation organic products of plant origin. In addition, there is a need for legal separation of agricultural land on which organic products are grown, taking into account the specific use of these lands and establishing their special legal regime.
Key-words: organic farming; Ukraine; the Land Code of Ukraine; agricultural land.

JEL Classification: K11, P48, P14, D86



Articol 3 - The EU Arctic policy and its critique: a view under Tocci´s theory on foreign policy and normative power (Part 2)

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 4 - The object of criminal law

Rezumat

In current criminal law doctrine, the prevailing opinion is that criminal law regulates both the criminal offence and the punishment. Moreover, this opinion coexists with another, according to which criminal law regulates a subjective right of the state to punish and therefore generates a “legal relationship” between the state and the offender. Such opinions are, however, fallacious and, in order to clarify the matter, the author provides an insight through the philosophy of law, helping her highlight several aspects, such as: the fact that the sanction is not a juridical (legal) norm element; the fact that any juridical (legal) norm comprises a precept and a hypothesis; the fact that two vast categories of juridical (legal) norms can be distinguished, namely “determining norms”, which regulate obligations, and “sanctioning norms” (coercive ones), regulating sanctions etc. Next, by analysing the criminal provisions, from this perspective, the author formulates five conclusions, as follows: the fact that there is no “subjective right” to punishment; that fact that a criminal offence is not “regulated” (legislated), but forbidden by the law; the fact that the object of criminal law has to be determined starting from general criminal norms instead of incriminating norms; the fact that criminal law is self-regulating (it sets forth the scope and content of criminal laws); the fact that the punishment is the fundamental notion in any criminal law.
Key-words: incrimination, penalty, punishment, criminal law.
JEL Classification: K14



Articol 5 - Challenges and perspectives of administrative judiciary in the Republic of North Macedonia

Rezumat

The development of administrative judiciary in the Republic of North Macedonia went through various phases after its independence in 1991. 16 years after its independence, in late 2007 the Administrative Court was established as one of the holders of the judiciary in judicial system. Before the establishment of this court, the administrative dispute was under the jurisdiction of the Supreme Court. The Administrative Court appears as a guarantor for exercising the rights guaranteed by the Constitution and the laws before the administrative bodies, which provide court protection in the event of an unlawful conduct by the administration. For this reason, administrative justice plays a key role in the lives of citizens who seek it when they consider that state authorities are preventing the enjoyment of a constitutional or legal right, or that they are imposing an obligation outside the legal rules. With this paper the author by explaining the process of development of the administrative judiciary using: normative legal method, comparative legal method, systematic and objective interpretative methods, will focus on the specific analysis of ineffectiveness of administrative justice in the practice, which is due, first of all, to the lack of a mechanism for implementing the judgments of the Administrative Court.
Key-words: administrative bodies, administrative dispute, administrative justice, administrative case law, full dispute, dispute for annulment of administrative act.
JEL Classification: K23, K41



Articol 6 - The Constitutional Court of Ukraine as the main actor in safeguarding of the Constitution

Rezumat

This article deals with the main issues of the constitutional justice in Ukraine – its concept, significance and the main principles of development. In this article we try to research pure, clear vision, essential and effective mission of the Constitutional Court of Ukraine on legal and political chessboard of Ukraine, keeping in mind its prominent sole role in constitutional justice. Main objective of this study is to examine the trajectory of legal and political development of the Constitutional Court of Ukraine and to demonstrate the impact of its opinions and decisions on legal doctrine of Ukraine. In this study regarding the constitutional justice in Ukraine we used few mixed research methods to obtain specific scientific results: observation, surveys, secondary data analyses, etc. The present study related to the essence of the Constitutional Court of Ukraine, its foundation and trajectory of its development, its key role in constitutional review should be viewed as a follow-up to the one previously published research in Polish. This article might be useful for students and master students of law faculties, practitioners in the field of constitutional law and justice.
Key-words: constitutional court, constitutional jurisdiction, constitutional justice, constitutional review, Ukraine
JEL Classification:
K10



Articol 7 - The US antitrust jurisprudence through the lens of Chicago School and the Transaction Costs Economics

Rezumat

In the mid-70s, the US antitrust jurisprudence finally embraced the economic approaches developed at the University of Chicago on the 30s. The Chicago School of Economics has as its main characteristic the defence of the private economy and of a limited intervention of the government, which underlies the idea that individual freedoms depend on the existence of a system based on private initiative and market economy, affirming the interdependence of capitalism and democracy. This School was fiercely against the excessive intervention of competition authorities and courts in competition, to which attributed as final goal purpose efficiency maximization. From a methodological point of view, Chicago School will be renowned by the importance of neoclassical price theory and empirical analysis. Later, within New Institutional Economics, will rise another economic analysis, such us Transaction Costs Economics and Property Rights Theory, that even though receiving minor attention from the literature, being until now strangely excluded from the economic and legal mainstream of the competition, will also inspire Antitrust Law. The Transaction Costs Economics will demonstrate that the transactions that make up the market are conditioned by the constraints of behaviour and information, giving rise to transaction costs that make markets imperfect. The institutions in this School are, therefore, structures that, by influencing individuals' behaviour, mitigate market imperfections, becoming indispensable in economic analysis. The analysis of these economic approaches will reveal that both gave the utmost importance to transaction costs, as Chicago School, without explicitly mentioning transaction costs, also considered it in antitrust analysis. In this paper, we aim at demonstrating that this proximity between Chicago School and Transaction Costs Economics is reflected in US antitrust jurisprudence. Therefore, it is pertinent to begin by summarizing the main arguments developed by these economic theories, which later received merits by the courts, thus making more evident the effect they had on US antitrust jurisprudence, often ignored by literature. As we will conclude the US antitrust analysis is performed by the Courts through lens of Chicago School and Transaction Costs Economics.
Key-words: Chicago School, antitrust jurisprudence, Transaction Cost Economics, Property Rights Theory.
JEL Classification: K22



Articol 8 - Commercial law developments in Yugoslavia with a focus in the Socialist Republic of Macedonia and Albania

Rezumat

Commercial law is an abstract definition in a central planned economy, but Yugoslavia had a system of its own and in the economic history books it has always a special chapter. It all started with the planned system economy, but very early Yugoslavia followed its own path, namely workers' self-government and a special property form, the so-called social property. Albania instead followed the path of all socialist countries – central planned economy and socialist property. This system can be considered a definition of administrative socialism or etatism.3 This manuscript aims to analyze the commercial reforms in Yugoslavia, Macedonia and Albania and its consequences towards free market economy. A historic and deductive method will be used to analyze the legal reforms that made Yugoslavia a specialty in the communist block..
Key-words: Yugoslavia, Macedonia, Albania, commercial law, property.
JEL Classification: K20, K22, K23.



Articol 9 - Adaptation of Ukrainian legislation on drug trafficking control to the European Union legislation (separate aspects)

Rezumat

Certain aspects of the adaptation of regulatory legal acts of Ukraine in the field of drug trafficking control to EU legislation were studied. The basis of this study uses an interdisciplinary approach using comparative legal, dialectical and systemic methods. Emphasis is placed on the fact that the world community does not have a unanimous opinion on legal issues and areas of the modern drug control regime that would meet the needs of the social and legal society and the current state of the drug situation in the countries of the world, and health problems. It was established that the adaptation of the regulatory legal acts of Ukraine in the field of drug trafficking control, the fight against their use and treatment of drug addiction of patients should be based on the implementation of public health programs. n its areas, should include the prevention of disease, prolonging life and improving the health and well-being of the entire population, including drugaddicted patients, for whom the state has an inherent responsibility. Ukraine participates in Council of Europe conventions which establish common standards for this organization and the European Union, it is important for the legal regulation of drug control in the health field, but some norms of national legislation require consistency with the norms of UN Conventions, and it is important to use positive legislative experience of selected countries of the European Union. It is proposed to amend the regulatory legal acts that will improve legal ways to protect people's rights to health protection.
Key-words: adaptation of legislation, drug control, European Union, legal regulation, international law.
JEL Classification: D86, K23, K33, K38


 

Articol 10 - Regulating negligence in French and Italian criminal law

Rezumat

The modified version of art. 121-3 of the French Criminal Code introduces a hierarchy of the nonintentional forms of guilt according to seriousness. From the perspective of the French legislator, this hierarchy would be the following: deliberate negligence (art. 121-3 para. 2), simple negligence – carelessness, imprudence – (art. 121-3 para. 3) and breaking a duty of care or protection (art. 121-3 para. 4). In the Italian Criminal Code only the conscious negligence is defined, whereas the simple negligence is not defined, but merely exemplified. Thus, article 43 para. 1 states that “There is an offence committed with negligence whenever the result, even though foreseen, is not desired by the agent and occurs because of carelessness, imprudence, lack of skill, or failure to observe laws, regulations, orders or instructions”.
Key-words: criminal negligence, indirect intention, French legal system, Italian legal system.
JEL Classification: K14



Articol 11 - An analysis of the role-players in the enforcement of the Zimbabwean insider trading laws

Rezumat

Insider trading is statutorily prohibited in Zimbabwe. This is primarily aimed at promoting public investor confidence, market efficiency and enhancing the integrity of the Zimbabwean financial markets. As a result, some activities that could amount to insider trading in the Zimbabwean financial institutions and financial markets are outlawed in the Securities Act 17 of 2004 [Chapter 24:25] as amended (Securities Act). Despite these comendable efforts, various flaws and gaps in the aforesaid statute have somewhat impeded the role and effectiveness of the anti-insider trading regulatory bodies and enforcement authorities in Zimbabwe to date. Given this background, the article investigates the role of the relevant enforcement authorities and other key role-players in the detection, investigation and prosecution of insider trading activities in Zimbabwe. This is done by discussing the role of the Securities and Exchange Commission of Zimbabwe (SECZ), the Zimbabwe Stock Exchange (ZSE) and the courts.
Key-words: insider trading, enforcement, role-players, detection, market integrity.
JEL Classification: K22, K33



Articol 12 - Comparative analysis of the legislative standards of examination by the Criminal Procedure Code of Ukraine and the Russian Federation

Rezumat

The scientific article is devoted to the investigation of the examination of a person as a form of investigative actions, which is provided in Russian and Ukrainian legislations. The subject of the study is the criminal procedural legal relations between the participants of examination based on the norms of the Criminal Procedure Code (CPC) of Ukraine and the Criminal Procedure Code (CPC) of Russian Federation (RF). Objectives of the study - the analysis of the existing legislative norms in the criminal procedural codes of RF and Ukraine, as well as, on their basis, the development of new and improving of existing procedural, organizational and tactical measures used in the examination of a person aiming to improve its quality and effectiveness are the subject of the examination. The methodology of the article consists of comparative, formal-logical, statistical and sociological methods. The shortcomings and gaps in its legislative implementation are noted and ways of their solution are presented. The author's approach to conducting examination of a person is proposed with the aim of improving the regulatory and legal regulation of the conducting the examination in the CPC of Ukraine.
Key-words: procedural actions; examination of a person; distinguishing characteristics; traces of crime; witnesses; compulsion; protocol.
JEL Classification: K14, K30, K41



Articol 13 - Revision against judgment in contested procedure, a challenge or legal certainty

Rezumat

In this scientific paper shall be handled a special segment of contested procedure concerning the possibility of submitting revision as one of the extraordinary legal remedies against rendered judgment in contested procedure in a context of critical overview between amendment and supplement of contested procedure current law in comparison to previous law of contested procedure and contested procedure laws of region countries including the former Yugoslav Republic of Macedonia, now The North Macedonia and Bosnia and Herzegovina. Frequent amendments of laws question citizen legal certainty and potential investors especially in those countries with fragile democracies that are going through transition phase, as is the case in Kosovo. Revision is one of the extraordinary legal remedies of appealing final court decisions rendered by the second instance court, which may be submitted due to numerous causes within limits and deadlines provided by law. By revision, may come to correction of substantive or procedural law eventual omission made in the second instance court trial.
Key-words: contested procedure, judgment, revision, Supreme Court, extraordinary legal remedies.
JEL Classification: K40, K41



 

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