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Editura ASE
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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Volumul 13, Numarul 4, Decembrie 2023

Cuprins



Articol 1 - The enigma of recognition of administrative acts issued by non-recognised regimes

Rezumat

The emergence of several non-recognised regimes on the periphery of Europe implies a myriad of challenges in law. Despite an absence of international recognition for these regimes, they produce their own law and, at the same time, apply and enforce these laws within their territory. With regard to the application of the law, as established by these non-recognised regimes, the question of potential recognition arises. Will a driving licence, issued by the State Palestine, gain any legal effects in those States that haven’t yet recognised Palestine as an independent entity? Is a university diploma, issued by the Abkhaz State University, recognised abroad, even though a recognition of Abkhazia is absent? Can a refugee demonstrate his identity by an official document, issued by the Lugansk or Donetsk Peoples Republics? This paper aims to offer a solution to answer these topical, albeit so far virtually unexplored, questions.
Key-words: recognition of administrative acts; non-recognised entities; de facto regimes; one-voice theory; factual theory; humanitarian reservation.
JEL Classification: K23, K32
DOI: 10.24818/TBJ/2023/13/4.01



Articol 2 - British influence on continental legal tradition in Croatia: Holy Grail or a Wrong Trail?

Rezumat

The Croatian legal system is traditionally under the dominant influence of the Germanic legal tradition. This is a logical consequence of historical circumstances, which state that present-day Croatia was long part of the Austro-Hungarian Empire. In the field of criminal law, which is the focus of this paper, there is a significant influence of Austrian, German, and Swiss criminal law. However, since 2008, new trends have emerged, first evident in procedural law (through the introduction of the previously typical Anglo-American institution of plea bargaining in criminal proceedings), and then from 2013 also in substantive criminal law. In the Criminal Code of 2013, sexual offenses were modeled after the English Sexual Offences Act of 2003, which has sparked considerable controversy in theory and practice. In this text, the author critically examines this legislative shift in tradition from the perspective of comparing the historical circumstances of the English and Croatian criminal law backgrounds. The author discusses the differences in criminal justice systems of these countries, compares the circumstances of the origin and shaping of sexual offenses in the mentioned legislations, and presents the results of their own research conducted in Croatia, reflecting whether the new legal solution was successful and whether it achieved its purpose. Based on this, the author provides an answer to the hypothetical question of whether a solution implemented from one legal tradition can successfully exist in the conditions of another significantly different legal tradition.
Key-words: rape, mistake of facts, guilt, perpetrator, tradition, legality, comparative law, history of law.

JEL Classification: K10, K14, K33
DOI: 10.24818/TBJ/2023/13/4.02



Articol 3 - The effectiveness of the Rome II Regulation in identifying orbital pollution as an environmental damage

Rezumat

Besides the numerous benefits offered by outer space, manned spaceflight has lead to some negative effects manifested by various forms of pollution when introducing terrestrial substances and materials. Considering the Rome II Regulation, Article 7 applies in cases of non-contractual obligations arising out of environmental damage or damage sustained by persons or property as a result of such damage. Giving particular emphasis on space-faring member states of the European Union and the European Space Agency in regards to the damage and/or the event giving rise to it may occur within an extraterrestrial environment, Rome II does not theoretically grasp the notion of orbital pollution due to it not being identified as an “environmental damage” in any legal source. When attempting to identify orbital pollution as an environmental damage by drawing a parallel to Rome II, two elements are analyzed: (a) specific Earth-orbits polluted with orbital debris; and (b) potential damages to persons and spacecrafts resulting from space-faring nations’ failure to mitigate domestic orbital debris; this critical analysis, hence, examines whether Rome II does justice for extraterrestrial environmental damages and further argues that the extraterrestrial environment – along with persons and property within – is just as equally endangered as the terrestrial environment.
Key-words: environmental damage; orbital pollution; Rome II Regulation; space law; international private law.
JEL Classification: K32, K33
DOI: 10.24818/TBJ/2023/13/4.03



Articol 4 - Correlation between classical Roman law and English common law: comparative historical analysis

Rezumat

The term ‘correlation’ can be interpretated in a wider meaning than the presence of a frequency of connection between two collignial indicators. This semantic content as "a relation existing between phenomena" is present in the discourse of liberal arts, in contrast to parametric statistics. The purpose of the study is to verify the existence of a correlation between basic conceptual ideas in Ancient Roman law and English common law and to evaluate the scope and manifestations of this issue. The research problem is complicated by the fact that the overwhelming majority of modern historians traditionally contrast the legal systems of continental European countries with Anglo-American law. And there very few famous scientists who consistently reaffirm the opposite position and consider that the common legal tradition in Europe exists. The article shows three groups of key evidence of Ancient Roman Law influences on the English Common Law. The historical arguments explain the fantastic ability of English law to export to other countries. In world history, this property was only one legal culture, namely Old Roman. These abilities to transfer and reception are defined as the most significant parallels between the legal traditions that are investigated.
Key-words: Ancient Roman law, English common law, legal history, comparative law, reception of law.
JEL Classification: K15, K33
DOI: 10.24818/TBJ/2023/13/4.04



Articol 5 - AI and politics: ensuring or threatening democracy?

Rezumat

Artificial Intelligence constitutes one of the most fundamental pillars for the implantation of the EU Digital Agenda. Its impact both in private and public life is omnipresent. AI has become an inherent part of the political life since politicians use it for several reasons, such as to promote their strategy as well as to achieve better and closer communication with people. All this is based on the existing set of legal rules. However, there are significant issues, both ethical and legal, which pose a wide range of concerns: from the protection of fundamental rights and freedoms to the safeguard of the principle of rule of law. The core question is the following: does AI strengthen democracy or lead to its deterioration? This paper aims at demonstrating the implementation of AI in politics. Firstly, there will be pursued, via a juridical methodology, a description of the regulatory framework governing AI, in connection with justice and democracy. Following a critical approach, there will be an analysis of principal ethical and legal concerns regarding the necessity and/or efficiency of use of AI in political life. Finally, the ultimate goal of the paper is to stimulate critical thinking and suggest fruitful proposals for the safeguard of the democracy and the establishment of a trustful and powerful digital environment.
Key-words: new legal regulation, artificial intelligence, politics, democracy, principle of rule of law.
JEL Classification:
K24, K29, K38
DOI: 10.24818/TBJ/2023/13/4.05



Articol 6 - Illegal contract as a general clause - European trends and new Hungarian judicial practice

Rezumat

The invalidity of a contract is a sanction of civil law. In a dispute, the purpose of the law, its effect and its application must be applied together to the contract in conflict with the law. The means of doing so are judicial interpretation and the application of the general clause. An illegal contract may cover several areas: contracts contrary to public policy, a rule of law, morality or fundamental principles. In such a complex legal environment, an important question is which rule is breached and which results in the invalidity of the contract. The relationship between civil law and other rules is of particular importance in the context of the use of AI, where there are a number of technical obligations for the contracting party or administrative rules governing the use of AI. In the digital environment, many sectoral rules impose prohibitions, many norms define specific requirements as well. The study examines the new paradigm of the Hungarian Civil Code of illegal contracts and focuses the judicial practice of the general clause of illegality.
Key-words: illegal contract, null and void, invalidity, general clause, Hungary.
JEL Classification:
K12
DOI: 10.24818/TBJ/2023/13/4.06



Articol 7 - The legal framework for PPP in China – current issues, challenges and future perspectives – with regard to the French experience

Rezumat

In recent years, the relationship between the private and public sectors has changed in response to the challenges posed by economic globalisation, with the PPP model guiding the two subjects from a relationship of subordination and employment to one of equality and partnership. Such a partnership model is complex but revolutionary in that the government no longer acts as a regulator alone, but also becomes a participant in the market. It is because of the involvement of public power that a well-developed PPP legal framework is particularly important to prevent the abuse of public power and the emergence of inequalities in the market. China has also introduced the PPP model to solve a range of problems arising from accelerated urbanization, to meet the massive demand for public services and infrastructure development, and to deal with the government's financial difficulties. This article analyses the main problems and challenges that China currenty faces in the regulation of PPP, before looking at ways of improving the legal framework for PPP in China, following the example of French law in this area.
Key-words: PPP (public-private partnership), legal framework, legal challenges, Chinese Law, French Law.
JEL Classification:
K23, K33
DOI: 10.24818/TBJ/2023/13/4.07



Articol 8 - Legal and ethical rules of plagiarism

Rezumat

Plagiarism has always been a problem in the university environment as well. There is no legal definition of plagiary, plagiarism or self-plagiarism in the national, supranational (EU) law or international agreements. The definition of plagiarism and self-plagiarism should be clear for academic staff and university students as well. We can conclude that the whole academic society agrees that plagiarism is a serious problem. The paper identifies the legal framework of plagiarism in the Slovak and EU law, the forms of plagiarism behind the legal framework and the problems arising from the use of - artificial intelligence (AI) and proposes solutions for how to fight against plagiarism in the academic environment. The Slovak declaration confirms the fact that existing legal regulations do not reflect the whole gamut of possible instances and circumstances of unscientific, unethical, and dishonest conduct. It seems to be necessary to prepare a directive in the EU law as a repressive measure to define which research conducts is not acceptable, including the AI considered often as a new form of plagiarism. As well as the training courses for teachers and students focused on plagiarism, including the AI and the possibilities for using it in academic research would be a preventive measure for avoiding plagiarism and self-plagiarism.
Key-words: plagiarism, self-plagiarism, author´s work, quotation ethical codes, legal rules.
JEL Classification: K42
DOI: 10.24818/TBJ/2023/13/4.08

 

Articol 9 - Peculiarities of consideration of cases in the ECtHR regarding the protection of constitutional human rights related to the fourth generation of somatic rights

Rezumat

The issue of the emergence, development, and existence of the most relevant, but least doctrinally researched human rights, which constitute the so-called fourth generation of such rights, with the acquisition of their wide social prevalence, requires appropriate theoretical elaboration and legal regulation. Because the fourth group of human rights is quite controversial, the law as a system of norms should give a quick and adequate reaction to such drastic social changes through their normative consolidation, in particular, the transformation of the constitutional and legal status of a person. The practice of the European Court of Human Rights continues to acquire fundamental importance in the context of the study of modern standards of somatic human rights of the fourth generation, which we will dwell on in more detail in this study. The general scientific, group, and special scientific research approaches, methods, and techniques were the methodological basis of scientific research. The purpose of the article is to carry out a legal analysis of the issue of protection of somatic rights through the prism of the judicial practice of the ECtHR.
Key-words: somatic rights, transplantation, euthanasia, reproductive rights, sex change, right to abortion.
JEL Classification:
K10, K38
DOI: 10.24818/TBJ/2023/13/4.09



 

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