"Perspectives of business law" Journal

This volume contains scientific papers presented at the 5th International Conference "Perspectives of Business Law in the Third Millennium", November 20, 2015, Bucharest University of Economic Studies

Table of Contents

  • Claudiu Ramon D. BUTCULESCU

    Abstract:
    This article addresses some aspects of legal communication or legal effects of communication. As such, legal communication can have positive and negative effects. Both effects are briefly analyzed, and for the negative effects of legal communication we have also presented proposals to reduce the negative effects of law communication. Thus, the article presents the positive effects of right communication in various branches of law such as civil, constitutional law or tax law. On the other hand, the negative effects of communication leading to the deterioration of the legal message, so that much of the legal message becomes legal noise. Another negative effect of miscommunication of law is the phenomenon of legislative inflation, which has a profound impact on the way in which legal rules are understood and respected by community members. All these negative effects produce serious consequences in civil law, company law, tax law, and in many other areas of law.
    Key words: legal communication, legal noise, legal pollution, legislative inflation
    JEL Classification: K10

    CONSIDERATIONS REGARDING THE EFFECTS OF LEGAL COMMUNICATION
        Page 1

  • Ph.D. student Ioana-Andra PLEȘA
    Abstract:
    This study analyses the issue of the counterclaim in the Romanian civil procedural law and in some other European states, namely Spain, France and Belgium. The main objective of the study is to find similarities and differences of this incidental claim in the legislation of several European states. For this purpose, we analysed the Codes of Civil Procedure for each state in a comparative regard. Also, the purely legislative matters were correlated with juridical opinions in order to have a complex analysis. The counterclaim is an incidental claim of heightened importance, it is a reaffirmation of the principle of equality of the parties, both plaintiff and defendant, in the civil action. Taking into account that the doctrine gives to counterclaim the character of a real civil action, and that the practice confirms this aspect by the importance given to this request, its importance is undeniable, despite the stipulation brought by the New Code of Civil Procedure according to which the counterclaim is not mandatory in all cases. We consider that given the increased importance of the counterclaim, it should be mandatory in all cases and not optional, since its absence admits the interpretation that the main plaintiff agrees with the points raised by the defendant by his contestation (through counterclaim).
    Key words: counterclaim, plaintiff, defendant, principle of the parties in the civil action
    JEL Classification: K33, K41
    COUNTERCLAIM IN THE CIVIL PROCEDURAL LAW – COMPARATIVE LAW ISSUES
        Page 5
  • Lecturer Andreea Elena MATIC
    Abstract:
    The current paper contains a brief analysis of art. 316 provided in The National Education Law no. 1/2011 in conjunction with the penalties stated in Law no. 206/2004 regarding fair practices in scientific research, technological development and innovation, with additions and amendments, as well as The National Education Law no. 1/2011. The interesting aspect of this article of the law that completes common law (art. 248 (3) in the Labour Code) is that it establishes the possibility of lifting and cancelling the disciplinary sanctions within a year since being imposed by the competent authority. In the academic world, the issue of fair practice in scientific research is one of honour and it provides each member of the scientific community with a dignified and respected career. The infringement of the provisions in Law no. 204/2004 on conduct in scientific research, technological development and innovation, with additions and amendments, leads to imposing sanctions which adversely affect the researcher’s reputation. In our paper we analyse the applicable sanctions, the actual meaning of the phrase „improvement of the activity and conduct” of the sanctioned person in the context of fair practices in scientific research and, in our conclusions, we attempt at finding the requirements that have to be met in order to eliminate the negative ethical consequences, redeem the good name and regain the right to a honorary career.
    Key words: norms on fair practices in scientific research, disciplinary offence, lifting the disciplinary sanction
    JEL Classification: K23, K31
    LEGAL AND ETHICAL ASPECTS OF THE CONSEQUENCES OF IMPOSING THE DISCIPLINARY SANCTIONS PROVIDED IN LAW NO. 206/2004 ON FAIR PRACTICES IN SCIENTIFIC RESEARCH, TECHNOLOGICAL DEVELOPMENT AND INNOVATION, WITH LATER COMPLETIONS AND AMENDMENTS IN THE CONTEXT OF THE PROVISIONS IN ART. 316 IN THE LAW OF NATIONAL EDUCATION NO. 1/2011
        Page 10
  • Associate professor Emilian CIONGARU
    Abstract:
    Entitled as such to bring forward the law, the legislative institutions shall find the most appropriate expression in the legal language, in the content of legal norms and the manner this language is perceived by those to whom it addresses. In this respect, it makes use of certain specific procedures for bringing forward legal rules, procedures whose purpose is to explain and express as clearly as possible the legal rules it decides upon. The important proceedings used by the legislator are presumptions and fictions where the presumption considers that something is true, without any evidence and without proving its existence and the fiction is a certain process of the legislator or the judge by means of which a fact is deemed to exist or to be established although it does not actually exist neither has it really been established. An important presumption one can operate with is the presumption to know the law upon its publication, an presumption otherwise considered to be conclusive, unlikely to be challenged by anyone and under no circumstances. This presumption can have hard and undesirable effects in so that the individual called to account for the violation of law can bring evidence to testify he was actually in the effective impossibility of knowing the law.
    Key words: legal rule, legal proceedings, legal presumption, legal fiction, knowledge of the law
    JEL Classification: K10
    THE LEGISLATIVE TECHNIQUE AND PRESUMPTION OF THE OBLIGATION TO KNOW THE LAW
        Page 16
  • Ph.D. student Mihaela Diana FRĂTOAICA
    Abstract:
    In this paper we analyze the implications stages of legal liability in the general theory of law. This research work aims, through a thorough analysis on the land developed general theory of law, to present practical issues relating to legal liability. Define, examining interdependencies stages of evolution and legal liability; - Presentation stages novel legal liability in civil law of Moldova; - The analysis of the stages of legal liability; - Conclusions The current research paper was prepared using the research method of natural law and historical method. Also, the work was developed using research methods and theories positivist and critical-comparative theories. Theoretical basis of the research study consists of numerous studies and scientific papers of Russian and local doctrine publicized, in the final bibliography. Scientific originality of the results obtained from the research are that legal liability occurs when a certain mode of behavior does not fit in some limits accepted by social rules. Researchers, jurists, eminent authors from all over the world have a constant interest to reveal features of legal liability stages in a large number of works, both in the general theory of law and other branches of science in law.
    Key words: responsibility, legal liability, guilty, civil law, Moldova
    JEL Classification: K10, K42
    GENERAL CONDITIONS ON THE CHARACTERISTICS OF JURIDICAL RESPONSABILITY
        Page 23
  • Ph.D. student Florentina-Corina FLOAREA

    Abstract:
    Legislation setting up a political party has evolved in the post-communist period, from a set of minimum provisions regarding registration of parties to a number of restrictive rules meant to reduce the number of competing political actors. The number of members required for the establishment of a party rose from 251 in 1989 to 10,000 in 1996 and 25,000 in 2003, and the last legislative change in 2015 fell to three.
    Key words: political party, members, legislative change, democracy
    JEL Classification: K10, K39
    ESTABLISHMENT OF A POLITICAL PARTY
        Page 28
  • Lecturer Adriana Elena BELU
    Abstract:
    Article 1956 of the New Civil Code provides: “The transport contract is proved by shipping documents such as consignment notes, receipt of luggage, roadmap, bill of lading, travelticket or IDor other similar documents, from case to case”. The new Civil Code does not provide details regarding the form the transport contract, which means that the documents referred to in the legal standard concern the proof and not the validity of the contract. According to Article 1957 of the Civil Code, the transport may be carried out by one or more carriers, in the latter case it can often be successively combined. Successive transport is performed by two or more successive carriers using the same means of transport. Combined transport is that for which the same carrier or successive carriers use the same means of transport, reason for which it is also known as multimodal transport. Carriers that succeed one another hand over their goods and luggage until reaching the destination, without the intervention of the passenger or consignor [Article 1957, paragraph (3) of the new Civil Code].
    Key words: "the transport contract, form, proof and means of transport.
    JEL Classification: K12, K22
    THE TRANSPORT CONTRACT IN THE NEW CIVIL CODE FORM, PROOF AND MEANS OF TRANSPORT
        Page 34
  • PhD. student Adina PONTA
    Abstract:
    The duty of care, which sets the standard of conduct of a „good director” is currently governed by the Romanian Companies Act and the Civil Code. The corroboration of the two legal acts is challenging, the paper in hand aims at a comparative view of the legal norms and at the appraisal of the content of this fiduciary duty in the modern context of the competitive economy. The nature of this fiduciary duty and the cases when it can be defied according to the Romanian Law are discussed in terms of the literature and the case law that inspired the legislator. By creating parallels between the content of the agency and the traditional characters of the director's office, mainly tagged with legal prerogatives, the study will reveal the importance of the fiduciary characters of the director’s function. The conclusions will catch the effects of standardizing the substantive exercise of the duty of care and the importance of defining the fiduciary character of directors’ duties, both with respect to case law and as well for healthy business relationships.
    Key words: duty of care, agency, director, fiduciary duties, directors' liability.
    JEL Classification: K22
    THE EVOLUTION AND COMPLEXITY OF DIRECTORS' DUTY OF CARE
        Page 38
  • Lecturer Ana VIDAT
    Abstract:
    It is inconceivable that a contract executed by definition in time, could remain in all respects, in its original form in which the parties have concluded (in writing). Flexicurity requirements during the execution of the individual labour contract is not, in reality, only a requirement of the legislature - which translates options employer organizations - it is an objective necessity determined that occur after the conclusion of the contract a number of circumstances, situations, goals or subjective, requiring modification of.
    Key words:collective labor agreement; individual employment contract; legislation; contractual clauses; addendum.
    JEL Classification:K31
    CONSIDERATIONS ON THE RELATIONSHIP BETWEEN THE PROVISIONS OF THE APPLICABLE COLLECTIVE AGREEMENT AND THE INDIVIDUAL LABOR CONTRACT
        Pages 52
  • Lecturer Bazil OGLINDĂ
    Abstract:
    Over the years, arbitration has grown to be the preferred means of dispute resolution by commercial entities. One of the benefits that build the attraction for this system of dispute resolution was the principle of confidentiality. One issue that needs to be analyzed is about the reasons why confidentiality is so important in business. Confidentiality is a principle largely embraced in arbitration, but, as we will see, the principle is not an absolute one. There are a set of questions that needs to be answer to, like: Who is bound by the duty of confidentiality? Does this refer only to the parties or does it expands to other actors involved in the arbitral proceedings? What happens with the obligation of confidentiality when issues are brought before a court, taking in account the principle of open justice? We will see that in some countries are procedural laws allowing the courts to order an arbitration claim to be heard in public or in private. Another important aspect that has arisen in the last period is regarding the public policy and the protection of public interest as a limitation to confidentiality of arbitration. This is a sensitive matter especially when one of the parties is a state or a state entity. This study aims to explore the principle of confidentiality in arbitration by focusing on its domain and on its limits, both from the comparative approach and from the Romanian approach. Knowing all this aspects, we will realize the importance of having professional counseling when drafting an arbitration clause and how this can be the missing puzzle piece of your business.
    Key words: internațional arbitration; principle of confidentiality; aplications; limits
    JEL Classification:K33, K41
    THE PRINCIPLE OF CONFIDENTIALITY IN ARBITRATION. APPLICATION AND LIMITATIONS OF THE PRINCIPLE
        Page 57
  • Associate professor Brîndușa VARTOLOMEI
    Abstract:
    In the field of the law governing the legal work relations one of the features that also contributes to defining the autonomy of labor law is that of the existence of the specific sources of law consisting in regulation on the functioning of the employer, internal regulation, collective labor agreement, and instructions regarding the security and labor health. In addition, in the practical field of the labor relations some indirect (or derived) sources of law were also pointed out as coming from the employer and having general and permanent character. They are considered as being labor law juridical acts.
    Key words: specific sources of labor law; indirect (or derived) sources of labor law; employers’ unilateral juridical acts
    JEL Classification: K31
    BRIEF COMMENTS REGARDING THE INDIRECT (OR DERIVED) SOURCES OF LABOR LAW
        Page 65
  • Lecturer Ana-Maria LUPULESCU
    Abstract:
    The limited liability company, as regulated by Company Law no. 31/1990 republished, is the most used legal form of company, not only in Romania but also in other European countries. The option of the associates for the analyzed form of company is based on the advantages arising from its particularities, as they result from its specific juridical nature. Within this context, we consider that an analysis of this form of company, even though is not intended as exhaustive, but highlights particular significant aspects that underline its juridical specificity, may appear important and particularly useful, both for analysts in law and practitioners.
    Key words: limited liability company, specific aspects, juridical nature, limited liability company with sole associate
    JEL Classification: K22, K23
    SOME PARTICULARITIES CONCERNING THE LIMITED LIABILITY COMPANY
        Page 68
  • Assistant professor Cristina COJOCARU
    Abstract:
    Throughout its content, the memorandum of association, even in the case of a limited liability company, stipulates the contribution of each shareholder to the share capital while the share capital is divided into shares, corresponding to the contribution of each shareholder to the share capital. The limited liability company is established in consideration of the people who set it up and as such, the share transfer is subject to certain conditions provided by law. Therefore, the law sets out strict conditions for share transfer in the case the transfer is done to one or more shareholders, but especially if the transfer is done to people outside the company, or following the inheritance. If the transfer is done to a shareholder, such is possible provided that this transfer has not been prohibited by the act of incorporation itself. Instead, the transfer to people outside the company cannot be done without the consent of shareholders representing at least three quarters of the capital. In case of share transfer by succession, the law allows it provided that this transfer is permitted within the memorandum of association.
    Key words: company, shares, transfer, shareholder
    JEL Classification:K22, K23
    ASPECTS REGARDING THE SHARE TRANSFER
        Page 74
  • Ph.D. student Daniel MOREANU
    Abstract:
    The trust represents, according to the father of English modern legal history, Frederic William Maitland, „the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence”. Its special flexibility, has transformed the trust, initially linked with the common law systems, into a legal instrument adopted and integrated, specifically during the last few years, under civil law systems with which, previously, it has been deemed to be incompatible. The objective of this study is to review to which extent the trust is present and/or may be integrated under Romanian law, considering the modernist split patrimony theory introduced by the Romanian legislation under the Civil Code, as of its October 1st, 2011, its entry into force date. The research methods that we envisage using are the following: the comparative analysis, through which we aim at reflecting the legal existence of the trust under various legal systems, specifically the common law systems, and the economic analysis within which we propose to describe the economic reasons for which the trust is so widely used in the international business arena. We assess that the importance of this study is considerably greater in the international environment of the sole European and world wide market under which the existence of legal instruments (such as the trust) accessible to certain persons (natural, but more specifically legal persons) and out of reach to others, confers the former with a major competitive advantage
    Key words: the trust, the fiducie, patrimony, split ownership
    JEL Classification:K21, K22
    THE TRUST UNDER ROMANIAN LAW. FORM OF PATRIMONY SPLIT FOR NATURAL AND LEGAL PERSONS
        Page 79
  • Assistant professor Adriana DEAC
    Abstract:
    In transposing the provisions of Directive 2013/11/EU1 of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer and of Regulations 524/20132 and 2006/20043 of the European Parliament and of the Council on 26.08 .2015, published in the Official Gazette of the Government Ordinance no. 38/2015 on alternative dispute resolution between consumers and traders4. The normative act sets the legal framework for alternative dispute resolution national and cross under contracts of sale or service contracts between a trader operating in Romania and a consumer resident in the European Union through an entity of alternative dispute resolution. Ordinance provides the opportunity for consumers to present their complaints volunteer entities applying alternative dispute resolution procedures in order to ensure a high level of consumer protection and market functioning. This paper aims to present the scope of the order, persons who are subject to these legal regulations, the procedure they must follow consumers if they want to benefit from the provisions of this ordinance, analyze entities ADR, to highlight the importance of regulating this procedure.
    Key words: Alternative Dispute Resolution, consumers, traders, OG 38/2015, the ADR entity, sale and purchase contract, service contract.
    JEL Classification:K12, K22
    GENERAL TERMS OF THE AMICABLE SETTLEMENT OF DISPUTES BETWEEN CONSUMERS AND TRADERS
        Page 88
  • Lecturer Dragoş Lucian RĂDULESCU
    Abstract:
    Change of venue is a remedy offered to a party, which in case of legitimate grounds for suspicion or public safety may require that proceedings belong to another court than the court first seized. But change of venue is not based on a case of material or territorial lack of jurisdiction of the court, taking into account exceptional circumstances or impartiality doubt regarding the case. Thus, article 140 of the Code of Civil Procedure stipulates the possible causes of change of venue, including further issues that will determine jurisdiction to hear by the courts of control.
    Key words: removal, reason, expertise, enemies, impartiality
    JEL Classification: K41
    MOTION TO CHANGE VENUE. CASE STUDY
        Page 93
  • Lecturer Augustin Florinel Claudiu IGNAT
    Abstract:
    The present work treats the Usucapio institution as a special means of acquiring the right of property over real estate assets, regardless of the nature of the immovable asset, whether it is a land or a construction. The work outlines the novelties of the New Civil Code in matter of extinctive prescription, both concerning the means of acquiring property by real estate usucapio and regarding the terms and forms of real estate extinctive prescription. The New Civil Code institutes two new forms of real estate usucapio, tabular and extra-tabular usucapio which, according to the manner in which they are regulated from the point of view of the terms for fulfilling the acquisition prescription, nevertheless shorten the period of time corresponding to the temporary holder’s possession, regardless of the title by which it acquired possession and who can thus acquire property over a real estate asset by requesting the acknowledgement of the right of property over a period of time between 5 and 10 years, depending on the nature of the institution of the prescription invoked.
    Key words: usucapio, tabular usucapio, extra-tabular usucapio, extinctive prescription, real estate.
    JEL Classification:K11
    THE USUCAPIO INSTITUTION IN LIGHT OF THE CHANGES BROUGHT BY THE NEW CIVIL CODE     Page 98
  • Phd. student Mihaela CATANĂ
    Abstract:
    The present study proposes a comprehensive approach and analysis designed to highlight the evolution of regulations on work through Temporary Agency Work - from the regulations contained in the rules of the International Labour Organisation, of EU law and regulation that institution, temporary work, in Romanian labor law, once with the adoption of the Labour Code by Law 53/2003 - and the need to revise rules on temporary agency work by adopting effective measures for the protection of temporary employees, especially those posted borders. The purpose of this paper is to bring to the fore the need to develop uniform and effective regulations in the temporary employment contract and therefore the parties involved in this report, so that the transposing Directive 2008/104/EC on temporary agency work and other directives implemented in the field: Directive 96/71/EC applicable temporary employment relationships, implicitly the Directive 2014/54/EU on the enforcement of its application, and Directive 2014/67/EU, to continue the harmonization of national rules with EU, reported problems generated by the lack of a legal framework effectively to prevent abuses and misunderstandings arising in the application of legal norms by different state institutions involved in these tasks.
    Key words: Temporary Agency Work, contract of temporary employment, European Union, Convention, The Directive, temporary workers.
    JEL Classification:K31
    ISSUES REGARDING THE WORK REGULATION THROUGH THE TEMPORARY WORK AGENCY IN EUROPEAN UNION LAW AND NATIONAL LAW
        Page 103
  • Professor Raluca DIMITRIU
    Abstract:
    The employee who concluded a part-time contract is the employee whose normal working hours, calculated weekly or as monthly average, is lower than the number of normal working hours of a comparable full-time employee. Part-time workers generally have the same legal status as full time workers. In fact, the vulnerability of this category of workers is not necessarily legal but rather economic: income - in proportion to the work performed, may be insufficient to cover the needs of living. However, such vulnerability may also have a certain cultural component: in some societies, professional identity is determined by the length of working hours. Also, part time work may hide many types of indirect discrimination. As a result, the part-time contract requires more than a protective legislation: it requires a strategy. This paper proposes a number of milestones of such a strategy, as well as some concrete de lege ferenda proposals.
    Key words: Employment contract, part-time, comparative law, Labour Code.
    JEL Classification:K31
    VULNERABILITY OF PART TIME EMPLOYEES
        Page 111
  • PhD. student Raluca TOMESCU
    Abstract:
    The main problem with the execution of a leasing contract in Romania is that there are still shortcomings to the laws in force. The complexity of this contract which, at first sight, seems so commonplace, as well as the void in our ambiguous law are an inexhaustible source of research and exploration, but also the origin of controversial conflicts. With this paper I decided to elaborate I would like to contribute to consolidating the ”status” of national leasing operations, which are still in search of their own identity. Aiming to place the leasing contract back in its rightful place, that of a contract from which nobody has anything to lose but everything to gain, I consider it appropriate to analyse the conditions and effects of the commissoria lex fragments inserted in the leasing contract. One of the most controversial aspect of these last years brought to the attention of the courts of law cases where the financier, once the leasing contract was cancelled, requests the foreclosure of the user. The cancellation we are taking into account is based on the commissoria lex inserted in the clauses of the leasing contract. We have therefore to analyse whether the foreclosure of the user can be carried on, based on the provisions of GO 51/1997 referring to leasing contracts.
    Key words: comissory pact, lease contract, termination agreement
    JEL Classification:K12, K22
    CONDITIONS AND EFFECTS OF THE COMMISSORIA LEX IN THE LEASING CONTRACT
        Page 117
  • Professor Silvia Lucia CRISTEA
    Abstract:
    The analysis of a case where the rate of the conventional interest is not specified made me investigate what is the maximal limit that can be obtained in this case, under the regulation in force, in the Romanian law (sect.1)!To formulate a solution, I considered as necessary to analyze : the provision on the moratory damages (according to the Roman Civil Code) and the putting of the debtor in default, in order to know what is the date starting from which the moratory damages are calculated (according to the Roman Civil Code)-sect.2; the juridical regime of the interest (according to the Roman Bankin Law)-sect.3;comparison between the remuneratory interest and the penalizing interest (according to the Roman Banking Law)-sect.4;solution for the case and conclusions-sect. 5.
    Key words:legal interest, remuneratory interest, penalizing interest, banking law
    JEL Classification:K12, K22
    JURIDICAL REGIME OF THE INTEREST IN THE ROMANIAN LAW. PARTICULAR CASE. COMPARISON BETWEEN THE REGULATIONS OF THE REMUNERATORY INTEREST VERSUS THE PENALIZING INTEREST, IN THE ROMANIAN BANKING LAW
        Page 121
  • Lecturer Andreea Corina TÂRȘIA
    Abstract:
    Romanian jurists described the fiduciary agreement either by rendering texts of the Civil Code, or by taking over all or part of the definitions, opinions, interpretations and even some examples given by various authors, jurists, economists and financial experts in the bank field. However, after three years from its adoption, there is uncertainty about the legal regime applicable to the fiduciary agreement, created by the ambiguity and contradictions of the texts of the Civil Code. So, as a first step, the Civil Code defines fiduciary agreement as a transfer of/and over certain rights composing the fiduciary assets (art. 773) and over these rights the trustee undertakes the exercise of the full, holder specific powers (art. 784 para. 1), but subsequently it states that the fiduciary assets consists of goods (art. 786). Secondly, the Civil Code suggests that the fiduciary agreement is a contract establishing first degree movable securities (art. 781) or a contract of mandate (art. 783) and, regarding the trustee’s remuneration, a contract of managing another person’s properties (art. 784 par. 2), being uncertain whether the administration is simple (art. 795 - art. 799) or full (art. 800 to art. 801). Also, although the Civil Code limits the fiduciary capacity exclusively to lawyers, public notaries and credit institutions, investment companies and investment management firms, financial investment services companies, legally established insurance and reinsurance companies (art. 776 par. 2 and para. 3), it does not describe the rationality of this option. These reasons make necessary the analysis of the legal status and professional duties of the fiduciary trustees, to understand the relevance of their specialized activity, in order to answer the question whether together with the specific risks of the transactions imposed by the fiduciary contract there is also a possible the risk of capital laundering. The answer to this question requires a holistic approach based on risk and identifying mechanisms, situations, facts related to money laundering in order to obtain legal arguments to determine in the future the adoption of an effective national legislation, corresponding to the requirements of the European Union law and in particular to those set out in the (EU) Directive 2015/8492 and to those that ensure the international cooperation instruments in the protection of the capital market.
    Key words: Trust, trust company, trust agreement, securities market, capital laundering.
    JEL Classification:K21, K22
    IS CAPITAL LAUNDERING POSSIBLE THROUGH FRAUDULENT USE OF FIDUCIARY AGREEMENT BY TRUST/FIDUCIARY COMPANIES?
        Page 129
  • Lecturer Simona CHIRICĂ
    Abstract:
    The sale of agricultural lands located out-side the built-up areas has been recently limited through the obligation to follow the preemption procedure based on Law no. 17/2014, as subsequently amended (”Law 17”)2 on the regulation measures for sale of agricultural lands located out-side the built-up areas and for the amendment of Law no. 268/2011 on the privatization of companies holding in administration public or private State owned agricultural lands and the establishment of the State Domains Agency. The preemptors are: (i) the joint owners, (ii) the lessees, (iii) the neighboring owners, (iv) Romanian State, through State Domain Agency. The preemption procedure commence with posting by the seller of its sale offer at the competent city hall and ends with the issuance of the positive/negative sale approval or, as the case may be, the conclusion of the sale agreement with one of the pre-emptors.
    Key words: sale agreement, sale offer, preemption right, agricultural lands
    JEL Classification:K11, K12
    THE PREEMPTION RIGHT REGARDING THE TRANSACTIONS OF AGRICULTURAL LANDS LOCATED OUTSIDE THE BUILT-UP AREAS
        Page 135
  • PhD. Radu Ştefan PĂTRU
    Abstract:
    Imprevision was first regulated in the internal law by the current Civil Code in response to doctrine and jurisprudence appeals but also due to the new economic, social and political realities. Apart from civil agreements, due to the dynamics of economic activity, the question of the applicability of imprevision for other contracts is raised. In this study, we shall analyze the possibility of applying imprevision in individual and collective labour contracts.
    Key words: unforeseeability, adjustment of agreements, individual labour contracts, hardship clause, collective labour contracts
    JEL Classification:K12, K31
    ASPECTS REGARDING IMPREVISION IN EMPLOYMENT CONTRACTS
        Page 145
  • Lecturer Raul Sorin FÂNTÂNĂ
    Abstract:
    The work is a study of the important implications of engineering interpretation of protection corroboration, reduced in time and conditioned by the payment of patent related fees, with the longer lasting and free of tax conditioning provided by copyright to any opera, technical creation included. The theme is based on the conclusions of some expert reports on intellectual/industrial property, managerial and unethical behavior observation and damage value, and proposes a systemic, realistic and organic approach of the two laws from the perspective of the patrimonial rights of the holder.
    Key words: technical expert report, intellectual-industrial property, technical work, technical jurisprudence
    JEL Classification:K41, L15, O34
    LEGAL IMPLICATIONS OF INTERPRETATION OF THE APPLIED INVENTION AS ENGINEERING CONCRETE OPERA
        Page 151
  • Lecturer Charlotte ENE; Lecturer Ileana VOICA
    Abstract:
    The main purpose of the Proposal for a Regulation on a Common European Sales Law (CESL) is to establish “a comprehensive set of uniform contract law rules covering the whole life-cycle of a contract” In the field of B2B transaction, the CESL, a regional legal provision, seems to bear several similarities with the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 1980. This paper will examine the relationship between both legal instrument for uniformisation of sales law at regional and global level. Thus, it will compare the provisions regarding the major aspects of the commercial sale contract, such as: the objectives, the scope of application, the formation of contract, the rights and obligations of the parties, and the conflict of laws problem, as well. In the end, it will be analyzed whether the CESL offer better solutions than those already found in the CISG in order to stimulate the cross-border sales.
    Key words: CISG, CESL, Private International Law, Sales Law, harmonization, B2B transactions.
    JEL Classification:K12, K22
    LEGAL ENVIRONMENT FOR B2B CROSS-BORDER SALES BETWEEN CISG AND CESL
        Page 159
  • Professor Liviu-Bogdan CIUCĂ
    Abstract:
    The principle of priority and direct application of European rules in relation to the provisions that we find in the national legislation, once assumed at European level, it has generated debates and concerns about the usefulness of a single legal act in private law matters. The idea of European Civil Code, appeared somewhere in the early 80s, is becoming more current and triggers a justified and sustained interest. Considering that the civil legislation of Community Member is a legislation dominated by tradition and peculiarities of culture, religion and temper, the issue of a European Civil Code forms as a project generating discussions, restraints and even rejections of the Member States in relation to this proposal. The current system of European legislative acts that apply immediately and priority in EU member states remains only a temporary solution and which generates difficulties in interpretation and affects the utility of the enactment. Clarifications on the pros and cons to promote a European Civil Codex will be analyzed primarily in terms of law and, last but not least in terms of political perspective, taking into account the Community objectives undertaken by accession treaties and the need for a legislative norm, especially European, to be predictable, transparent, useful and accessible. This paper intends to submit to debate both current doctrinal arguments, the blocking of such an approach, based on the principle of autonomy and the peculiarities of the legal system of each Member State, but also considering the practical arguments and of simplification of rules met in a European Civil Code assumed and applicable in the European space.
    Key words: European law, code, law, norms, civil law
    JEL Classification:K10, K33
    EUROPEAN CIVIL CODE BETWEEN DESIDERATUM AND REALITY
        Page 163
  • Ph.D. student Cristiana MIC-SOARE
    Abstract:
    The necessity of this analysis results following the recent decision passed by the Court of Justice of the European Union interpreting a fundamental provision of the Water Framework Directive 2000/60/CE, art. 4 para. (1) lit. (a) pt. (i)-(iii). The decision's importance arises mainly due to the foreseen impact on projects developed on bodies of surface water. Thus, one of the potentially affected areas is that of micro-hydropower plants, since the fall by one class of any quality element, even if this does not determine a fall in classification of the body of surface water as a whole, breaches the obligation not to deteriorate the status of a body of surface water. If the affected quality element is already in the lowest class, any degradation breaches the said obligation. This interpretation's impact is even higher, as the Court concluded that the analyzed provisions imply the states' obligation to refuse authorizing projects that could cause the deterioration of the status of a body of surface water or that impact on the attainment of good surface water status or of good ecological potential and good surface water chemical status. The main scientific research methods used are the comparative, logical, historical and sociological methods.
    Key words: deterioration of the status of a body of surface water, protection of surface waters, Case C-461/13, Court of Justice of the European Union
    JEL Classification:K33, K41
    THE IMPACT OF THE DECISION OF THE COURT OF JUSTICE OF THE EUROPEAN UNION IN CASE C-461/13 REGARDING THE NOTION OF “DETERIORATION OF THE STATUS” OF A BODY OF SURFACE WATER
        Page 167
  • Lecturer Ovidiu – Horia MAICAN
    Abstract:
    Competition rules applicable to undertakings are the most important rules of the Community competition law. They present a direct effect and apply primarily to enterprises. But even the Member States must take into account these rules and should not favor prohibited behaviors. Prohibition of agreements restricting competition, abuse of dominant position, merger control and state aid are the pillars of European law (EU) competition.
    Key words: competition, anticompetitive practices, businesses, undertakings
    JEL Classification:K21, K22, K33
    ANTICOMPETIVE PRACTICES
        Page 180
  • Associate professor Ioana Nely MILITARU
    Abstract:
    Court of Justice of the European Union (CJEU) performs according to its competence, the position of International Justice in solving disputes between two or more subjects of international law. International jurisdiction of the Court of Justice of the EU is - mandatory that each Member State has the opportunity to seize this court if it considers that another state violated an obligation incumbent upon it under Union Treaties; - optional in disputes between Member States in connection with the subject Union Treaties.
    Key words: Court of Justice, international justice, litigation, EU treaties, compulsory jurisdiction, optional jurisdiction
    JEL Classification:K33, K41
    COURT OF JUSTICE OF THE EUROPEAN UNION - INTERNATIONAL COURT
        Page 187
  • PhD. student Marioara MAXIM
    Abstract:
    The current technological progress triggers a new approach in the way the personal data are collected, processed or stored, by a multitude of data controllers or processors involved in the chain of trophic relations in the delivering of cloud computing services. In this circumstances, it is our objective to examine the rights and obligations of the contractual parties involved in the cloud computing agreements according to the European Union law and national legislation, and their legal consequences for the data subjects.
    Key words: cloud computing, data privacy, contract, data protection
    JEL Classification:K12, K23, K30
    THE RIGHTS AND OBLIGATIONS OF THE MAIN STAKEHOLDERS IN CLOUD COMPUTING SERVICES
        Page 190
  • Associate professor Mihaela TOFAN
    Abstract:
    The paper analyzes recent EU actions in order to develop banking regulation towards having a real and operational banking union. The role and the present policy of the ECB is also addressed. EU banking priorities are presented, emphasizing the transformation imposed by the global financial crises and the recent cooperation among member states of the union. The interconnection banking-fiscal union is also approached, concluding on the mandatory steps to be taken in order to have a real support of the legal framework.
    Key words: financial and banking integration, reform the legal framework, proposals for law ferenda
    JEL Classification:K22, K33
    LEGAL FRAMEWORK TRANSFORMATION TOWARDS EUROPEAN BANKING INTEGRATION
        Page 204
  • Research Assistant Bogdan BIRIŞ
    Abstract:
    The objective of the study is to make an overview of main the standards of treatment afforded to investors and investments under and bilateral investment treaties. We will look at international treaties, legal writings and judicial sources (arbitral awards) in order to establish the most common standards of treatment to be found in BITs. The study will aim to provide a clear analysis of different provisions contained in investment treaties, in reference to the standard of national treatment, fair and equitable treatment, most favor nation clause and the expropriation clause. Considering that international treaties are an integral part of the national legislation of Romania, the study hopes to offer some guidance to national organizations and institutions on how to negotiate, interpret and apply the standards of protection contained in Investment Treaties
    Key words: Investment, expropriation, national treatment, fair and equitable treatment.
    JEL Classification:K22, K33
    INVESTOR PROTECTION AND BILATERAL INVESTMENT TREATIES - AN OVERVIEW OF THE MAIN PROVISION -
        Page 209
  • Associate professor Marilena MARIN; Associate professor Mădălina BOTINĂ
    Abstract:
    Our paper is an empirical study that analyzes the notification to the persons concerned of the precautionary measures, such as privileges/liens, which can be taken on vessels/ships, the latter being regarded as movable property. Based on legal relationships of civil law, which have the nature of the common law in this area, as well as on the fact that vessels/ships are regarded as movable property, we considered interesting to analyze the privileges /liens which may establish thereon. Once the privilege/lien has been established, it must be brought to the knowledge of any person concerned because, otherwise, any such privilege/lien cannot be enforceable to any person, generating thus disputes between parties, whether or not they are contractual partners. The main idea of our approach is represented by the legal relationship, seen, on the one hand, as a social patrimonial relationship regulated by the rule of law typical of the analyzed field, and, on the other hand, as a real legal relationship, as it regards a specific category of goods, namely, the movable property. Under the incidence of the old Civil Code (1864), the pledge with or without dispossession was established on movable goods. The mortgage was specific to immovable property. The new Civil Code (2009) comes with a legislative amendment allowing the establishment of several types of privileges/liens over movable property, including mortgages. As previously mentioned, after taking the measures that establish the liens on property, these formalities should be brought to the knowledge of the persons concerned in order to ensure the legal balance at social level.
    Key words: maritime privileges, movable publicity, ship.
    JEL Classification: K11, K33
    MARITIME PRIVILEGES IMPOSED ON SHIPS IN THE MARITIME DOMAIN. TRANSCRIPTION AND MOVABLE PUBLICITY THESE PRIVILEGES
        Page 214
  • Lecturer Diana LAZĂR
    Abstract:
    Following its National Strategy of Justice Reform 2011-2016, the Republic of Moldova has aimed to improve its national laws and practices regarding the effects of foreign arbitral awards. Lately, the code of civil procedure has been amended and the Supreme Court of Justice adopted a decision for a more uniform jurisprudence on the recognition and enforcement of foreign arbitral awards. Being part to the New York Convention of 1958 on the recognition and enforcement of foreign arbitral awards, the Republic of Moldova needs to bring its national law and judicial practice in line with the standards of the international treaty. Also, a favorable legal environment for the international efficiency of the foreign arbitral awards would respond to the Moldova’s goals to integrate into the international and European trade, which became topical considering the signature of the Association Agreement with the EU and the economic embargos announced by the Russian Federation. This articles aims to assess the conformity of the national law of Republic of Moldova with the New York Convention of 158 and to identify the main rules for the recognition and enforcement of foreign arbitral awards within Moldova’s territory.
    Key words: efficiency, foreign arbitral awards, Republic of Moldova, New York Convention of 1958 on the recognition and enforcement of foreign arbitral awards.
    JEL Classification:K33, K41
    EFFICACITE DES SENTENCES ARBITRALES ETRANGERES EN REPUBLIQUE DE MOLDOVA, DANS LE CONTEXTE DE LA CONVENTION DE NEW YORK DE 1958
        Page 222
  • Lawyer Diana-Loredana JALBĂ
    Abstract:
    In order to ensure the effective protection of human rights and provide for more than theoretical and illusory substantive rights, the need to define the right to a fair trial is emerging, along with the necessity that litigants become aware of the guarantees established by article 6 of the European Convention on Human Rights. Thus, the article aims to approach the ample issue regarding the litigants’ right to a fair civil trial in light of current legal regulations, and in particular, in light of the jurisprudence of the European Court of Human Rights. Given the fact that the right to a fair civil trial involves establishing, throughout the trial, a set of rules of procedure aimed at creating a balance between the parties in the process - the so-called guarantees of a fair trial - in her scientific pursuits, the author analyzes both explicit and implicit guarantees of fair trial, highlighting relevant European standards as well as their degree of implementation in the national (procedural) law.
    Key words: fair trial, fundamental right, CEDO, guarantees
    JEL Classification:K33, K40
    GUARANTEES OF THE RIGHT TO A FAIR CIVIL TRIAL
        Page 233
  • Mediator Laura RUDNYANSZKY
    Abstract:
    This paper analyzes, on the one hand, the existing casuistry in relation to the applicability and functionality of the criminal procedural law in the everyday practice in international judicial cooperation, casuistry which concerns the territoriality principle as a fundamental principle, as well as the implications of this principle with respect to the crime phenomenon which requires the states’ vigilance to fight against crime, this being possible under lawful conditions only by establishing certain jurisdiction rules (quod competit cuique) imperious both at internal and European level, and the exceptions from the territoriality principle of the criminal procedural law, and, on the other hand, theoretical and practical aspects related to the application of Law no. 302/2004, as subsequently amended, and the methods of international judicial cooperation in criminal matters. The examining of this issue is required given the importance of the notion analyzed in the light of the functioning of the criminal proceedings mechanism, and given the progress of the Romanian law system, characterized by relevant regulations, which tend to integrate the Romanian legislation into the legislative system of the European Union.
    Key words: European arrest warrant, criminal matters, the territoriality principle, legislation
    JEL Classification: K33, K40
    DETAILED RULES FOR THE IMPLEMENTATION OF INTERNATIONAL JUDICIAL COOPERATION IN CRIMINAL MATTERS
        Page 247