"Perspectives of business law" Journal

This volume contains scientific papers presented at the 2nd International Conference "Perspectives of Business Law in the Third Millennium", November 2, 2012, Bucharest University of Economic Studies

Table of Contents

  • Marieta SAFTA

    Abstract:
    The study wants to emphasize that Constitutional Courts belonging to the European model depart from their traditional role as ”negative legislator” – which refers to the effect of their acts consisting in removal from the legal system of those rules contrary to the Basic Law -, becoming, to a certain extent, a ”positive legislator”. Official interpreters of the Constitution, Constitutional Courts assume, sometimes, a role of co-legislators, creating provisions they deduct from the Constitution - when controlling the absence of legislation or legislative omissions -, and revealing the content of constitutional and even infraconstitutional rules accordingly with the Constitution in their case-law, whose effects are nothing but specific forms of „impulse” or „coercion” of the legislator to proceed in a certain sense, and whose continuous development guides the evolution of the entire legal system. Case – law selected presents ways in which the Constitutional Court of Romania is associated to law-making activity. Without minimizing in any way its traditional role as "negative legislator", the study refers mainly to acts and situations that give expression to the creative role of the Constitutional Court of Romania.
    Key words: constitutional review, negative legislator, positive legislator, constitutional loyalty, rule of law, effects of the decisions of the Constitutional Court
    JEL Classification: K10

        DEVELOPMENTS IN THE CONSTITUTIONAL REVIEW.
        CONSTITUTIONAL COURT BETWEEN THE STATUS OF NEGATIVE
        LEGISLATOR AND THE STATUS OF POSITIVE CO-LEGISLATOR
        Page 1

  • Silviu Alexandru LĂZĂRESCU SIMION
    Abstract:
    In the context of Romania's accession to the European Union, have created the conditions to issue a new category of delegation of powers at the national level, used in the management of EU funds. Thus, delegation under delegation agreements concluded between ministries function with role management authorities and legal entities subordinated, coordination or subordination or coordination outside a hierarchy is a concrete way to exercise the powers conferred by the provisions Romania Community and pursue assimilated by delegating temporary administrative office.
    Key words: delegation, agreement, subsidiary, shared management, skills
    JEL Classification: K23
        PRELIMINARY OBSERVATIONS ON THE DELEGATION OF POWERS
        TO NATIONAL AND EUROPEAN UNION LEVEL
        Page 21
  • Anca Lelia LORINCZ, Gina NEGRUŢ
    Abstract:
    The intensification of the European political and economic integration also requires that our country contributes to continuing the tradition of incriminating criminal deeds perpetrated in the business field. Romanian authorities display their constant interest in expanding their knowledge of the crime phenomenon in this field, while looking to identify effective means to control it. Within this context, corruption crimes approached in the Criminal Code of Law and in Law no. 78/2000 take a distinct place within the group of crimes for which prevention and combating is regulated under the Business Criminal Code of Law. In order to ensure celerity in solving criminal cases involving corruption crimes, certain derogations from the usual procedure were required, as well as enforcement of a special procedure; also, specific procedural aspects regarding corruption crimes need to be retained as we look at the coming into force of the new criminal and criminal procedure legislation.
    Key words: business criminal law, corruption deeds, special procedure, law changes, New Criminal Code of Law, New Criminal Procedure Code
    JEL Classification: K14
        PROCEDURAL ASPECTS REGARDING CORRUPTION CRIMES AS
        STIPULATED IN THE CRIMINAL CODE OF LAW AND LAW NO. 78/2000
        Page 25
  • Titus SEREDIUC
    Abstract:
    The evolution of the economy as a whole on the general and particular, can take place only under a judicious administration of heritage assets in service and / or maintaining various public or private entities (in many cases in - connection of the two forms of property) as a positive policy which recognizes that power. Economic management act positively is beneficial and can be seen as such by the results obtained in - a certain period of time, but can be damaging, if not done professionally and responsibly may result in the latter case production which may take forms of criminal damage. On this issue this material detailing theoretical and practical aspects that may occur and which are required to be given appropriate solutions.
    Key words: dynamic balance, coordinated financial, input streams
    JEL Classification: K14
        MANAGEMENT APPROACHES IN TERMS ECONOMICS AS BOTH
        FRAUDULENT AND THE ECONOMIC THEORY OF VISION CRIMINAL LAW
        Page 39
  • Alina SULICU
    Abstract:
    The United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereinafter – The Rotterdam Rules or Convention) signed on 23 September 2009 is taking a novel approach to international trade. It might be the reason why it has not received positive acknowledgement from the signatories, law experts and other interested parties. However, one might wonder whether the trade itself stayed novel-free during the past several decades. It should not come as a surprise that it has not. Tackle-to tackle approach is no longer applicable to a majority of contracts concluded that provide for delivery to the consignee's doorstep, as of 1970 container ships and container terminals dominate cargo handling in ports and onboard the ship, electronic communication and documentation is becoming a common feature in the current trade. Even if there are more developments to be named, the aforementioned three make the regime under the Hague,Hague-Visby and Hamburg Rules appear outdated. So is the unfamiliar approach as envisioned by the Rotterdam Rules really such a big failure?
    Key words: multimodal transport, the Rotterdam Rules, shipping industry, Hamburg Rules
    JEL Classification: K23
        ASPECTS OF MULTIMODAL TRANSPORT IN THE ROTTERDAM RULES
        Page 45
  • Gheorghe IVAN, Mari-Claudia IVAN

    Abstract:
    Sustainable development imperatively requires the existence of a market economy based on fair competition, honest behavior regulations and observance of the law as well as prevention and fight against the offence of bankruptcy. Bankruptcy is an offence pertaining to the business environment. Bankruptcy (insolvency) means the cessation of payments together with financial irregularities to the prejudice of the creditors. As such, the general or group legal scope of the offence of bankruptcy is represented by the business relations. Nevertheless, according to the new Romanian Criminal Code passed by Law no. 286/2009, bankruptcy was included among the offences against patrimony, the subgroup of dishonesty offences, without consideration of our legal tradition or foreign legislations on the part of the legislator.
    Key words: bankruptcy, sustainable development, criminal illegality, business environment.
    JEL Classification: K14
        BANKRUPTCY AND THE BUSINESS ENVIRONMENT ACCORDING TO
        THE NEW ROMANIAN CRIMINAL CODE
        Page 50
  • Daniela CIOCHINĂ
    Abstract:
    Nowadays one of the strategic resources in the development of society is the information which is supported by modern information technologies. The impact of implementing information technologies in various fields of human activity is so strong that is brings into question a new phase in the society evolution – information society. One of the largest industries worldwide is the industry of information technology and it is an upward growing one. Because of the advantages that information technology brings for a social and economical growth, all the economically developed countries and all the ones still developing, have adopted informatisation on a general level as also in certain special areas. In our country on public administration services have been adopted by the Government Decision no. 1007/20012 approving Government strategy on informatisation of public administration, and many regulation, making this reference: Law no. 455/20013 regarding e-signature; Law no. 52/20034 regarding transparency of decisions from public administration; Law no. 291/20025 for approval of Government Decision no. 24/20026 regarding electronic means of collecting fees and local taxes; Law no. 161/20037 regarding some measures to ensure the transparency for exercising public roles in public positions and in the business environment, prevention and punishment of corruption.
    Key words: e-administration, implementation, principles of informatisation, informatisation of public administration, portal or e-administration services, portal for on-line administrative applications, consequences.
    JEL Classification: K23
        INFORMATISATION OF PUBLIC SERVICES – STRATEGIC RESOURCE
        IN THE DEVELOPMENT OF SOCIETY
        Page 55
  • Cătălin VASILE
    Abstract:
    Public servants have to fulfill their tasks with a conviction arising from his rational understanding. They are responsible both for damages caused by institutions, for wrongful acts, so-called anonymous, and for all personal offenses, and their liability is provided by different norms. The common thing for all categories of public servants is that we can talk about disciplinary liability only after a preliminary investigation.
    Key words:public servant, misconduct, disciplinary liability, disciplinary sanction, Legal Statute of Public Servants.
    JEL Classification: K23
        DISCIPLINARY RESEARCH FOR CERTAIN CATEGORIES
        OF CIVIL SERVANTS
        Page 58
  • Barbu VLAD
    Abstract:
    European public official is any person who has been appointed in legal conditions in a permanent position in one of the institutions of the Community by an act of the authority vested with the power of appointment. The activity of European public servant is dominated by the idea of fidelity, executing with professionalism and impartiality his powers and his duties. There are disciplinary proceedings to punish mistakes and everywhere exists the sanction of dismissal from office, as the most severe sanction that can be taken against a public servant, except the penalty of withdrawal of pension rights.
    Key words: European public servant, disciplinary liability, duties, preliminary investigation, misconducts, sanction
    JEL Classification: K23
        DISCIPLINARY LIABILITY OF EUROPEAN OFFICIALS
        Page 70
  • Andreea Corina TÂRŞIA
    Abstract:
    The absence of the clearly identification criteria of the public service or public interest service, conjugated with the ambiguity of the notions of public clerk, public position, profession and liberal profession can give rise to certain prejudicial situations for the individuals, especially because the Criminal Code extended sic et simpliciter the quality of public clerk to all the public positions at to the public service and based on these notions, it established the definition for the offence of conflict of interests, thus creating the potential to make out of any professional a public clerk and equally a subject of the illustrated offence.
    Key words: public position, public clerk, profession, conflict of interests
    JEL Classification: K23
        RELEVANCE OF THE POSITION AND/OR PROFESSION FOR
        THE CONFLICT OF INTERESTS
        Page 80
  • Silvia Lucia CRISTEA
    Abstract:
    This study starts from an analysis of the juridical regime of the mortgage which "migrates" from the area of actual rights to the juridical regime of the debt rights! Legislative arguments sustain this idea, deriving from the regulations governing the mortgage in the new Romanian Civil Code (section 2), from the comparisons with other similar juridical institutions (section 3) and from practice (section 4). The conclusions explain the usefulness of the changing of the juridical regime of actual guarantees in international trade as well.
    Key words: mortgage, new Civil Code, pledge, the patrimony of affectation, the fiduciary operation, the fidejussion
    JEL Classification: K12
        MORTGAGE REGULATIONS IN THE NEW ROMANIAN CIVIL CODE.
        PRACTICAL ASPECTS
        Page 96
  • George CHIOCARU
    Abstract:
    Starting with the enactment of the New Civil Code have been regulated for the first time contracts and legal institutions specific to the banking activity. The new regulation even if they brought important solutions for certain problems regarded in the commercial activity and especially in the banking sector, have also raised new questions regarding especially their domain of applicability, their imperative or dispositive character or the possibility for the parties to conclude contract other than those expressly regulated. By taking into consideration the special character of the operations involving the administration of money as well as the sensitivity from a legal and especially social perspective of the ownership relation regarding money, we have focused in our analysis on the relations resulting from the contracts regulated by the chapter "the bank account and other banking contracts".
    Key words: deposit, ownership right over money, credit, credit institution.
    JEL Classification: K12
        THE REGULATION OF THE BANKING CONTRACTS IN
        THE NEW CIVIL CODE
        Page 104
  • Georgeta-Bianca SPÎRCHEZ
    Abstract:
    Given the usefulness and practical importance of the compromise contract conclusion and of the amicably dispute resolution, within the business world, we aim to analyze, in what follows, the concrete means by which these kind of settlement are achieved. Two questions become legitimate in the context of concerns about mutual concessions which the parties make in a compromise contract. These questions are the following: "What are the mutual concessions? Do mutual concessions mean equivalent concessions?" and "How mutual concessions are required to complete a valid settlement? Is the requirement of mutual concessions grounded?"
    Key words: compromise (contract), mutual concessions, waiving the right, waiving the claim
    JEL Classification: K12
        MUTUAL CONCESSIONS - SPECIFIC ELEMENT OF THE
        COMPROMISE/TRANSACTION CONTRACT
        Page 115
  • Radu Ştefan PĂTRU
    Abstract:
    Law 40/2011 brought significant changes to the work relations by the reorientation of certain labour law institutions on the one hand, and by the introduction of legal institutions that have never existed in the Romanian law system until the introduction of this law. Among the significant developments introduced by Law 40/2011, the employees' individual performance objectives will be hereby analysed in terms of the legal regime and of the issues occurring with their applicability for employees.
    Key words: Law 40/2011, employees' individual performance objectives, legislative developments, balance between employer and employee rights.
    JEL Classification: K31
        MATTERS ON THE LEGAL REGIME OF EMPLOYEES' INDIVIDUAL
        PERFORMANCE OBJECTIVES
        Page 119
  • Cristina COJOCARU
    Abstract:
    TAgency contracts are created as legal instruments with a highly important role for the business activity, given that they are the basis for professional intermediation. Regulations have changed in time, in an attempt to offer a better apprehension of the notion and applicability of this type of contract through the legislative framework. In Romanian law, this type of contract was regulated for the first time by Law no. 509 in 2002 on permanent commercial agents, law that was repealed when the new Civil Code came into force on October 1, 2011.
    Key words: agency contract, agent, right of representation, exclusivity
    JEL Classification: K12
        AGENCY CONTRACTS – EXISTING REGULATIONS IN ROMANIAN LAWS
        Page 124
  • Alexandra Gabriela ROLEA
    Abstract:
    Nullity is the civil legal sanction which determines the ineffectiveness of the juridical act, by depriving it of those effects that do not comply with the legal provisions enacted for its lawful conclusion. The sanction is applicable to both civil legal acts, among which the company contract, and legal entities, including trading companies, however, with different grounds and effects. In time, the legal doctrine has created a special category of commercial law nullities, with distinct features from those of common law nullities. In the new Civil code, the causes and effects of the company's nullity have been taken in toto from the trading legislation and applied to all legal entities, irrespective of their legal status, which in turn has led to fierce controversies. The Article begins with a general overview of the causes and effects of the civil legal act's nullity, including that of the company contract. The second part tackles the isssue of trading companies' nullity, as well as that of all legal entities, according to both national and European legislation. The final part of the paper is dedicated to some proposals for the amendment and harmonization of the common law with the specific legislation on trading companies.
    Key words: nullity, civil legal act, trading company, constitutive act
    JEL Classification: K12
        SOME THEORETICAL AND PRACTICAL ASPECTS CONCERNING
        THE NULLITY OF TRADING COMPANIES
        Page 130
  • Alina ROTARU
    Abstract:
    The need to introduce some special clauses in a separate main contract appeared from the need of employers to ensure the favourable conditions and prospects of carrying out economic activities with some rivals on a competitive market, where staff fluctuations are frequent and the economic agents appear and disappear with a relatively high frequency. In the following article we want to answer some questions related to the validity of non-competition clause, the causes leading to the invalidity of the non-competition clause, in what situation it is necessary or not to insert such a clause, stretching in time and in space of the non-competition clause.
    Key words: non-competition clause, competitive market, validity of clause, abusive practices, relative invalidity, absolute invalidity.
    JEL Classification: K31
        INVALIDITY OF NON-COMPETITION CLAUSE IN EMPLOYMENT LAW
        Page 142
  • Raluca DIMITRIU
    Abstract:
    The paper deals with identifying the impacts of the different methods of reorganization of the hiring unit on the employment contracts. It takes into account the methods of reorganization regulated in the new Civil Code, as well as the judicial reorganization or the transfer of the undertaking, in an attempt of organizing these important circumstances in the life of the enterprise, considering their impacts on the working relations. Taking into account the variety of the meanings and circumstances in which the term reorganization is used, there is carried out a classification of the reorganization situations, whereas the criterion is the impact of these circumstances on the employment contracts. It presents the hypotheses in which dismissal for reasons which are independent from the employees can be decided, in a restricted way, the cases in which such redundancies can be decided in an unrestricted way, as well as the cases in which the reorganization cannot be at all accompanied by measures of making employees redundant.
    Key words: employment contracts, reorganization, employees, redundancy
    JEL Classification: K31
        REORGANIZATION OF THE EMPLOYER. IMPACTS ON
        THE EMPLOYMENT CONTRACTS
        Page 149
  • Andreea STOICAN
    Abstract:
    Law no. 230 of July 6th, 2007 on the set up, organization and operation of the owners' associations, as well as its enforcement guidelines of December 19th, 2007 for the implementation of Law no. 230/2007, although they seem quite broadly regulated, they are not clear enough, not even to this moment of implementation, regarding some issues emerging in practice, generating ambiguities in the application of their provisions especially regarding the assessment of the manner of remuneration of the persons carrying out activities in those associations. Or, even more since the entering into effect of the new Civil Code in October 2011, there is the issue of finding and understanding which the best solutions are for the owners' associations regarding the remuneration received by their members, as well as the consequences of concluding a certain type of agreement over another.
    Key words: owners' association, chairman, executive committee, mandate agreement, remuneration.
    JEL Classification: K12
        POINTS OF VIEW ON THE POSSIBILITY OF CONCLUDING A
        MANDATE AGREEMENT FOR THE PERFORMANCE OF THE
        ACTIVITIES OF THE OWNERS' ASSOCIATIONS AND ITS EFFECTS
        Page 159
  • Eugenia FLORESCU
    Abstract:
    A large part of the wealth is invested in securities, which circulate through documents or specific scriptural records that are located in the memory of the computer. These magnetic or paper-made "supports", received different names, in law and in doctrine: debt securities, securities, negotiable instruments or commercial securities, equity securities, bearer bonds, financial instruments, transferable securities, stocks, bonds, bill, promissory note, check, et al. These expressions used by the New Code of Civil Law were assumed tale quale from the specialized language of commercial law, without any concern for explaining the foundation and judicial meaning of these legal institutions, and eliminate the ambiguity in this matter. Under such conditions, the analysis is to identify the criteria under which the judicial genre will separate from the judicial species in relation to the law and jurisprudence of the European Union and/or to the regulations specially adopted at national level, over time.
    Key words: debt securities, securities representative of goods, transferable securities, financial market, money market, stock exchange market of transferable securities.
    JEL Classification: K22
        DEBT SECURITIES, SECURITIES IN THE NEW CODE OF CIVIL LAW –
        THE NEED OF JUDICIAL DISAMBIGUATION
        Page 167
  • Ştefania-Alina DUMITRACHE
    Abstract:
    In designing the study we started with the analysis of good faith in employment law, from Article 54 of the Romanian Constitution and reaching to Article 8 of the Labour Code. Regarding the bad faith of the employee, it exceeds the scope of abuse of law and must be addressed in relation to the three main stages of any individual labour contract. Thus, when negotiations for a labour contract, bad faith of an employee can occur by breaching of private information disclosed by the employer and by violating the correlative obligation to employer's right to correct information. In disciplinary matters, the form of guilt of the employee who commits a disciplinary offense and his failure to appear at prior disciplinary investigation to which he was called are important for the analyzed issues. Not even termination of an individual labour contract is protected from the event of adopting a malicious behaviour by the employees. The study concludes with launching the opinion that a way to prevent and control this type of behaviour could be the employee's personnel file.
    Key words: good faith, bad faith, abuse of rights, labour, employer, employee
    JEL Classification: K31
        BAD FAITH OF EMPLOYEES IN ACTUAL LABOUR LAW-
        THEORETICAL AND PRACTICAL IMPLICATIONS
        Page 184
  • Ana-Maria MĂCĂRESCU
    Abstract:
    The penalty clause is that ancillary agreement in which the parties predetermines the equivalent loss suffered by the creditor as a result of the failure, delay or improper performance of the obligation by the debtor. Over time, the legal nature of penalty clause has been a controversial subject. The provisions of the new Civil Code establishes a mixed theory of the legal nature of the penalty clause aiming at fulfilling its main function, namely the private penalty function and the repair function, plus the comminatory and warranty.
    Key words: agreement, obligation, penalty clause, damage
    JEL Classification: K12
        NEW ASPECTS ABOUT THE PENALTY CLAUSE IN CURRENT LEGISLATION
        Page 193
  • Valeria GHEORGHIU
    Abstract:
    Negative consequences of undeclared work are reflected in the economy by distorting competition. Thus, employers who do not use declared work have fewer financial obligations and therefore are competing unfairly with those employers who use all kinds of resources and making real efforts to comply with legal obligations incumbent on them.
    Key words: undeclared work, the economy, competition, employer, employee, outsourcing
    JEL Classification: K31
        WAYS TO REDUCE UNDECLARED WORK
        Page 202
  • Mihaela CATANĂ
    Abstract:
    One of the four fundamental freedoms guaranteed by the Treaty establishing the European Community is the free movement of persons, whose Foundation lies in the Elimination of discrimination between citizens of the Member State in whose territory they reside and operate and citizens of other countries who are working in the territory of the same State. Mobility of labor in terms of the concept of free movement of workers, the term worker referring both to persons carrying on an activity in the wage and the notion of the worker, as these concepts have been determined by the Court of Justice or by the Council (through the provisions of Regulation 1612/68), became his new in the context of Romania's integration in the European Union. Although the movement of workers is free, legal regime of these is different from one Member State to another, which leads to inequities that the Community rules have failed to cover.
    Key words: European Union, free movement of labor, equality of treatment, non-discrimination, worker.
    JEL Classification: K31
        LABOR MOBILITY – EUROPEAN UNION AND NATIONAL RULES
        Page 209
  • Bujorel FLOREA
    Abstract:
    The relatively recently legal notion of imprevision brought under Romanian regulation by the new Civil code that came into force October 1st, 2011, is expected to be subject of numerous specialized analyses in order to clarify the various aspects that make up its identity, characteristics and effectiveness. Following the purpose described here-above, our study aims especially at conjugating the theory of imprevision with the copyright transfer agreement. The article hereafter contains standpoints and de lege ferenda suggestions in relation to the party entitled to institute the legal proceeding relative based upon the imprevision theory, the criteria to be observed in order to adopt a solid legal settlement in this respect, the contracting parties and the court's role in interpreting and applying the imprevision theory.
    Key words: imprevision, special imprevision, copyright transfer agreement, rebus sic stantibus principle, bona fide, failure to execute liabilities.
    JEL Classification: K12
        ON IMPREVISION AND ITS EFFECT ON THE LITERARY, ARTISTIC
        OR SCIENTIFIC WORK COPYRIGHT ASSIGNMENT AGREEMENT
        Page 220
  • Bazil OGLINDĂ
    Abstract:
    This paper addresses one of the most pressing issues of private law, namely, the theory of unpredictability. The theory of imprevision is a question of law under the effects of the current economic crisis has resulted in contract law. Also, updating legal issues raised by the theory of unpredictability occurs in the context of regulation for the first time at its principle in art. 1271 NCC. This paper deals with the concept, scope, conditions applying theory in the context of imprevision in terms of law doctrine and the relevant case law. It also presents elements of comparative law.
    Key words:theory of imprevision, economic crisis, NCC (New Civil Code), the conditions for invocation, practical issues, comparative law.
    JEL Classification: K12
        THE THEORY OF IMPREVISION IN THE CONTEXT OF THE ECONOMIC
        CRISIS AND THE NEW ROMANIAN CIVIL CODE (NCC)
        Page 230
  • Stela MIHĂILESCU
    Abstract:
    By means of the present study, we try to offer a thorough image and an analysis concerning the assignment mode of social parts within a company having limited liability. The assignment of social parts is free and unrestricted except for the cases provided by article 202, paragraph 2 from Law no. 31/ 1990- the law of commercial companies with further modifications and completions and the ones provided in OUG no. 54/ 2010 concerning some measures for fighting fiscal evasion. By means of the assignment operation a transmission is made up by an assignment of social parts contract towards one or more already associated persons in the company or towards other individual or legal persons who are going to obtain the associate quality. The principle governing any assignment is the one of goods circulation freedom, a freedom restricted only by the public order and imperative judicial norms.
    Key words: assignment, social parts, commercial society, assignor, assignee.
    JEL Classification: K12
        GENERAL ISSUES CONCERNING THE ASSIGNMENT OF SOCIAL PARTS
        Page 256
  • Tudor Vlad RĂDULESCU
    Abstract:
    The Romanian Civil Code of 2009 introduces a new legal construct in the Romanian legal system, i.e. the option agreement, mainly taken from French law. This paper aims at highlighting the differences between the option agreement and other legal constructs which constitute acts preceding the conclusion of a contract and have already been discussed in the Romanian literature. Thus, we intend to offer a comparative view with reference to the offer to contract, as well as the unilateral and bilateral promises, highlighting the similarities and, especially, the differences between such constructs. Finally, we wish to draw attention to some confusions to be avoided with the introduction of the option agreement in the New Romanian Civil Code, as well as to some omissions or regrettable errors that the legislator of 2009 has failed to notice in the text of the code.
    Key words: New Romanian Civil Code, option agreement, promise, offer to contract.
    JEL Classification: K12
        THE OPTION AGREEMENT IN THE NEW ROMANIAN CIVIL CODE
        Page 260
  • Laura CETEAN-VOICULESCU
    Abstract:
    Adoption is one of the most important measures to protect children in need, namely that category of children who are deprived of parental care, loss due to various reasons. If a child in need can not be maintained or reinstated in his natural family, state authorities must have an alternative measure of protection: guardianship, special protective measures provided by Law no. 272/2004 on the protection and promotion of children's rights (placement, emergency placement or specialized supervision) or adoption, regulated by Law no. 273/2004. This paper aims to critically analyze the Adoption of the new rules, with special regard to the definition, principles and conditions for the adoption procedure.
    Key words: adoption procedure, individualized plan of protection, substantive conditions for adoption, celerity, child's best interests, the principle of continuity.
    JEL Classification: K36
        SOME REMARKS ON THE NEW AMENDMENTS IN THE ADOPTION
        PROCEDURE REGARDING THE ADOPTION DEFINING TERMS
        AND SUBSTANTIVE CONDITIONS
        Page 268
  • Olimpia-Monica MATIAŞ
    Abstract:
    The economic and financial reasons determined by the current crisis have imposed to the Romanian legislator that, in the flexible regulatory context concerning the labour reports, has to intervene to reduce the loss. The legal framework available to the employer in this situation refers to the provisions of the art. 52, 1st paragraph, letter c, art.52, 3rd paragraph, art.53 and 122, 3rd paragraph, all from Law no.40/20111, for Law no.53/2003 modification and amendment concerning the Labour code. Under conditions of economic crisis, it is natural that employers have the necessary means to efficiently organize their activity, meanwhile keeping its staff on these periods. This does not mean that, during the suspension period the employees can not resign, no need to terminate the suspension provided for in Article 52 line 3 of the Labour Code in order to intervene in the individual labor contract termination. From the employer's perspective there is no ban imposed to him by art. 60 of the Labour Code in relation to this type of suspension, so that the latter may proceed to dismiss the employee during the unilateral suspension of his labor contract arranged under Article 52 line 3 of the Labour Code.
    Key words: suspension, activity interruption and/or the temporary activity reduction, crisis, employer, to reduce the loss
    JEL Classification: K31
        INDIVIDUAL EMPLOYMENT CONTRACT SUSPENSION IN
        CASE OF ACTIVITY INTERRUPTION AND / OR THE
        TEMPORARY ACTIVITY REDUCTION
        Page 273
  • Mirela Georgiana SABĂU
    Abstract:
    This essay analyzes the institution of "censors", as company body of internal control, aiming to determine whether this institution corresponds or not to a real need of some companies or it is just maintained in the virtue of the tradition of Romanian law system regulations regarding the internal control. Analyzing the evolution of company control and the institution of censors and especially the large attributions, rights and obligations the censors have, that are more extended than those of the auditors I came to the conclusion that the censors by their permanent and general activity corresponds to real needs of some companies. Therefore I consider that there are real grounds for which the institution of censors, part of the traditional system of internal control provided in the course of time by the Romanian law system, continues to exist. In the final part after analyzing the existing legal provision I suggested some amendments of the law such as : to request expertise of the persons nominated as censors in order to avoid a formal and inefficient control, to extend the secret vote for censors election as provided for companies by shares to all companies, to eliminate the obligation of the limited company by shares having more than 15 shareholders to nominate censors if such company enter into contract with auditors, as well as some suggestions regarding the correlation of the terminology.
    Key words: company law, control of company management, censors, auditors, internal control of companies
    JEL Classification: K20
        CONSIDERATIONS ON THE ROMANIAN REGULATIONS OF "CENSORS",
        AN INSTITUTION BETWEEN TRADITION AND ACTUALITY
        Page 280
  • Ana-Maria LUPULESCU
    Abstract:
    The new Civil Code introduces several important changes and clarifications regarding the ownership right in general, and the private ownership right, in particular, so that it becomes necessary, for both the analyst in law and the practitioner, to make a comparison between the old regulation contained in the Civil Code of 1864 and the current regulation provided by the new Civil Code. At least in theory, the new legal framework in this area shows greater consistency and legal precision, although it is not entirely safe from any criticism.
    Key words: private ownership right, restoration of property, juridical limits, legal limits, conventional limits, judicial limits
    JEL Classification: K11
        ASPECTS CONCERNING THE PRIVATE OWNERSHIP RIGHT WITHIN
        THE CONTEXT OF THE NEW CIVIL CODE
        Page 290
  • Marius EZER, Oana Florentina EZER
    Abstract:
    Moral harassment at the workplace has become in the last period a very often met phenomenon that severely affects the work relations and represents a significant health and safety danger. This problem has become in the last period an important issue for the European Union which has initiated a series of studie for analyzing the consequences of this pehenomenon on the normal process of the work relations, that has lead, in its turn to an awareness of this new dimenion of harassment between the employees at the internal level.
    Key words: harassment, working relations, mobbing, liability
    JEL Classification: K31
        WORKPLACE HARASSMENT. MOBBING PHENOMENON
        Page 298
  • Ana VIDAT
    Abstract:
    Adapting a gainful occupation to technological or economical development may require the amendment of individual labor contract under which the activity is performed, taking into account the intrinsic dynamics of employment. If the parties, by agreement, determine the content of the individual labor contract, all in agreement, may agree at any time to amend it according to art. 41 para. 1 of the Labour Code. And trough the provisions of civil law – common law for the employment law – are established legal the review of the effects of the legal actdue because of the breakage contractual balance due to change in the circumstances envisaged by the parties in the moment of conclusion of the legal act (the so-called theory of unpredictability, rebus sic stantibus) – exception to the principle "pacta sunt servanda". Recourse to the legal document review because its effects are other than the parties agreed to establish and be binding in the moment of conclusion of that agreement. In the present paper we will refer to administrative contracts, given the subject of this paper – namely that the common law for individual employment contract is the civil law rules applicable to civil contracts. So in this paper does not refer to former commercial contracts, since the new Civil Code was achieved unification of private law matter – giving up the commercial contracts.
    Key words: the individual employment contract; the collective employment contract; the unpredictability; the modification of the individual/collective contract; the major force.
    JEL Classification: K31
        THE MODIFICATION OF THE INDIVIDUAL EMPLOYMENT
        CONTRACT ASSUMING UNPREDICTABILITY
        Page 305
  • Remus BACIU, Adriana DEAC
    Abstract:
    The Mihail Kogălniceanu Programme for small and mediu-sized enterprises is a multi-annual programme meant to boost the creation and development of small and medium – sized enterprises, consisting in a credit line, amounting up to RON 125.000 for one SME yearly, with an interest partially subsidised and, possibly, guaranteed by the state. In order to make it easier for SMEs to have access to credits, the Programme regulates a number of facilities for partial subsidization of the interests and, as the case may be, for guaranteeing the credits granted to the SMEs by the credit institutions, as well as a number of specific obligations, namely eligibility criteria that the SMEs should meet in order to benefit from these facilities.
    Key words: Mihail Kogălniceanu Programme, SMEs, government programme, interest subsidization, government guarantees, credit supply
    JEL Classification: K20
        LEGAL ASPECTS CONCERNING THE MIHAIL KOGĂLNICEANU
        PROGRAMME FOR SMALL AND MEDIUM SIZED ENTERPRISES
        Page 310
  • Brândușa VARTOLOMEI
    Abstract:
    Law no. 105/2012, without comprehensive claims, establishes special rules applicable to national experts on secondment to the European Union institutions and bodies. Based on regulations adopted in the field of EU officials and national experts on secondment normative act adopted domestically presents some new issues, innovative and, although different from those in the law, meet European requirements applicable in this matter.
    Key words: national experts, employer, detachment applicable EU rules.
    JEL Classification: K23, K31
        ASPECTS OF LEGAL REGIME APPLICABLE TO THE SECONDMENT
        NATIONAL EXPERTS TO THE EU INSTITUTIONS AND BODIES
        REGULATED BY THE LAW NO. 105/2012
        Page 315
  • Ioana Maria COSTEA
    Abstract:
    The present study aims to create a panorama of doctrinal, legal and jurisprudential solutions, which determine the heterogeneity of labour market's fiscal hypotheses'. The study identifies a progressive series of interactions between economic and social factors, which generate at the juridical level a specific series of fiscal solutions, both traditional and innovating for the qualification and taxation of labour revenues. Heterogeneity of working forms is presently a complex, main direction in business with effects both at economic and legal level. This study provides an overview of statutory and case-law solutions for the legal classification and therefore tax classification of personal income.
    Key words: labour market actors, entrepreneurial activity, employee, dependent activity, independent activity
    JEL Classification: K31
        LABOUR TAXATION: FORMAL AND INFORMAL SOLUTIONS
        Page 320
  • Mioara-Ketty GUIU
    Abstract:
    From a comparative law perspective, the present paper is a synthetic presentation of the issues raised by the criminalization of the money laundering offence.
    Key words: money laundering, concealment, real favouritism.
    JEL Classification: K14
        APROACHES REGARDING MONEY LAUNDERING
        Page 332
  • Bădescu Valentin – Stelian
    Abstract:
    Business law is the crossroads of different orientations of legal thought, economic and political. Related to business law from the perspective of the new Civil Code should be noted that adoption of the new Civil Code of the unified system of regulation of private law doctrine revived the old controversy on commercial material name. It was argued that a consequence of monistic conception of the Civil Code will be abandoning the classical conception of commercial law and we will be a Business Law or a professional contract law, which will add more institutions of commercial law matters traditionally transformed into distinct. We must recognize that name as the business is commercial and modernization suggests, naming commercial law, which is obsolete2
    Key words: Romanian Civil Code, private law, business law, commercial law, transdisciplinary research, professional merchants
    JEL Classification: K20
        BUSINESS LAW UNDER THE NEW CIVIL CODE
        Page 338
  • Lavinia M. TEC
    Abstract:
    The notion of shareholder stirs theoretical and practical concern. The traditional qualification criteria – the contribution, affectio societatis, participation to profit and loss, the power of intervention in the social life – prove to be useless when facing particular situations. The usufruct of shares and the state of contribution in kind involving common goods of the spouses confuses the notion of shareholder. The conclusion is that we are witness to this notion's fall, which can be brought to a stop by means of legal or contractual mechanisms.
    Key words: shareholder, company, contribution, usufruct, spouse
    JEL Classification: K20
        THE NOTION OF SHAREHOLDER – A CONTROVERSIAL NOTION
        Page 352
  • Rezarta TAHIRAJ, Aida Gaçe LLOZANA
    Abstract:
    In the 21 years, since the beginning of the systemic reforms supported by the international community, Albania, one of the post–socialist countries, has adopted a new legal framework in the field of the commercial law typical for the market economy, laws that are relatively modern which generally reflect modern European traditions and norms as well as compliance with WTO requirements. In fact, the Albanian legal order shows the lack of the Commercial Code the existence of which is more a preference than a need. Many civil law traditions do indeed set out their commercial laws in a separate Commercial Code, although many of the underlying concepts supporting commercial transactions are set forth in the Civil Code, as result to be in the case of Albanian commercial law. Furthermore, the most of the laws in the field of commercial law have been adopted in the shadow of WTO and that of the European Union and if applied would generally harmonize. Recognizing this, support for harmonization and compliance at the legislative level it is offered in way to eliminate the problematic issues emerged by the set of laws approved during the years 1991-1993. In this context, the proposed paper aims to analyse the issue of the impact of the constitutional and supranational limitations to the reformation of the Albanian Commercial Law, an analysis that also is envisaged in the context of the historical evolution of commercial law which it is outlined with the establishment and the improvement of the State and Albanian legal order.
    Key words: company, merchant, Albanian commercial law, European Law, approximation, harmonization
    JEL Classification: K10, K20
        THE IMPACT OF THE CONSTITUTIONAL AND SUPRANATIONAL LIMITATIONS
        TO THE REFORMATION OF THE ALBANIAN COMMERCIAL LAW
        Page 366