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Societatea de Științe Juridice și Administrative

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PARTENERI:

CONFERINŢA INTERNAŢIONALĂ
PERSPECTIVE ALE DREPTULUI AFACERILOR ÎN MILENIUL AL TREILEA
www.businesslawconference.ro

CONFERINTA INTERNATIONALĂ “PROVOCĂRI CONTEMPORANE ÎN DREPTUL ADMINISTRATIV DIN PERSPECTIVĂ INTERDISCIPLINARĂ” www.alpaconference.ro

 

Volumul 14, Numarul 1, Martie 2024

Cuprins



Articol 1 - Emergency Regulations Entailing a Special Case of Norm Collision Revisiting the Constitutional Review of Special Legal Order in the Wake of the COVID-19 Pandemic

Rezumat

This contribution will interpret conflict between an emergency order and an ordinary law as a special case of norm collision and will revisit the constitutional review of such cases through this lens. First, the theoretical framework of emergencies will be taken into account, and then, based on the relevant constitutional case law of Austria, Germany, Hungary, Romania and Slovenia delivered during the recent public health emergency, a comparative analysis will investigate the most popular techniques to outline the scope of emergency regulation. Finally, based on this research, a three-step analysis will be proposed for constitutional courts to approach such issues by taking into account either the theoretical, the formal and the substantial aspects of the case. Apart from highlighting the role of constitutional review to establish the objective limits of emergency regulations, we also aim at giving additional weight on the formal and the theoretical prongs of the assessment of extraordinary state interferences, which have been consistently underestimated in our sense.
Key-words: constitutional law; norm collision; hierarchy of law; emergency; constitutional review; Covid-19 pandemic.
JEL Classification: K10, K19



Articol 2 - A Comparative Look at the Duty to Mitigate Loss: the Consequences of the Violation of This Duty

Rezumat

The duty to mitigate loss is a general principle of law that serves to limit the liability of the party that has caused injury to the extent that the injured party has not demonstrated the diligence expected from the latter. However, this duty also serves the purpose of ensuring economic efficiency. While the classic understanding requires that, according to the principle of pacta sunt servanda, the interests of the injured party should be prioritized, today, the contract also refers to the cooperation between the parties. Therefore, reduction in the amount of claimable compensation should not be the sole sanction vis-à-vis the injured party that has violated the duty to mitigate loss. Otherwise, the injured party may escape the consequences of having violated the duty to mitigate loss by resorting to other optional rights. However, in order to ensure economic efficiency, in case the injured party violates the duty to mitigate loss, sanctions should also be foreseeable in terms of other optional rights. This study will evaluate the effect of the violation of the duty to mitigate loss in particular, with regards to request for specific performance and rescission of contract.
Key-words: duty to mitigate loss, reduction of compensation, specific performance, rescission of contract.

JEL Classification: K12, K13



Articol 3 - Legal Dogmatic Questions about the Impact of the European Union’s Digital Legislation on Hungarian Contract Law

Rezumat

The complexity and flexibility of contract law, and its ability to meet various social, economic and technical-technological needs, are indicated by a number of theories (approaches) that offer a new approach to the processing of contracts. Among the predominant theories one might include the following: overview of contracts from a constitutional and human rights approach2; deriving from this the contracts related to private and family life (intimate contracts)3; by connecting the concepts of contract law and property rights, exploring the specific characteristics of existing contracts4; filling the term "digital contract type" with content5; classification of different kinds of interconnection of contracts (complex contracts).6 The author dedicates the study to the topic of whether Hungarian contract law can meet the challenges created by digitalization, which have not yet been identified in all its details, and what are the critical points that require consideration and action as soon as possible. After the summary of the digital legislation of the European Union the author identifies the effects of digitalization in relation to the Hungarian contract law and the special contracts resulting from digitalization. Finally, the author makes de lege lata and de lege ferenda conclusions in light of this topic.
Key-words: EU digital legislation, service contract, complex contract, Hungarian contract law.
JEL Classification: K12



Articol 4 - The Legal Framework for Assisting Displaced Persons from Ukraine in Meeting Their Housing Needs in Poland Introduced by the Act of March 12, 2022 on Assistance to Citizens of Ukraine in Connection with the Armed Conflict in the Territory of That State

Rezumat

The article presents the issue of assistance to displaced persons from Ukraine in meeting their housing needs in Poland, which is provided on the basis of a special act dated March 12, 2022 regarding assistance to citizens of Ukraine in connection with the armed conflict in the territory of that state. The aim of the article is to discuss this specific legal regulation with subsequent assessment of its effectiveness in meeting the housing needs of displaced Ukrainians who settled in Poland due to the armed conflict in their country. Logical-linguistic and comparative legal methods are used herein. The right to housing as part of the human rights system is discussed in the beginning, and then individual solutions for meeting housing needs introduced by the special aid act are reflected on. Finally, the conclusions from the analysis are formulated, on the basis of which it should be concluded that the introduced solutions should be assessed positively. The clearest proof of their effectiveness is the lack of camps for Ukrainian refugees in Poland. The efficiency of the solutions results primarily from the skillful combination of two pillars of assistance, i.e. the public and private sectors.
Key-words: assistance to Ukrainian citizens, displaced persons from Ukraine, human rights, lease, lending for use, right to housing.
JEL Classification: K15, K37, K38



Articol 5 - Ecological Factors in Public Procurement and Corporate Sustainability Policies

Rezumat

European Institutions and scholars are reflecting upon the nature of the requirements that are or can be used to implement sustainability through Public Procurement. As far as public organisations are concerned, the Portuguese government's actions are in the same wavelength as the European guidelines on the matter. Public procurement involves economic operators. Thus, it is important to try to understand if the European Union proposal for a directive on "Corporate Sustainability Due Diligence" is an interesting tool in the discussion. Recently, the Portuguese Council of Ministers issued Resolution no. 132/2023, of 25 October, defining the ecological criteria applicable to certain kinds of contracts and products, goods and services concerning some administrative bodies, a Resolution which, nevertheless, is prone to criticism. May the shift of the European Union Public Procurement paradigm help implement Sustainable Public Procurement through mandatory requirements? Can the future Directive help economic operators align with contracting authorities to implement Sustainable Public Procurement? Might the obligation to include environmental factors help fulfil the Directive's due diligence obligations? And, lastly, has Portugal taken the right step with the issuance of Resolution no. 132/2023?
Key-words: ecological factors; corporate sustainability responsibility; sustainable public procurement; mandatory requirements; voluntary requirements; paradigm shift.
JEL Classification:
K13, K40, K49



Articol 6 - Electronic Administrative Judicial Procedure of Ukraine and the Right to Judicial Protection: Problems of Legal Regulation and Practical Issues

Rezumat

The article deals with certain problems of legal regulation of electronic administrative judicial procedure in the context of the realization of the right to judicial protection. The methodological basis of a scientific article is a set of philosophical, general and special scientific methods. It is indicated that electronic administrative judicial procedure should be attributed to the components of electronic governance. It has been established that the right to appeal to an administrative court and ways to protect violated rights cannot be limited when submitting and considering electronic documents, since the lack of such an opportunity leads to a violation of fundamental human rights, court practice in this matter is given. It has been established that it is the application of a specific method of protecting participants in public law relations of a violated or denied right that is the result of the activity and effectiveness of the legal mechanism for protecting rights when using information and communication technologies in administrative courts. Revealed that these rights protection mechanisms should be applied on the basis of the rule of law, accessibility and transparency, impartiality and independence, including the principles of oral hearing and equality of arms. The analysis of the concepts "electronic justice", "electronic court" in the scientific literature, national and international legal documents is carried out. The essence of "electronic administrative judicial procedure", its elements, stages of implementation in practice are disclosed. Separate directions for improving the legal regulation of electronic administrative judicial procedure regarding the implementation of the right to judicial protection are proposed.
Key-words: judiciary, right to judicial protection, e-justice, e-court, administrative judicial procedure, legal regulation.
JEL Classification:
K14, K24



Articol 7 - New Generation EU Agreements – The Basis for Future World Trade

Rezumat

International trade agreements contribute to the development of international trade and services. The European Union is currently modernizing the system and structure of international agreements related to international trade, investment and services. The aim of the scientific study is to clarify and identify the characteristic features of the agreements of new generation that are concluded between the European Union and non-EU member states. Based on the facts, we can confirm that trade policy supports, among others, values such as the protection of human rights, the protection of labor rights, the environment and the fight against climate change. Such an approach of the European Union to the liberalization of world trade through comprehensive trade agreements is also supported by the strategy of the European Commission „Trade for All”.
Key-words: European Union, common trade policy, international trade agreements, liberalization.
JEL Classification:
F15, F18, K22, K33



Articol 8 - The Challenges of European Union Integration: The Parallel between Human Rights and Corruption Perceptions

Rezumat

With the concepts of rule of law, democracy and respect for human rights representing the most prominent values upon which the European Union is established, the EU accession process expectedly supplicates candidate countries to ameliorate the efficiency of their legal institutions. As a general rule, such fundamentals are habitually correlated with other equally relevant criteria concerning the EU accession process. Given that the Western Balkans are not ordinarily regarded as an exemplary model in terms of practically demonstrating the rule of law and economic well-being, this research paper analyzes the linear relationship between human rights and rule of law manifestations and corruption perspectives in some EU candidate countries as a potential mechanism for satisfying EU accession fundamentals. For that matter, a simple linear regression analysis was conducted in order to determine whether and how such correlation would benefit policymakers in some current EU candidate countries toward their paths to European integration.
Key-words: rule of law; human rights; corruption perceptions; EU accession; EU candidate countries.
JEL Classification: K14, K33

 

Articol 9 - Standards of Disciplinary Conduct for the Corporate Directors: Perspective of the United States of America

Rezumat

Administration of corporate activity is the daily preoccupation of corporate directors. Delegation of decision-making to the director, who is an independent player within the company, can clearly create the risk of conflicting his interests with the interests of the shareholders. This potential conflict of interests is a consequence of the division of ownership of the company and the control powers of the company's commercial activity. The delegation of decision-making authority to the directors of the company may cause the risk of the temptation of the director to the assets of the company. In addition, directors may also be tempted by opportunities for profit that arise during the exercise of their function, instead of using these opportunities for the company. For this reason, it is necessary to foresee clear disciplinary parameters, to avoid and eliminate the conflict of interest, as well as the prohibition of competition. In the present paper, through a legal assessment, special attention has been paid to the main categories of standards: elimination of conflict of interest and prohibition of competition. The main aim of this paper is to analyze the US doctrine, legal provisions, which regulate the two standards of disciplinary conduct for the corporate directors, as well as the court practice in this regard. Also, an important objective of this paper is that it may serve as an important basis for further comparative studies in this field with other jurisdictions. Such analysis is based on the qualitative method, which contains also the research, analytical, descriptive, interpretive methods. The result of this paper will stimulate debate in the academic level and contribute to further improvements of our company legislation, as well to the legal doctrine in Albania that lacks such.
Key-words: director, corporation, disciplinary conduct, standards, USA.
JEL Classification:
F10, F19, K20, K22



 

Articol 10 - Global Patterns of Constitutional Judicial Review Systems: Two Major Models of Constitutional Judicial Review in the World

Rezumat

Judicial constitutional review is an essential component of upholding constitutionalism, even though it is a relatively new concept outside the United States. The US Supreme Court set a precedent in 1803 in the Marbury v. Madison case by declaring legislative acts unconstitutional, which is widely regarded as the beginning of the principle or doctrine of judicial constitutional review. Since then, judicial constitutional review has become a widely accepted feature of most democratic legal systems. Comparative constitutional law recognizes two well-known models of judicial constitutional review: the American model of dispersed or decentralized review by ordinary courts and the constitutional Kelsen/European model of centralized review by a specialized constitutional court. Additionally, there are mixed or hybrid systems that combine elements of both models.
Key-words: normative supremacy of constitution, rule of law, constituent power, democracy, human rights, American model of decentralized judicial constitutional review, European model of centralized judicial constitutional review.
JEL Classification:
K10, K33



 

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