"Perspectives of business law" Journal

This volume contains scientific papers presented at the 4th International Conference "Perspectives of Business Law in the Third Millennium", November 28-29, 2014, Bucharest University of Economic Studies

Table of Contents

  • Mihaela AGHENIŢEI

    Abstract:
    Nowadays, universal jurisdiction is the favorite technique used to prevent impunity for international crimes and it is one of the most effective methods to deter and prevent international crimes by increasing the like hood of prosecution and punishment of its propagators. In regard to the defendants’ rights, the European Union states consider applicable all the rights that are necessary to assure that the trial is equitable and expeditious. There is no exception to the right to a fair trial. So, a defendant who is being prosecuted on the basis of the universality principle can rely on all the procedural rights provided for the Convention on Human Rights and the domestic code of criminal procedure without any restrictions. In Germany, the Federal Constitutional Court, in a case concerning genocide committed abroad, declared expressly that no special criminal proceedings must be provided for specific crimes.
    Key words: “universal jurisdiction”, “human rights”, “European Union”, “criminal procedure”
    JEL Classification: K14, K33

    THE ORGANIZATION OF JURISDICTION IN EUROPEAN UNION PERSPECTIVE
        Page 1

  • Diana Anca ARTENE
    Abstract:
    As a result of the integration within the European Union, in the economical and social life of Romania, new judicial entities have been developed. The cluster is amongst the most recent advent in the judicial spectre.
    The cluster represents a group of people both individuals and legal persons which is considered to act on the basis of an association contract conceptualized under the existent agreements of the organizations found within the spectrum of science and accredited innovation and/or accredited higher education institutions ,as well as, other non-commercial institutions. At the same time, economic agents, local public administrative authorities, employers` or professionals associations, non-judicial individuals, financial institutions, international organizations, local and foreign investors are relevant for the emergence of the scientific and educational research activities, as well as for the technological transfer of the scientific and innovative results and their valorisation through economical activities. 2
    Therefore, it can be argued that the cluster has appeared as a result of the necessity to create a proper environment that would reunite the business partners in order to develop common resources and competences. These are based on similar marketing strategies, the participation to similar projects and initiatives, the opportunity to create a brand, etc. An additional circumstance that has determined the development of this entity in its more recent form, is represented by the possibility of ensuring (at least in a pageant manner) the independence for every partner on the basis of the dualism between competition- cooperation.
    The cluster can be organized as an entity with or without judicial personality.
    The definition of the cluster makes us reflect upon the ways in which it can be constituted: legal person with lucrative purpose, legal person without lucrative purpose, association without legal personality (simple association of participative association).
    Key words: legal person with lucrative purpose, legal person without lucrative purpose, association without legal personality, simple association of participative association, entity.
    JEL Classification: K12, K33
    THE CLUSTER- AN ENTITY WITH OR WITHOUT JUDICIAL PERSONALITY
        Page 5
  • Gina ORGA-DUMITRIU
    Abstract:
    The original formula established by the EU legislator for the repression of unfair terms (by the use of the criteria for the establishment of the abusive character – the lack of negotiation of the clause, the significant unbalance between the rights and obligations of the parties and the infringement, by the professional, of the good faith requirement) was consolidated by the developments made at case law level through the exercise, by the Court in Luxembourg, of its interpretative function. The study starts with a diachronic view of the solutions that highlighted the manifest tendency of CJEU to provide the effective protection of consumers by the admission of the judicial control performed ex officio over the unfair terms in Océano Grupo, Mostaza Claro and Cofidis, such judgments being also reconfirmed on occasion of the ulterior interventions from Pannon GSM, Asturcom Telecomunicaciones and Pénzügyi Lízing or, with particular reference to the consumer credit contracts, in Banco Español de Crédito and, lately, in Aziz (I). Afterwards, following a general description of the casuistic background of the disputes between credit consumers and banks in Romania (II), the analysis of the juridical meanings of the interpretations related to the recent Kásler case law from the 30th of April 2014, respectively Sánchez Morcillo and Abril García case laws from the 17th of July 2014 may not be extended also by the realistic assessment of the effects thereof in our national law and of the (potential) implications that are relevant for the Romanian courts of law (III).
    Key words: reference for a preliminary ruling, unfair terms, protection of consumers, consumer contracts, consumer credit contracts, terms relating to the exchange rate
    JEL Classification: K12, K33
    ABOUT THE RECENT INTERPRETATION OF CJEU IN THE MATTER OF UNFAIR TERMS OF CONSUMER CREDIT CONTRACTS
    RELEVANT MEANINGS FOR THE NATIONAL CASE LAW

        Page 12
  • Aurelia STĂNESCU
    Abstract:
    Deep social and economic changes, as well as changes in communication technologies that have taken place over the last decades have resulted into radical alterations in the design of organizational forms.
    Starting from the assumption that the employee has the duty to fulfil professionally all the responsibilities in the job description; equally appropriate can be to tackle particular aspects of Human Resources managerial practice, such as the fact that positions (and their corresponding job descriptions) can be subject to controversies as there is always un “unwritten” part which makes the difference between the employer’s expectations and the employee’s expectation. From the point of view of the employer and organization, the position is the main tool to allocate tasks (duties) and roles to employees. The possibility of the employer’s abuses emerges, by including, in job descriptions, among other “responsibilities and taks”, the cliché: the holder of this position shall fulfill all tasks given by his/her hierarchical boss.
    The job description explains what and how tasks / responsibilities shall be fulfilled, and each of the main responsibilities included is associated to one or several tasks. We are hereby emphasizing the employee’s duty to fulfill the task listed in the job description but we see as justified the fear that overload may become an additional stress source with inevitable consequences.
    A well structured and detailed job description is a proof of rigourous and organized management. The fact that some organizations’ job descriptions do not define clearly the responsibilities and standards required from the holder of that position may become a problem.
    Key words: responsibility, liability, employee, authority, organization
    JEL Classification: K31
    THE EMPLOYEE’S RESPONSIBILITY AND LIABILITY IN ROMANIAN ORGANIZATIONS. MANAGERIAL AND LEGAL APPROACH
        Page 26
  • Nely MILITARU; Ileana VOICA
    Abstract:
    Commission was established by the Treaty establishing the Economic Community of Coal and Osel – signed in Paris in 1951, entered into force next year –as the High Authority supranational institution with discretionary decision-making powers in optics of this treaty. Also known as “guardian of the treaties” Commission by its member, who exercise their functions in complete independence, is an institution that promotes the general interest of the Union (art. 17 par.TEU). Commission oversees therefore application of Union law. In this capacity, especially in terms of the competence of the legislative proposal, the Commission by calling upon specialists and experts from EU Member States harmonize with the national interest.
    Key words: Commission , High Authority, legislative proposal, harmonization
    JEL Classification: K33
    PROMOTER COMMISSION LEGISLATIVE AND EXTERNAL REPRESENTATIVE OF THE UNION
        Page 35
  • Alexandru BULEARCĂ

    Abstract:
    Given that each Member State of the European Union had its own regulation in the matter of payments, the European Commission considered it necessary to adopt an uniform legislation in this regard.
    Consequently was adopted Directive 2007/64/EC of the European Parliament and of the Council which regulated payment services in the EU and the EEA (European Economic Area).
    In virtue of the obligation to transpose into the national law the provisions of this Directive, with effect from November 1, 2009 Romania adopted the Emergency Ordinance no. 113/2009 which regulated its own legislation on the provisions of Directive 2007/64/EC.
    Given the experience gained so far, considering the technological opportunities in the matter of payments and the change in habits of payment of the EU citizens and not only, in conjunction with the development of electronic commerce and increasing facilities offered by the payment service providers in the field of payments via mobile terminals, it has been concluded that provisions of Directive 2007/64/EC are largely overcome by the technological evolution.
    Wishing to maintain the regulations in the matter of payment services at the current technological level to guarantee the security of payment operations at the same time with the adaptation of the market of EU payments to the opportunities offered by the single market and simultaneously with supporting the EU economy growth, the European Commission has adopted a package of measures which include both a new directive relating to services of payment as well as a proposal for a regulation on inter-bank fees for card payments.
    The purpose of the regulation is the transparency of bank information on payment services; creating a single legal framework at the EU and EEA level in the matter of payment services and the protection of payment service consumers.
    The new regulation applies not only to payment transactions in the EU or EEA but also to payments made or received to/from outside through a payment service provider acting within the EU or EEA.
    The objective of the study was a comparative analysis of current legislation of Directive 2007/64/EC, transposed into national law by Ordinance No. 113/2009 with subsequent amendments, with the provisions of the draft directive adopted by the 24.07.2013, who, on the date of entry into force will repeal Directive 2007/64/EC.
    The research method used was a study comparing the current regulations and terms of the draft directive, using the rules for the interpretation of specific international trade law science and those common to all branches of law.
    Key words: payment services; payment transactions; payment institutions; framework contract
    JEL Classification: K33
    BRIEF CONSIDERATIONS ON THE NEW EUROPEAN REGULATION IN TERMS OF PAYMENT SERVICES
        Page 39
  • Bogdan BUNECI
    Abstract:
    One of the greatest tests of the quality of our justice systems is how well we treat our victims - appropriate treatment is a demonstration of our societies' solidarity with each individual victim and recognition that such treatment is essential to the moral integrity of society.
    It is therefore crucial not only to combat and prevent crime, but also to properly support and protect individuals who do fall victim to crime.
    Both legislative and practical measures have been put in place to provide an adequate level for the protection of victim's rights throughout the EU, and in accordance with international provisions.
    Key words: "victim”, “European level”, “International recognition”, “Human Rights”.
    JEL Classification: K14, K33
    THE NOTION OF VICTIM IN INTERNATIONAL AND EUROPEAN JUDICIAL PROCEEDINGSS
        Page 48
  • Dan-Adrian CĂRĂMIDARIU
    Abstract:
    The paper studies from a legal and economical perspective the European Banking Union, the latest set of measures adopted by the European Union in order to assure the stability of Europe’s financial and banking system and to prevent future crises. At the same time, the paper analyzes the influence this new institutional and legal mechanism could have on the Romanian financial and banking system, if our country is to take part in the European Banking Union. The paper will discuss the four European legal texts, namely the EU Regulation No 575/2013 and the three directives concerning the capital requirements for the banking system, the recovery and resolution of credit institutions and the deposit guarantee schemes, which, together, set up the European Banking Union’s legal frame. Further, the paper will study the implementation and the transposition of these European provisions into national law. The study’s conclusions will take into consideration the advantages and disadvantages connected to Romania’s participation to the European Banking Union, by showing that, in the context of the introduction of the single currency, the participation to the Banking Union is a necessary exercise.
    Key words: European Banking Union, European Union, Romanian financial and banking system, Eurozone crisis
    JEL Classification: K33
    THE EUROPEAN BANKING UNION AND ROMANIA. THE IMPACT OF THE NEW EUROPEANLEGAL FRAME ON THE ROMANIAN FINANCIAL AND BANKING SYSTEM
        Page 53
  • George CHIOCARU
    Abstract:
    The purpose of this article is to analyse the problem of concluding a transaction agreement (Romanian language ”contract de tranzacție”) in relation with the unfair clauses which may occur in the contracts concluded between professionals and consumers. In this respect our purpose is to analyse, within this article, the current level of the doctrine in what concerns the transaction agreement, as this was regulated by the New Civil Code, as well as the possibility to conclude such contracts in relation with a contractual clause or a number of contractual clauses considered unfair. We will concentrate especially on the possibility to conclude a transaction agreement prior the identification of the clause subject to a possible dispute, which forms the object of the transaction agreement. The purpose of this analysis is to present an alternative method to safeguard the contract between the professional and consumer by the contracting parties themselves, contractual parties who better understand and represent the ways forward for the situations when unfair contractual terms occurs.
    Key words: transaction, unfair clauses, contract safeguarding, void
    JEL Classification:K12
    OUT OF THE COURT SETTLEMENT IN RELATION WITH THE CHALLENGING IN COURT OF THE UNFAIR CONTRACTUAL TERMS
        Pages 69
  • Silvia Cristea
    Abstract:
    This article deals with the legal status of pledge, in view of the new romanian civil code. Besides regulation, definition and subject collateral (section 1,2 and 3), the focus of the analysis is on the institution dispossession of assets, which marks the time difference between pledge and mortgage (section 4).Original in the doctrinal approach is the analysis of pledge in different systems of law (French law and Canadian law, in section 5). If the purpose of the legislature was that the Roman civil pledge without dispossession come under the regulation of mortgage securities and dispossession remain at the borders of the Civil Code, we believe that achievement is threatened by the expansion of civilian collateral objectof pledge to the marketable securities, especially over the nominative one (forms synthesized in the conclusions of the article).
    Key words: pledge, dispossession, civil code, mortgage
    JEL Classification:K11, K12
    DISPOSSESSION OF ASSETS IN THE NEW ROMANIAN CIVIL CODE. COMPARATIVE LAW
        Page 73
  • Ştefania-Alina DUMITRACHE
    Abstract:
    According to article 253 and 254 of Labor Code, both employers and employees are responsible under the rules and principles of contractual liability for damages to the other party of legal labor relationship and we emphasize that this is not purely civil liability, but a variety of it, determined by the specific peculiarities of legal labor relations. Thus, we highlight that labor law provisions which refer to liability for damages complement, unquestionably, with the common law relating to civil liability. The paper analyzes the objective basis of legal accountability, namely the illicit act causing damages committed in fulfilling labor duties or in connection tot hem, therewith the method detailed and comparative documentation of legislation in the field and relevant doctrine.
    Key words: legal liability, legal labor relationship, illicit act, damage, duties, exemption from liability.
    JEL Classification: K31
    ILLEGAL ACTS - CONDITION OF LIABILITY FOR DAMAGES CAUSED IN EXERCISING LEGAL LABOR RELATIONS*
        Page 81
  • Raul Sorin FÂNTÂNĂ
    Abstract:
    The paper presents the development of the subject of an intellectual property technical expertise report conducted at the request of a criminal investigation body in relation to software piracy. The technique of making a technical expertise report imposes strict compliance with the required objectives. As a result, the author of the report, who also authored this paper, considers appropriate to extensively study the subject highlighting (i) the endogenous conditions underlying the offense, ii) the exogenous factors that facilitated the perpetration and iii) the resulting material and moral damages. The paper, original and relevant, emphasizes the thoroughness and professionalism needed by the intellectual property technical expert, which often exceeds the specialization of a single faculty on the one hand, and the beauty of this border specialization that combines engineering, economics, law and social sciences, on the other hand.
    Key words: intellectual-industrial property, copyright, software piracy, competition, unfair competition, illegal behaviour.
    JEL Classification: K14, K23
    CAUSES AND IMPLICATIONS OF PIRACY IN THE SOFTWARE. CASE STUDY
        Page 90
  • Mona-Lisa NEAGU
    Abstract:
    Through this research, I intended to point out the particular characteristics of prisoners, by trying to define a more comprehensive image of the prisoner's personality, as well as understanding these phenomena by developing a socio-psychological profile of the individuals through theoretical information.
    The need for an extensive work must approach with priority this type of issues, with such extremely complex, but in the same time controversial consequences, based on a series of questions that appear in the literature, seeking urgent for answers.
    To achieve this objective, I used a methodology based on documentary research in order to explain a set of concepts and specific terms for this subject, which become an area of interest for specialists who investigate the causes, motivation and personality of prisoners.
    Thus, my purpose was to identify, emphasize certain personality characteristics present with prisoners through answers, information provided by them, but also by other subjects included in this research.

    Key words: detention, psychological consequences, criminal law, detention system, social reintegration, imprisonment shock.
    JEL Classification:K14
    THE SOCIO-PSYCHOLOGICAL CONSEQUENCES OF FREEDOM DEPRIVATION
        Page 105
  • Emilian CIONGARU
    Abstract:
    Throughout the history of law, has been structured logically in law institutions and branches being considered in a divided or unitary manner. But legal norms have obtained general recognition either taken as a unitary system or divided into divisions or branches as maximum logical-organizational structures. The law originally intersects with the process of formation and evolution of the state. The law has been formed unconsciously as the result of a psychological process in which the individual reacts to certain external stimuli. At the beginning, the law came under the form of non-unitary chaotic customs or practices. In the second phase, the law, though yet rudimentary, became a conscious action being imposed by a public force. The difference between the public law and the private law results from the fact that private law may be attributed to the structure of society, and the public law may be attributed to the superstructure of society. Even nowadays, the delimitation between the public law and the private law is not clear, because the most numerous legal relations refer both to the general interest and the private interest and, basically, the legal norms contribute to public order as the observation thereof brings social peace.
    Key words: law, public law, private law, legal norms
    JEL Classification:K10, K40
    VARIOUS HISTORICAL CONSIDERATIONS REGARDING THE PUBLIC LAW–PRIVATE LAW DICHOTOMY
        Page 111
  • Adriana DEAC
    Abstract:
    One of the competencies that the EU Treaties confer to the European Commission is the control and supervision of the application of primary and secondary law and the enforcement of this legislation so it is observed by private persons, Member States and EU institutions2. Further to an official communiqué in October 2014, the European Commission has announced that it sued Romania at the European Union Court of Justice concerning the failure to observe EU legislation on the treatment of extractive industry waste. Namely, it refers to the Moldova Noua case, in which toxic waste from the zinc and copper mines were discharged into the Bosneag pond. This paper means to present the regulations in the field of extractive industry, the competence of the European Commission regarding the enforcement of EU legislation and the ability to sue a Member State at the EU Court of Justice, when the entity exploiting the zinc and copper deposits is not the Romanian state, but a private law legal person.
    Key words: European Commission, Moldova Noua case, control and supervision competencies, the European Union Court of Justice, Bosneag pond.
    JEL Classification:K23, K33
    THE EUROPEAN COMMISSION – THE EXERCISE OF THE POWERS OF CONTROL AND MONITORING OF THE ENFORCEMENT OF THE LEGISLATION OF THE EUROPEAN UNION IN THE MOLDOVA NOUA CASE
        Page 116
  • Bujorel FLOREA
    Abstract:
    The current article focuses on the specific elements of the repurchase agreement, as they are regulated in the new Civil Code (Law no. 287/2009). In the beginning the author makes a general characterization of this type of contract, from the perspective of the specific elements regarding the contracting parties, the object of the contract and the moment of fulfilling certain obligations assumed by the parties. Then, the study defines the notions of “repo” and “reverse repo” and differentiates the repurchase agreement (repo) from other similar contracts, configuring thus more clearly the analyzed convention. A specific element of the contract is represented by its legal nature of sui-generis contract, which the author explains by the fact that in the doctrine there is no unanimous opinion concerning this aspect. At the same time, the specificity of the repo is highlighted by presenting its main effects: the double transfer of property, the transmission of the accessory rights, the original buyer’s obligation to exercise his option, and the original seller’s obligations to make available for the original buyer the funds necessary for exercising the right of option and for making the payment. Last but not least, the specificity of this type of contract is revealed through reflecting the differences between the liquidation, prorogation and renewal of the debated convention. The study presents the viewpoints expressed in the literature, as well as the author’s opinions as regards the controversial legal problems in the studied field.
    Key words: repurchase agreement (repo); reverse repo; the original seller; the original buyer; immediate payment; settled sum; financial instruments and/or securities; obligation to exercise the option; liquidation, prorogation and renewal of the repo.
    JEL Classification: K12
    CONSIDERATIONS REGARDING THE SPECIFIC ELEMENTS OF THE REPURCHASE AGREEMENT (REPO)
        Page 120
  • Ovidiu-Horia MAICAN
    Abstract:
    The granting of state aids (grants) is one of the most powerful economic policy instruments available to public authorities. Through these grants are protected certain economic activities. Although state aids are based on social motivations, they are actions that can have harmful effects on competition. State aids granted by the Member States through the use of public funds (funds), prolonging or threatening to distort competition.
    Key words: competition, state aid, community law, treaties, commons market
    JEL Classification:K23, K33
    THE LEGAL REGIME OF STATE AIDS. A HISTORICAL EVOLUTION     Page 130
  • Alice CÎRSTEA
    Abstract:
    We live in an environment in which e-commerce continues to grow and evolve while state legislators attempt to catch up to the ever-changing technology. Today electronic transactions are more and more frequently supplementing or even entirely replacing traditional channels and business models. Even though, in theory, is easy to apply laws to Internet, in practice is harder. This article synthesizes a number of issues on the application of Romanian legislation on e-commerce and offers practical solutions both to managers and to authorities. The article use quantitative and qualitative methods in order to identify the information provided by catering web sites to their consumers in Romania, compared to United Kingdom. The research results raise question marks about how is written and applied Internet law in Romania and also about the limitations of Romanian electronic commerce legislation. Also it shows how companies fail to comply with applicable legislation and to attract their consumers. Managerial implications related to these findings are provided and future studies are encouraged to be investigated.
    Key words: electronic commerce law, consumer right, catering website, European Directive
    JEL Classification:K22, K23
    IMPLICATIONS OF ELECTRONIC COMMERCE LAW IN ROMANIA
        Page 139
  • Mihaela- Alexandra GRAMA
    Abstract:
    In a country with low purchasing power and a large number of taxes, a taxpayer wishing to start a business must know and apply the law that fits. Understanding taxation area helps investors, especially those who are at the beginning, to measure and maximize potential gains, taking advantage of the solutions that the state provides. Given the regulations in force I will present the conditions under which a taxpayer can be registered as a PFA. To better understand the concept of an authorized person we must first start from the notion of a professional. This paper aims to analyze the authorized person, based on a parallel between the notion of "trader" and "professional", continuing with the conditions to set up a PFA, the affectation heritage and the contributions due from it. In short, I will be analyzing a PFA from both legal and tax perspective.
    Key words: professional, commercial Law, natural person authorized, professional patrimony.
    JEL Classification:K22, K23
    CONSIDERATIONS JURIDIQUES ET FISCALES RELATIVES A LA PERSONNE AUTORISEE
        Page 147
  • Cătălina-Adriana IVĂNUŞ
    Abstract:
    The right to non-discrimination is very important for a civilized society. EU legislation establishes direct and indirect discrimination, harassment, sexual harassment, instruction to discriminate and any less favourable treatment of a woman related to pregnancy or maternity leave as forms of discrimination. The law and the Court of Justice permit the justification of indirect discrimination.
    Key words: equality, indirect discrimination, legitimate aim, appropriate measure, necessary measure
    JEL Classification:K31, K33. K42
    JUSTIFICATION FOR INDIRECT DISCRIMINATION IN EU
        Page 153
  • Adelina VRÂNCIANU
    Abstract:
    The modification of a contract is an area presenting a real interest for the practitioners in the field. More and more, the contractors tend to resolve their implementation problems through addendums which, most often, don’t respect the publicity conditions imposed by the national and European legislation. OUG nr. 34 and HG nr. 925 don’t have provisions regarding contract modifications, the principles being imposed by the European case-law. In present, the single act with a chapter on contract modification is Ordin nr. 543/2013. The real conflict is knowing when a modification can be qualified as substantial or not and which are the elements to be takeni into consideration during the evaluation process. The new Directive 2014/24/CE regarding public procurement goes beyond the case-law and poses new principles.
    Key words:public contracts, public procurement, contracting authorities, administrative law
    JEL Classification:K23, K33
    THE MODIFICATION OF A PUBLIC PROCUREMENT CONTRACT UNDER THE NEW EUROPEAN DIRECTIVES ON PUBLIC PROCUREMENT
        Page 161
  • Cristina COJOCARU
    Abstract:
    The management of a company, as the expression of its social will, is performed by acts of individual persons or bodies entrusted with the management of the company. The activity and the formation of these bodies are regulated by Law no. 31/1990 on business entities with regard to each form of company.
    Precisely due to the importance of the role that these individuals, named directors, have in the operation of companies, the law lays down certain rules that define their status, i.e. their appointment, duration of mandate, the legal nature of their duties, their obligations and how their function ceases.
    Moreover, a company may have one or several directors. The law stipulates the rules according to which a company with several directors is managed, as well as how the decisions are made.
    Key words: company, director, representation, liability
    JEL Classification:K22, K23
    SOME CONSIDERATIONS ON THE RIGHT OF REPRESENTATION AND LIABILITY OF THE COMPANY’S DIRECTORS
        Page 164
  • Adriana Elena BELU
    Abstract:
    The sender has the right, by subsequent written disposition, to withdraw the property that was to be transported, before its departure, to stop it during transportation, to postpone its handing to the recipient or to order its return to the place of departure, to change the recipient person or place of destination or to dispose other modification to the transportation conditions.
    The sender who gave a subsequent disposal is required to pay to the carrier, as appropriate, the price for the part of transportation already performed, the due fees and expenses caused by executing the subsequent disposal, and to compensate him for any suffered loss.
    The sender cannot give a subsequent disposal leading to the splitting of the transport, unless otherwise provided by law.

    Key words: the sender, subsequent written disposition, property that was to be transported
    JEL Classification:K12, K33
    RIGHT OF SUBSEQUENT DISPOSAL IN CARGO TRANSPORTATION AGREEMENT
        Page 169
  • Claudiu IGNAT
    Abstract:
    Besides convention and inheritance, usucapio was, is and will certainly remain the most important and most common way to acquire property of buildings and the importance of this institution was established, confirmed and reinforced by attempts at which the usucapio institution was subject to by doctrine and jurisprudence equally. Usucapio or acquisitive prescription is a way of acquiring property and other real rights, characterized by the possession of a thing for a period fixed by law. It was provided by art.645 of the Old Civil Code as one of the original ways of acquisition and in art.1847 of the same code it is provided that acquisitive prescription has the same character.
    Key words: usucapio, acquisitive prescription, most important and most common way to acquire property of buildings, the possession of a thing.
    JEL Classification:K11
    MATERIAL LAW USUCAPIO CONDITIONS, AS A MEANS OF ACQUIRING PROPERTY RIGHTS IN THE NEW CIVIL CODE
        Page 176
  • Bazil OGLINDĂ
    Abstract:
    Within the context of identifying a modern trend for increasing the flexibility of contract law, trend which is also internalized by the Romanian legal system through the adoption of the Civil Code from 2009, we intend to analyse the implications as regards the modification of contracts. Specifically, we intend to answer to the following question:
    May a clause which requires modification in a certain form only (conventional formalism) be annihilated by the parties’ conduct throughout the performance of the contract (namely, a conduct whereby they ignore such clause)?
    In order to answer to this question, we consider that it is useful to present the mechanism pursuant to which foreign legal systems or the great European projects for the unification of contract law2 settled this issue, following that, at the end, we analyse the viability of importing such mechanisms into the Romanian contract law and the legal ground pursuant to which these mechanisms may operate in the context of the new Romanian Civil Code.

    Key words: modification in a certain form only, the parties’ conduct throughout the performance of the contract, estoppel, new Romanian Civil Code.
    JEL Classification:K12, K33
    MODIFICATION OF CLAUSES ON THE BASIS OF THE CONTRACTUAL CONDUCT OF THE PARTIES. APPLICATION OF ESTOPPEL DOCTRINE
        Page 184
  • Radu Ştefan PĂTRU
    Abstract:
    Law 40/2011 significantly changes certain important institutions of Labour Law, among which is listed the probation period. The establishment of probation periods longer than the ones recorded in the past and the renouncement to certain protective measures for the employees, such as, for example, the probation period of at most five days for unqualified workers, is the most controversial news in this field. These matters also occur in the framework of prior inconsistencies and, as a result, a new series of propositions for lege ferenda in this field is needed. Without pretending to be exhaustive in relation to the matters related to this important institution of the labour law, this study is aimed at analysing certain legal matters related to the current applicability of the probation period, providing solutions for a fair regulation of this matter, both for the employer, and the employee.
    Key words: Law 40/2011, individual labour law, probation period, lege ferenda propositions
    JEL Classification:K31
    CERTAIN MATTERS RELATED TO THE LEGAL REGIME OF THE PROBATION PERIOD. DE LEGE FERENDA PROPOSALS
        Page 193
  • Mihaela ION
    Abstract:
    Since any analysis of an complex institution as merger, and respectively of cross-border merger implies, first of all, a conceptual delimitation, the present paper intends, starting from various definitions and classifications provided by legal provisions and doctrine, to outline a complete definition, specific for mergers and cross-border mergers that will include all their characteristic elements and will also capture their complex character. Taking into account that the definition of the merger and, respectively, cross-border merger depends on the legal view through which a conceptual delimitation is sought, the program does not stop only at the delimitation of cross-border merger from the view of general applicable regulations, but also tries to delimitate this concept by reference to other special regulations. In this respect, this paper makes a delimitation between the merger regulated by the New Civil Code, the merger regulated by Law no. 31/1990 under its both forms (i.e. domestic merger and cross-border merger) and Law no. 21/1996.
    Key words: reorganisation, merger, cross-border merger, economic concentration
    JEL Classification:K22, K33
    NATIONAL AND CROSS-BORDER MERGERS. CONCEPTUAL DEMARCATIONS
        Page 198
  • Brînduşa VARTOLOMEI
    Abstract:
    Fundamental legal feature of the labor contract is the subordination of the employee to the employer. This is evidenced, during the execution of the labor contract of the employer rights granted much higher in comparison with those of the employee. Economic dependency is the objective support legal subordination of the employee to the employer.
    Key words: employee, employer, individual employment contract, labor law
    JEL Classification:K12, K31
    THE SUBORDINATION OF THE EMPLOYEE TO THE EMPLOYER – THE FUNDAMENTAL LEGAL CHARACTERISTIC OF THE INDIVIDUAL EMPLOYMENT CONTRACT AND ITS CONSEQUENCES ON LABOR LAW
        Page 209
  • Iulia Bădoi
    Abstract:
    The collective labor conflicts’ settlement represented and it still represents a subject of interest for the Romanian legislation and within the specialty literature. The Social Dialogue Law no. 62/2011 was criticized by being adopted without an impact study.
    The current paper’s objective is to shortly present some legislative aspects concerning the parties of the collective labor conflict and to analyze the statistic data provided by the Ministry of Labor, Family, Social Protection and Elderly Persons, and by the National Institute for Statistics concerning the participation to the collective labor conflicts.
    Through the research instruments (the use of statistic data series) and taking into consideration the period subjected to analysis, the paper allows to describe the situation of the participation to the collective labor conflicts in Romania within the period 1992-2014 and of the factors that influence these conflicts, and also to formulate de proposals for the future amendment of the legislation..

    Key words: the parties of the collective labor conflict, statistic data, the collective labor conflicts frequency, the representation of the collective labor conflicts
    JEL Classification:K31
    THE PARTICIPATION TO THE COLLECTIVE LABOR CONFLICTS
        Page 216
  • Claudia ANDRIŢOI, Florentina LUPȘA
    Abstract:
    Between the right to defence and assistance and the civil rights a close connection has been identified. Sometimes the realisation and protection of these rights, such as the right to life, to personal dignity, to private life etc., in general are impossible without the right to defence and legal assistance. First, the right to legal assistance allows the individual to comprehend the powers conferred to him by this right. Second, the right to legal assistance allows the protection and enforcement of these personal rights.
    The subjects of both rights are all the persons who have the right to information about the status of their own rights and liberties and the problems impeding their achievement. The importance of informing citizens and states in all spheres, and in particular about the implementation scope of the right to legal assistance consists in the population’s comprehensive legal information.

    Key words: right to defence, right to legal assistance, subjects, legal regulation
    JEL Classification:K41
    CONNECTIONS AND INTERFERENCES BETWEEN THE RIGHT TO DEFENCE AND THE RIGHT TO LEGAL ASSISTANCE
        Page 227
  • Ana-Maria LUPULESCU
    Abstract:
    The new Civil Code contains the general regulation applicable to all companies, which is, however, to be completed with the special legal provisions relating to different categories of companies, which have remained outside the Civil Code. Thus, the Romanian legislator does not include within the new Civil Code the legal regulation applicable to companies with legal personality, without taking into account the example of other modern European legal systems of monist approach, such as the Italian system of law.
    Therefore, taking into account that even the legislator qualifies the provisions of the Civil Code which governs the company as the common law in this field, while maintaining the special legal regulation in relation to certain categories of companies, an analysis of the legal provisions on cooperative companies, emphasizing their particularities, as well as the necessary correlations between the general and special regulation, appears as extremely useful both theoretically and practically.

    Key words: cooperative companies, specific aspects, juridical nature, juridical regime
    JEL Classification:K22, K23
    PARTICULARITIES CONCERNING THE COOPERATIVE COMPANIES
        Page 232
  • Amalina AHMAD TAJUDIN
    Abstract:
    Flexible contracting has been a practice since the period of the law merchant. It remains relevant in today’s sale. The objective of this paper is to test Macneil’s idea of contractual flexibility under the CISG, the US Uniform Commercial Code and the English Sale of Goods Act 1979 with regard to open price provisions respectively. The method used in this paper is by deriving Macneil’s opinion that a contract ought to be viewed as a planning mechanism rather than as a static document. Scholarly views of the three jurisdictions are also taken into consideration. With regards to the international law of the CISG, Macneil would have agreed with the arguments posed by Honnold that both Articles 14 and 55 of the CISG are to be read separately and in regard to the nature of a specific trade. Nevertheless, the CISG courts have shown preference over Farnsworth’s approach, whereby a price requirement is a must in spite of the trade type. The result of this paper finds that Macneil’s viewpoint is an alternative solution to the diverging interpretations taken. Taking Macneil’s view implicates friendlier international business relations, when a contract of sale is updatable as a planning mechanism.
    Key words: Macneil, presentiation, flexibility, open price, CISG
    JEL Classification:K12, K22
    EXPLORING THE IDEA OF PROFESSOR MACNEIL: PRESENTIATION OR FLEXIBILITY?
        Page 239
  • Andreea-Teodora STĂNESCU
    Abstract:
    Initially, the concept of unfair terms characterized only the contracts concluded between consumers and professionals. Currently, the concept is also incident in other types of contracts. This study only concerns the concept of unfair terms applicable to contracts concluded between consumers and professionals.
    Main regulations applicable are represented by Law no. 193/2000 on unfair terms in contracts concluded between professionals and consumers and Directive 93/13 / EEC on unfair terms in consumer contracts (interpreted by the ECJ).
    Scientific work is proposed to set up the concept of unfair terms. In order to do so, several steps are to be followed:
    1. determining the scope (contracts on the sale of goods or services concluded between professionals and consumers)
    2. analysis of unfair terms defining features: (a) the absence of negotiation between the contracting parties, (b) the presence of a significant imbalance between the rights and obligations of the parties, to the detriment of consumers and (c) the breach of good faith
    3. the identification of the incident sanctions
    4. the highlighting of some procedural features (especially in terms of the effects of court decisions finding the unfairness of a contractual term).

    Key words: unfair terms, undertakings, consumers, significant imbalance, good faith
    JEL Classification:K12, K22
    THE CONCEPT OF ABUSIVE CLAUSES/UNFAIR TERMS IN CONTRACTS CONCLUDED BETWEEN THE UNDERTAKINGS, ON THE ONE HAND, AND THE CONSUMERS, ON THE OTHER HAND
        Page 251
  • Anca Lelia LORINCZ
    Abstract:
    According to the regulation from the Criminal Procedure Code for the criminal liability of the juridical person and in the Criminal Procedure Code there exist some provisions concerning the procedure to hold liable a juridical person. Representing a different way to develop the criminal process than the usual procedure, made of a complex of standards with a complementary and derogatory character, the procedure to hold liable a juridical person represents a special procedure. The present study aims an analysis of this procedure. Besides the systematization from the Criminal Procedure Code from the 1968, in which special procedures made the object of the last title of the Special Part (Title IV) in the structure of the actual Criminal Procedure Code the regulation of special procedures precedes the provisions regarding the execution of decision, provisions that are contained in the final title of the Special Part. It is true that the enforcement of decisions represent the last step of the criminal process, but, taking into account the fact that in special procedures as well one can contain some derogatory standards regarding the enforcement (including regarding the procedure to hold liable a juridical person), more adequate was the systematization from the previous Criminal Procedure Code (from 1968) where derogatory standards were situated after standards of common law, including in the matter of enforcement.
    Key words: juridical person, criminal liability, special procedure, Criminal Procedure Code, Criminal Code
    JEL Classification: K14
    SPECIAL PROCEDURE REGARDING THE CRIMINAL LIABILITY OF A JURIDICAL PERSON
        Page 261
  • Ana VIDAT
    Abstract:
    Execution of the individual employment contract – from the end and until terminated – put into play a complex set of legal rules, have certain traits that customizes to civil contracts that are similar. In fact, the cause of the individual labor contract is through its execution.
    Actual execution of the individual employment contract occurs during its existence. However, individual employment contract, even if terminated owing to any reason provided by law, may produce legal effects and after this time the following assumptions: ex lege; under a non-compete clause; under a confidentiality clause.

    Key words: the individual employment contract; non-compete obligation; obligation of confidentiality; non-compete clause; confidentiality clause.
    JEL Classification:K12, K31
    ASPECTS OF THE LEGAL EFFECTS WHICH IT PRODUCES INDIVIDUAL EMPLOYMENT CONTRACT AFTER TERMINATION
        Page 271
  • Luminita GHEORGHE
    Abstract:
    Trusts have existed in common law systems as early as the Middle Ages, and European civil law systems were aware of its existence and also of the existence of Roman private law fiducia. Yet, civil law systems resisted for a long time the temptation of transposing trust or at least of developing Roman law fiducia. Romanian law, for instance, preferred, on the one hand, developing a series of case law solutions acknowledging the common law trust and, on the other hand, admitting a series of trust-like mechanisms, while assuming the role of defender of private law principles considered fundamental, such as the personal character of the patrimony and the exclusive and perpetual character of the ownership right. Such status quo was maintained for a long time, with the consequence of generating a static relationship between trust and Romanian fiducia, with trustee mechanisms being, however, developed under Romanian law. Conversely, upon the regulation of Romanian fiducia, we tend to overlook its fundamental convergence with the common law trust. The evolution of Romanian law with respect to trust is however not the consequence of trust’s proven utility; it is its forced answer to the dynamics of international business.
    Key words: trusts, fiducia, Romanian Civil Code, common law, trust-like arrangements, comparative law.
    JEL Classification:K11, K12, K33
    FIDUCIA IN THE NEW CIVIL CODE: AN EXAMPLE OF VITALIZATION BY INTERNATIONAL BUSINESS LAW OF THE RELATIONSHIP BETWEEN ROMANIAN LAW AND COMMON LAW
        Page 276
  • Andrei Emil MOISE, Gabriela Ioana ROȘCA
    Abstract:
    The recent redrafting of the corporate governance legal frame at the European level, with emphasis on its functions of valorization and security of shareholders’ rights, maximizing profits and minimizing risks, raises the balance issue between the above stated goals and the necessity for compliance with employees’ rights. In this context, we intend to analyze the possibility for the labour regulations to be completed or substituted by the “soft-law” regulations, product of corporate governance, to identify the degree of stability, transparency and predictability of the employer-employee relationship and to identify the reconciliation methods between the apparently differing objectives of corporate governance and protection of employees’ rights.
    The study performs an analysis of the cases in which relevant provision form both corporate law and labour law are applicable, providing also practical examples from the real business environment, a comparative analysis of the relevant legal provisions from the principal EU member states and also an examination of the relevant doctrine.
    The research results indicate the negative effect of the poor implementation of the corporate governance rules over employees’ rights, but also the fact that compliance with employees’ rights can be and should be an instrument of the effective and transparent corporate governance rather than a barrier, providing several directions for improving the labour relations in the corporate environment.

    Key words: corporate governance, companies, employees, labour, collective agreements, soft-law
    JEL Classification: K31
    EMPLOYEES’ RIGHTS IN THE CORPORATE GOVERNANCE CONTEXT
        Page 284
  • Monica GHEORGHE
    Abstract:
    The herein study aims to clarify some confusions, that appear during the application and interpretation of the Labor code’s provisions regarding the dismissal for being professionally unfit established by Article 61 letter d) of Labor Code. In the absence of an express definition of this notion in the Labor Code, the jurisprudence has shaped some landmarks regarding the professional inadequacy. In order to enclose this concept it is necessary to draw up an analysis of the norms regarding the conclusion of the individual employment contract by verifying the employee's personal and professional skills as well as those regarding the dismissal for being professionally unfit. In order to establish the professional inadequacy, obviously, one must also bear in mind the employee’s job description, which is necessary to be related with the employee’s individual professional performance objectives, as they are unilaterally determined by the employer.
    The second goal of this research concerns the procedure of professional assessment of the employee, the analysis having as objectives the ascertainment of the legal document that must embody this procedure, the way to conduct the procedure and the consequences brought by this professional assessment.

    Key words: individual employment contract, professional inadequacy, professional assessment, dismissal
    JEL Classification: K31
    REMARKS ON THE PROFESSIONAL INADEQUACY IN THE LIGHT OF ARTICLE 61 LETTER D) OF LABOR CODE
        Page 294
  • Bogdan BIRIŞ
    Abstract:
    This paper highlights the existing conflict between EU law and the provisions contained in Bilateral Investment Treaties with respect to the arbitration clause. In the context of the post-Lisbon, the European Union has exclusive competence in the area of investment is the only entitled to conclude investment treaties with third countries. However, many Member States continue to maintain in force bilateral treaties signed pre-Lisbon and jurisdiction clauses which conflict with European law. This paper will analyze the case law and doctrine in the field and will try to find solutions to avoid possible bottlenecks that may arise when a Member State is in a position to choose between compliance with European law and the rest of its international obligations.
    Key words: Investment, EU law, primacy, K33 (International Law)
    JEL Classification:K33, K23
    THE EFFECTS OF THE PRIMACY OF THE EU LAW ON THE INVESTOR-STATE DISPUTE RESOLUTION MECHANISM
        Page 304
  • Vlad – Teodor FLOREA
    Abstract:
    This study concerns the general rules on competition between undertakings in the EU. The author paid attention primarly to matters on the prohibition of agreements that aim to distort or impair competition on the internal market. Moreover, he examined in detail the matter concerning the regulation and interdiction of the abuse of a dominant position. The work also reviews doctrinal opinions, as well as the jurisprudential solutions in the area. The author’s concern to summarize and develop the conditions for the implementation of each of the two legal mechanisms is worth noting: the prohibition of agreements between undertakings and the abuse of a dominant position. The essential considerations taken into account by the Court of Justice of the European Union in settling a case whose subject consisted of assessing the manner in which an undertaking reflected on competition on the internal market were selected at the end of the work.
    Key words: undertaking in the European Union, prohibition of agreements, types of agreements, abuse of a dominant position, relevant market, types of abuse
    JEL Classification:K23, K33
    CONSIDERATIONS ON THE RULES ON COMPETITION GOVERNING UNDERTAKINGS IN THE EUROPEAN UNION
        Page 308
  • Anca POPESCU-CRUCERU
    Abstract:
    The silent partnership raised a significant number of controversies, both in doctrine and in jurisprudence, most of them generated by the regulation comprised in the Commercial code, where the concept is provided with a different notional sense – the contract. The actual regulation comprised in the New Civil Code reflects an approach of the silent partnership within the legislative context of companies, thus referring to this associative form as to an entity presenting all particular components of companies, respectively the contributions, the affectio societatis, as well as the distribution of the benefits. The silent partnership does not own and cannot acquire legal personality, unlike the simple partnership, which, upon shareholders’ decision, it may become a company form regulated by the Law no. 31/1990 on companies.
    Key words: silent partnership, companies, agreement, affectio societatis, contributions
    JEL Classification: K12
    THE SILENT PARTNERSHIP IN ROMANIA– THEORETICAL AND PRACTICAL ASPECTS
        Page 323
  • Dragoș Lucian RĂDULESCU
    Abstract:
    In accordance with the provisions of Article 1270, paragraph 1 of the Civil Code, the valid contract concluded between the parties bears a juridical power equal to the law. The condition is met in a situation in which the legal act is validly concluded, in accordance with the legal provisions. Although the parties in such a contract may not derogate from the mandatory provisions of the law during the performance of contracts, within the legal system, however, certain situations may occur that determine whether courts shall assess the balance of benefits between contractors. This article is calling into question the legal character of unpredictability, the assessment method of the courts, as well as the frequency of this phenomenon in our national judicial system.
    Key words: contract, credit, consumer, unpredictability
    JEL Classification:K12
    UNPREDICTABILITY IN BANKING CONTRACTS. UNFAIR TERMS
        Page 331
  • Andreea SEUCAN
    Abstract:
    The scientific paper aims at presenting the relevant legal aspects related to data protection in the EU (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data) in view of the ruling of the Court of justice of the European Union (C131/12), the content of the judgement of the court, how it has been enforced so far by Google and its impact on EU citizen and future legislation.
    Key words: ruling, guidelines, reform proposals
    JEL Classification: K33, K36
    THE EU „ RIGHT TO BE FORGOTTEN”
        Page 336
  • Liviu-Titus PAVELIU
    Abstract:
    Unfair contract terms mark a delicate area in the field of consumer protection given the premise in which the consumer finds himself. This field of private law stems from the idea that the consumer needs an enhanced protection which from a legal standpoint may consist of introducing of measures of substantial law that can provide support in the precontractual phase, with evidence and even in understanding the legal consequences at hand. At a first glance, these comprise most of the benefits a consumer is granted and may choose to utilize in a litigation procedure against a professional in case on unfair contract terms. However, there is also a lesser known benefit that comes in the form of the obligation of the national courts to sanction on its own motion and in any procedural phase the occurrence of unfair contract terms. This line of thought has support within the Romanian legal system, but the decisive arguments in this sense com in the form of the case law of the Court of Justice of the European Union from the past decades.
    The purpose of this paper is to analyze the hystorical evolution of the active role of the court in civil law litigation, especially from the perspective of unfair terms cases in which consumers are parties to the proceedings, and to highlight the process that the Romanian judges have to follow in solving this type of cases.

    Key words: EU law, unfair contract terms, case law, litigation
    JEL Classification: K12, K41
    THE ACTIVE ROLE OF THE JUDGE IN THE FIELD OF UNFAIR TERMS LITIGATION
        Page 344
  • Mihaela TOFAN
    Abstract:
    Insolvency Code has revived theoreticians’ and practitioners’ discussions, equally. The voluntary arrangements procedure is considered a legal solution for the prevention and recovery from commercial actors’ financial difficulty. The current legal framework establishes a number of imperative conditions for the implementation of this procedure, but in many cases, the application of the current regulation generated different conclusions. In less than half a year, since the entry into force of the law, the practice for each court varied. The paper synthesizes separate opinions and proposes solutions for shaping a more precise legal framework.
    Key words: financial difficulties, legal framework, insolvency preceedings
    JEL Classification:K22, K23
    CONCORDAT PROCEDURE. LEGISLATIVE AND JURISPRUDENTIAL HIGHLIGHTS
        Page 353
  • Ovidiu JOIȚA
    Abstract:
    Overview. The concept of internal market it is a crucial and central ones in European modern construction. After the third legal package in energy the internal market of energy (electricity and gas) have to be fulfill until the end of 2014.Is this functional or just a theoretical projection? Can we see a direct and quantifiable effects? Is the regulation of energy network industries a proper answer and a direct intervention of State or have to be balance by competition? Is competition possible without regulation on this issue? Regulation of network industries is the prerequisite condition but without a real competition will be not an internal market. Methods. We assessed an individual case and possible scenario for Romania. Also a comparative methods was in place for understanding and analyses institutions (national regulatory authority) and mechanism of the market with some focus on the financial markets. Results. The methods used revealed that institution, with unambiguously attribution and competence, autonomous and independent and working mechanism with unambiguously attribution and competence represent a tools for achieve a real market. Nevertheless the predictable and well done regulations in energy, with a large debate with all the actors involved it is indispensable tools.
    Key words: energy law, internal market, European Union
    JEL Classification: K23
    SOME ASPECTS OF UNIFORMIZATION OF THE LAW AND THE PROBLEMS OF ELECTRICITY AND THE NATIONAL REGULATORY AUTHORITY FOR ENERGY IN ROMANIA
        Page 359
  • Lecturer Gabriela POPESCU, Lecturer Silviu JÎRLĂIANU
    Abstract:
    Various disputes and discussion regarding legal liability have not yet lead to a unitary definition of the same, each theory utilizing specific categories and notions that allow the achievement of an analysis of its research object in an own language, which renders the researcher’s task even more difficult.
    Key words: legal liability, legal behavior, responsibility, patrimonial sanctions
    JEL Classification: K42
    SHORT METHODOLOGICAL CONSIDERATIONS REGARDING THE LEGAL LIABILITY CONCEPT
        Page 363
  • Lecturer Cătălin-Silviu SĂRARU
    Abstract:
    This article examines the concept and features of the disciplinary administrative liability in the Romanian law.
    The article analyzes the subjects of the disciplinary administrative liability, the objective and subjective basis of such liability, and the types of disciplinary administrative punishments.
    Finally, I stressed the need to uniform regulations in the matter of disciplinary administrative punishments through the adoption in the future of a Code of Administrative Procedure.
    Key words: disciplinary offense; disciplinary administrative liability; administrative law; civil servant
    JEL Classification: K23; K42
    BRIEF CONSIDERATIONS ON THE DISCIPLINARY ADMINISTRATIVE LIABILITY IN ROMANIA
        Page 368