Revista editata de:
Editura ASE
Departamentul de Drept al Academiei de Studii Economice din Bucuresti


Societatea de Științe Juridice și Administrative

ISSN: 2247-7195
e-ISSN 2248 – 0382
ISSN-L 2247 – 7195

Frecventa aparitiei:
3 numere / an




Editura ASE

Volum 10, Numarul 1, Martie 2020


Articol 1 - Constitutional pluralism and legal perspectivism in European Union law


During the past decade, new theories of (constitutional) pluralism have challenged the classic authority and primacy of EU law as asserted by the classic jurisprudence of the Court of Justice of the European Union. This school of thought, represented by many different authors, has tried to construct a new horizontal relationship between legal orders and European supreme jurisdictions. Constitutional pluralism has enjoyed doctrinal success but also received harsh criticism. This study reviews the most important literature and argues that the (constitutional) pluralism diverse strands of scholarship represent a continuation of what, in philosophical terms, can be termed “legal perspectivism” as conceptualized by Spanish philosopher Ortega y Gasset in 1923. It explores the question when EU law should have higher authority and primacy over national constitutional laws from both classic and new perspectives. No legal theory of EU constitutional law has so far been universally accepted by all actors. It concludes with the finding that the critique to the unconditional authority of EU law that constitutional pluralists have brought to the European field is still alive and extremely relevant both in theory and in practice.
Key-words: European constitutional law; European integration; legal pluralism; literature; legal perspectivism.
JEL Classification: K10, K33

Articol 2 - Totalitarianisms and the establishment of objective legal order


The order of liberal political systems is the result of the dialectic between objective and subjective. It is based on the understanding of freedom as a formal, constitutive condition of society. Totalitarianism denies this dialectic, while altering at the same time the objective and the subjective meanings of order. This is why they cannot be valid legal orders, either in the objective sense, or in the subjective sense. The purpose of our study is to analyze the arguments that support the idea that the “concrete” orders of totalitarian regimes cannot be considered objective legal orders. The arguments are structured in four directions of analysis: 1. basing totalitarian order on legitimacy eliminates the need for legality; 2. totalitarian order is not a system of norms, but one of forces; 3. in totalitarian orders the distinction between norm and measure is no longer made; 4. the rules generated by totalitarian order are no longer the result of any institutionalization. The conclusion that emerges from these arguments is that in totalitarian systems objective law does not exist validly. If the Nazi and the communist languages still retain the term “law”, totalitarian thinking destroys the very concept of law.
Key-words: totalitarianism, nazism, communism, liberalism, legal order, legality, legitimacy, validity.

JEL Classification: K10, K38

Articol 3 - Interest in the context of tax relations: traditional approach and trends of tax management development


The article deals with the definition of interest in taxation, its manifestations and features of its varieties, applied aspects of implementation. It focuses on the process of tax management, which is based on the interconnection of private and public interest. The authors emphasize that the private and public interest in taxation is implemented through the processes of rulemaking and law enforcement. It is proposed to define the rational combination or balance of private and public interest in taxation as the fair balance between the need to ensure the sustainable functioning of the tax system and the proper satisfaction of the economic and social needs of a particular taxpayer. The authors use methods of comparative legal analysis and legal modeling to describe the relationship between tax management and ensuring the implementation of private and public interest. The following is proposed in the context of the study: the definition of the content and legal nature of private and public interest in taxation, the disclosure of the peculiarities of their combination during the establishment and collection of tax payments in the state, the implementation of a comparative analysis of domestic and foreign legal doctrine and legal practice in this area.
Key-words: interest, tax relations, tax policy, tax management..
JEL Classification: K34, H21

Articol 4 - The legal nature of the individual employment contract in the spirit of Kosovo's integration in the European Union


As a legal notion, freedom of work and the right to work are respectively the freedom and the right to work or not to work. This thesis is closely related to the action rule of the labour market supply and demand law. Kosovo, on national level, has promulgated a number of laws deriving from labour law, adapting them to international laws and European Union standards. This approach of Kosovo has to do more with its needs and aspirations to join international organizations. The purpose of this paper is the research through statistical data and facts published in the annual reports of state bodies and non-governmental organizations on the practical implementation of the European Union and the International Labour Organization labour legislation and standards in the Republic of Kosovo. Empirical character research findings have concluded that labour rights violations in Kosovo are evident and widespread both in the public and private sector, without exception, and these labour rights violations continue.
Key-words: employee; employer; labour inspectorate; labour legislation; individual employment contract.
JEL Classification: K31, K33

Articol 5 - Personal data protection and liability for damage in the field of the internet of things


This article analyzes the concept and legal issues of the Internet of Things to explore whether the existing legal framework is appropriate to deal with this new phenomenon. It examines the system of legal issues in the field of the Internet of Things and the ways of their solution. The attention is paid to the personal data protection issue. The conclusion is made about the necessity to ensure the realization of GDPR provisions concerning privacy outside the European Union, which is possible by the conclusion of international agreements with non-EU countries. The article also considers how it is possible to deal with damage caused by the Internet of Things. This takes into account conditions of compensation of damage caused by IoT devices. The necessity of self-regulation in the field of the Internet of Things for ensuring information security and preventing damage caused by the Internet of Things is emphasized. This would be possible in case of close cooperation between technology companies and civil society. Such an approach would minimize government intervention in this area, which would contribute to the rapid development of innovative technologies.
Key-words: Internet of Things, GDPR, personal data protection, information security, privacy, compensation of damage.
JEL Classification: K15, K22, K24

Articol 6 - The natural environment. The development of an institutional protection framework - a permanent concern of the European Union


The environmental policy is a relatively new field in the European Union, even at the level of the current year, 2019. Although initially it was based on the creation of general measures programs, within which certain specific measures were adopted, currently, the permanent existing global climate changes can no longer be ignored by national, European or global organizations and institutions. As such, in time, especially in the last decade, the European Union has been forced, by virtue of the principles governing the relationship between the EU law and that of the Member States, to find solutions to the serious problems caused especially by pollution, but also by a series of other climatic causes. Thus, the environmental policy of the European Union is based on a number of principles, including that of precaution, prevention, diminish of pollution from its source, as well as that of the polluter's liability. In this regard, the present paper aims to summarize the measures taken so far at the level of the European Union, as well as to identify additional protective measures that will also lead to the fulfillment of the European Union Sustainable Development Strategy.
Key-words: environmental policy, sustainable development, environmental causes, action program.
JEL Classification:
K32, K33

Articol 7 - Experience of border guard units of the leading countries in countering terrorism and prospects for its implementation by the state border guard service of Ukraine


The article reveals the results of the study of experience of border guard units of the world's leading countries on combating terrorism and formulation of the prospects of its implementation in the State Border Guard Service of Ukraine (SBGSU). The research was carried out using the methods of legal comparative studies, that is, by comparing the legal support of counter-terrorism units of the state border protection in the leading countries of the world and Ukraine. Based on this, proposals for the improvement of anti-terrorism bodies of the State Border Guard Service of Ukraine have been formulated. Ukraine should use the foreign experience in this sphere, namely: create anti-terrorism legislation, which is accurate, clear, addressing real threats; to recognize all terrorist acts as criminal; define the system of bodies engaged in combating terrorism, including border guard authorities, giving them sufficient competence; assign the bodies of the State Border Guard Service of Ukraine anti-terrorism functions; interact with the border guard agencies of different countries in the context of counter-terrorism activities and exchange of information; apply the latest technical and software developments with investigation and identification of terrorists and means of terror; strengthen anti-terrorist activities during border control.
Key-words: terrorism, countering terrorism, State Border Guard Service of Ukraine, units of the border protection, the state border of Ukraine.
JEL Classification: K14, K19, K33

Articol 8 - The Brexit consequences on the European single market


Brexit represents one of the biggest challenges for the European Union since its establishment. The recent political and institutional developments, the decision of the British Parliament not to accept the exit of the United Kingdom from the European Union without a signed agreement, the decision to negotiate a new deal that must be ratified by both the Member States of the EU and the British Parliament, points towards the fact that neither the Union nor the United Kingdom are effectively prepared for such a decision. The paper presents the recent evolution of Brexit, as well as its possible consequences regarding the internal market. We will present, above all, how the free movement of goods will be affected and how the free movement of persons will be realized, for lucrative purposes. A political analysis of the events will be conducted, as well as an analysis of the applicable normative acts in question. The implications of Brexit on the economy of the Member States and on trade within and outside the European Union will be evaluated, both quantitatively and qualitatively.
Key-words: Brexit, the European Union, Union policies, voluntary withdrawal, Brexit influences.
JEL Classification: K23, K33.

Articol 9 - The statutory prohibition of market manipulation in Zimbabwe


Market manipulation includes, inter alia, a practice that interferes or attempts to interfere with the free and fair operation of the securities and financial markets by creating an artificial, false or misleading appearance of the price of, or market for, the relevant securities, commodities or financial instruments. Consequently, market manipulation is treated as an offence in many countries, including Zimbabwe. For instance, market manipulation is expressly prohibited under the Securities Act 17 of 2004 (Chapter 24: 25) as amended (Securities Act 2004). In light of this and for the purposes of this article, the adequacy of the statutory prohibition on market manipulation in Zimbabwe will be examined. Accordingly, selected key elements, types, examples, penalties and definitional aspects of the market manipulation offence under the Securities Act 2004 are discussed. This is done to unpack and examine the adequacy of the Securities Act 2004 in relation to the combating of market manipulation in the Zimbabwean financial markets. It is hoped that the recommendations enumerated in this article will enable policy makers to develop optimal regulatory measures that promote investor protection and effectively combat market manipulation in the Zimbabwean financial markets.
Key-words: market manipulation, financial markets, offences, penalties.
JEL Classification: K22, K23


Articol 10 - The legitimacy of acquisition of state territory


Nowadays academia offers new approaches to understanding of state borders, territorial disputes, armed conflicts and wars. While the principles of territorial integrity and inviolability of frontiers are central to the current system of international law, they are sometimes inoperative before the law of force. Moreover, the peaceful resolution of territorial disputes contributes to international security. The purpose of this article is to examine the problems of the legitimacy of acquisition of territory in the past and present, as well as to provide insight into some issues related to the state sovereignty over disputed areas in international territorial disputes. The historical, comparative, inductive methods were used while researching the problem of legitimacy of acquisition of state territory. The study may be implicated during taking decisions concerning investments in Crimea, Transnistria or Nagorny Karabakh.
Key-words: International Court of Justice; arbitration; territorial disputes; effectivities; state sovereignty; occupation.
JEL Classification: K33

Articol 11 - Internet fraud and transnational organized crime


The present research paper describes the most traditional ways of today’s mass-marketing financial crimes such as fraud. Digital banking is now used daily for checking account data, making purchases, paying the bills, transfer money, print statements, etc. Online fraud is a crime committed with on-line software to unlawfully allocate money from both bank' and payment systems' account and/or transfer money to another bank account. Banks are not so much targeted in today's world, there's a lot of money in cyberspace, in modern digital systems and data networks. The main task of this article is to determine the most common forms of online financial crimes, such as “Hacking” or electronic transmission unintended for the interceptor, such as passwords, credit card information, or other types of identity theft. The article discusses the features of legal regulation and the activities of the Ukraine to protect citizens form Internet frauds and to avoid Internet scams, phishing and other cybercrimes in Internet. In this article, we review some principles of qualitative data collection, analysis, and strategic planning to help scientists, lawyers, and law students interested in conducting research in their practice to continue their learning in this area.
Key-words: internet frauds, banking frauds, transnational crimes, cybercrimes, phishing.
JEL Classification: K14, K24


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