"Perspectives of business law" Journal

This volume contains scientific papers presented at the 6th International Conference "Perspectives of Business Law in the Third Millennium", November 25-26, 2016, Bucharest University of Economic Studies

Table of Contents

  • Lecturer Dragoș Lucian RĂDULESCU

    Abstract:
    Labour jurisdiction represents the institution required to apply legal procedures by the means of competent bodies to resolve conflicts among employees and employers concerning the conclusion, performance or termination of employment. The application of labour jurisdiction procedures are related to the special nature of labour relations aimed at protecting the rights and interests of employees. The article details the procedural means to resolve individual labour conflicts in matters related to the compensation of material and moral prejudices of the employer resulted from the infringement of the legal duties of the employer in terms of violating the equal treatment and discrimination principle. There are also detailed the discrimination concept in labour relations, applicable law, legal effects as well as applicable discrimination criteria.
    Key words: patrimonial, responsability, contestation, criteria, discrimination.
    JEL Classification: K31

    PATRIMONIAL RESPONSIBILITY OF THE EMPLOYER. CRITERIA FOR EMPLOYEE DISCRIMINATION
        Page 1

  • Lecturer Aurel Octavian PASAT, Ph.D.
    Abstract:
    The study undertaken aims at analyzing and determining the status, structure and dynamics of crime in the customs sphere, stressing that the charging structure in customs crime contributes to the knowledge of numerical composition and morphology (forms of crime) crime in a particular period and into a specific geographical area, understanding the general condition, overall, or those particular detailing the phenomenon on various statistical indicators, based on which can be carried out comparative studies on certain periods to see trends and dynamics of the whole and different parts , analytical, allowing the formulation of weather and detection determinants contributing to the commission of unlawful acts in the customs sphere. In the study they were used various research methods, including: analysis, synthesis, deduction, induction. In order to intensify the struggle with the phenomenon of crime in the customs sphere in the study are advanced some proposals to improve the legal framework incriminating. In the same row it was argued the need to shift prosecution competence as specialized subdivision besides the National Customs Authority in order to streamline the recording and investigation of customs offenses. Key words: customs offense, crime, customs authority, smuggling, border security, illegal trafficking
    JEL Classification: K14, K42
    CRIMINOLOGICAL ASPECTS ON CUSTOMS OFFENCES IN ROMANIA
        Page 8
  • Lecturer Claudiu Ramon D. BUTCULESCU
    Abstract:
    This article studies the relationships and interactions between fundamental human rights and natural law school. The objectives of this paper are circumscribed to the way fundamental human rights, by their nature, can be integrated within the doctrine of natural law or to the contrary, may be related to various branches of legal positivism. In specialized literature, it was pointed out that fundamental human rights constitute genuine natural rights which have the same natural law recognized attributes: immutability, non-alienable nature et. al. However, in the context of contemporary changes within the European Union, generated by cultural differences which are becoming ever more significant, the question rises of whether those rights are in fact a creation of legal positivism. Within the paper there are several doctrine opinions described, as well as some arguments for reconsidering the placement of fundamental rights within the sphere of legal positivism. Using the comparative method, the study analyzes the common points and the points of divergence between fundamental rights and the doctrines of natural law and legal positivism, seen through the prism of the general theory of systems, legal culture, legal colonialism and legal ethnocentrism.
    Key words: natural law, human rights, legal cultures, legal ethnocentrism
    JEL Classification: K10
    CONSIDERATIONS REGARDING THE INTEGRATION OF FUNDAMENTAL HUMAN RIGHTS IN THE SYSTEM OF NATURAL LAW
        Page 21
  • PhD. student Adriana Elena BELU
    Abstract:
    The parts to the contract are the shipper freight and the carrier. But the beneficiary of the contract is the conignee, although he doesn’t take part to the signing of the contract, he is (if he is adhering to the contract) acquirer of rights and obligations which result from the contract of carriage. The contract of carriage is considered an exception to the principle of relativity effects of the legal act and it is considered by some authors in the literature as a stipulation for another with certain features. Stipulation for another is the contract whereby one part (stipulate) provide that the other side (promisor) to give, to do or not to do something for the benefit of a third person (beneficiary) who do not participate, and he doesn’t take part to the conclusion of the contract. It is considered the only real exception of the principle of relativity. Called contract for another's benefit, stipulation for another creates for the beneficiary third-part right, directly and immediately created in his benefit since the conclusion of the contract between the promisor and the stipulate. The right is created from the time of signing the contract, in the patrimony of beneficiary, regardless of beneficiary’s accepting or waivering this right.
    Key words: the stipulation for another, transport contract, relativity effects of the legal act, the shipper freight, the carrier
    JEL Classification: K12
    TRANSPORT CONTRACT - EXCEPTION TO THE RELATIVITY EFFECTS OF LEGAL DOCUMENT
        Page 25
  • Asisstant professor Adriana DEAC
    Abstract:
    Lisbon Treaty on the Functioning of the European Union regulates Article 50 posbilitatea Member States to withdraw voluntarily respecting national constitutional provisions2. BREXIT (Britain and exit) is the term that has been named Britain's withdrawal from the European Union3. Following a consultative referendum held in the UK in June 2016 52% of the votes cast were in favor of leaving the EU. The new prime minister of Great Britain, Theresa May announced that by the end of March 2017 the government he leads will invoke Article 50 of the Treaty on the Functioning of the European Union, triggering the formal withdrawal, it will be finalized by in late March 20194. Beyond the political and economic implications, unprecedented in the perste 60 years of the European Union (including the three European Communities), the procedure of withdrawal from the European Union and Brexit site raises a number of legal issues, uniqueness being the consequence of the that such a procedure has never been used again anyway not in this form, on the one hand and, on the other hand, it is a state belonging to the system of common law based on judicial precedent which, in this case , does not exist.
    Key words: withdrawal Brexit, the European Union, the Treaty of Lisbon, UK referendum.
    JEL Classification: K33
    WITHDRAWAL FROM THE EUROPEAN UNION ACCORDING TO ART. 50 OF THE TREATY OF LISBON. PRACTICAL APPLICATION – BREXIT
        Page 29
  • Lecturer Alina OPREA

    Abstract:
    The problem enforceability of agreements conferring jurisdiction to persons other than the parties that have accepted knows no textual legal settlement in European procedural law. Through its action, the European Court of Justice, however, brought important clarifications in the matter, without following yet a uniform: the disputes brought before it, the high European court preferred for certain hypotheses to consider solutions of national law, effectiveness agreements conferring jurisdiction admissible conditioning; other times, she opted for the formulation of European autonomous substantive rules recognizing or, alternatively, directly denying their effectiveness. In an attempt to bring more clarity in the matter, the study proposes a review of existing solutions, identifying their justifications and offering several key milestones that should be considered in solving concrete problems in practice.
    Key words: choice of court agreements, opposability, assignment of contract, chain of contracts transferring ownership, contract containing a stipulation in favour of a third party, article of association
    JEL Classification:K12, K22, K41
    REGARDS SUR OPPOSABILITE A L’EGARD DES TIERS DES CONVENTIONS ATTRIBUTIVES DE JURIDICTION DANS LES LITIGES INTERNATIONAUX (ASPECTS REGARDING THE ENFORCEABILITY AGAINST THIRD PARTIES OF CHOICE OF COURT AGREEMENTS IN INTERNATIONAL DISPUTES)
        Page 33
  • Lawyer Călin Viorel IUGA
    Abstract:
    Identifying the risks generated in the matter of by the assignment of claim arising from a bank loan agreement following the review the of the court judgments delivered by courts within the Cluj Court of Appeal. The result of the study is practical, topical, with implications on the banking market in Romania of the practitioners identified deem that the bank loan agreement loses its enforceability following the assignment of claim, and the novation of the assignee creditor during the enforcement did not occur.
    Key words: "bank loan agreement, lack of execution order, lack of creditor capacity, cancellation of enforcement
    JEL Classification: K12, K41, K42
    RISKS IN THE ENFORCEMENT OF ASSIGNMENT OF CLAIM ARISING FROM A BANK LOAN AGREEMENT
        Page 47
  • Master student Cristina-Simona CĂPĂŢÎNĂ (DUMITRACHE)
    Abstract:
    This article aims to examine the effects of the principle of non-retroactivity of law. While the first section deals with the principle of non-retroactivity of the law in terms of Romanian civil law, the next section presents cases of compliance, but also several cases of violation/breach of the principle enunciated, identified in the tax matter. By researching the date when legal acts or deeds are concluded or, as the case may be, committed or produced, in relation to the effects of the new law over them, we are submitting to a non-retroactivity test some texts from tax laws governing the obligation of the taxpayers to pay tax on profit when no longer meet the conditions to be micro-enterprises, obligation of the individuals without revenue to pay social health insurance contributions, the obligations of the persons carrying out transactions with related parties to draw up transfer pricing file. The effect of the facta pendentia situation is presented and analyzed on a specific case of transfer pricing, which may be misinterpreted as a breach of the principle of non-retroactivity of the law. Precisely for this reason the conclusions present utility both for law theorists and practitioners.
    Key words: principle of non-retroactivity of law, facta pendentia, fiscal legislation, transfer pricing, tax law.
    JEL Classification: K34
    THE PRINCIPLE OF NON-RETROACTIVITY OF CIVIL LAW - DEVIATIONS IDENTIFIED IN THE MATTER OF TAX LEGISLATION
        Page 54
  • PhD student Corina ARSENIE-SCARLAT
    Abstract:
    The successive suspensions of aid payments from 2011 and to date, as provided by the framework Law 284/2010-Annex ,7 for uniform pay, amended, section 3, have caused serious damage to property observance, as guaranteed by Art. 1 of Protocol no. 1, additional to the European Convention on Human Rights. ”Invoking the country's economic and financial situation by the legislator, in order to restrict the exercise of a fundamental right springing from a law that is still in force, is not sufficient, but that restriction must meet all the requirements specified in Art. 53 of the Constitution”2. The rules that have the effect of "sine die" suspending the rights of former employees, now retired, restrict and limit forcedly their rights guaranteed by law and cannot be considered democratic measures, as long as successive suspensions can affect the very existence of the law. Research methods used: direct documenting through case studies from personal law practice and not only, as well as from primary and secondary bibliographic documentation. Results and implications of the study: the impact of these rules that defer the payment of aids to former employees is significant, in that they bring material losses, but also that it violates the constitutional principle of the rule of law. Sue petitions pending lawsuit in courts have been formulated, whereby admitting the application of these rights and compelling former employers to pay the ”aids” given by the law, and largely the courts upheld these claims.
    Key words:aids under Law 284/2010, the restriction of a fundamental right, pecuniary rights, the principle of laws' supremacy, art. 1 of Protocol No. 1 additional to the European Convention on Human Rights, CEDO jurisprudence.
    JEL Classification:K10, K42.
    SINE DIE SUSPENSION OF LAW ENFORCEMENT - REASON FOR THE CESSATION OF ITS EXISTENCE?
        Pages 61
  • Lecturer Bujorel FLOREA
    Abstract:
    The study proposed by the author discusses a distinct version of the sale-purchase agreement, i.e. the sale subject to term or condition. The scientific approach of the author concentrates on highlighting the main legal aspects specific to the analysed category of sales and their correct interpretation. Moreover, the paper supplements the scientific study of the varieties of the sale-purchase agreement, the range of which is practically infinite, given the principle of contractual freedom governing the civil circuit in our legal system. The author examines the legal norms in the current Civil Code that regulate the modalities that the sale-purchase agreement in question is subject to, the term and condition, as well as the means in which they influence the legal relationship existing based on the conclusion of such agreement, especially with regard to the rights and obligations of the contracting parties. The study also presents certain doctrinary points of view in this regard and is addressed equally to legal sciences theorists, researchers, professors, students, MA students and PhD students, as well as attorneys, who it provides with a few reference points that could arouse their interest for researching the subject and expanding the conclusions with regard to the fair application of the special norms in the examined field.
    Key words: modalities of the legal document; suspensive term; suspensive condition; resolutory condition
    JEL Classification:K12
    SALE SUBJECT TO MODALITIES
        Page 67
  • PhD. student Gabriel-Cristian CONSTANTINESCU
    Abstract:
    Changes in Romanian penal laws coming into force from 1st February 2014 brought an increasing number of offenses for which it is possible a penal mediation, including the offenses from the special laws (not included in the main Penal Code), for which the withdrawal of the advance complaint or the reconciliation of the parties removes the penal responsibility. These offences from the special laws are reviewed and detailed by the author with the mark of the removal mode of the penal responsibility, achieving a practical table for practitioners. Mediation procedure in the special laws crimes is similar into the general criminal mediation, but the application of the most favourable in time law may require special attention.
    Key words: penal mediation, special laws offences, mediation agreement, penal mediation procedure
    JEL Classification: J52, K14
    MEDIATION IN THE OFFENCES FROM THE SPECIAL LAWS
        Page 72
  • Assistant professor Luiza MIHAI
    Abstract:
    Given that any collective dismissal process must begin from a decision of the competent corporate body, the paper analyzes the reasons leading to the issuance of such a decision of reorganization, which is the justification for technical and economic viability of that decision and what It must include to be thorough and legal in the context of a possible legal claim before the courts. We studied the role of the efficient and complex analysis of the company in terms of organizational and / or economic reasons but also the impact that the change in the company's structure will have by reducing the positions for which the activity will be considered redundant through the same analysis. Research aimed the position and the implications such an economic analysis will have on the entire collective dismissal procedures, procedures that are very precisely controlled by state institutions empowered by the phases imposed by law but also in agreement with the employer`s social partner. In a state that encourages commercial freedom and the exclusive organizational privilege of the employer, may the court censor the effects of this procedure analyzing itself the opportunity of reducing positions targeted by the reorganization caused by economic reasons, or may issue considerations strictly in terms of reality and the seriousness of the causes that led to the adoption of such a decision of the employer?
    Key words: dismissal; collective; economic justification; legal
    JEL Classification: K31
    THE ROLE OF THE ECONOMIC JUSTIFICATION IN THE COLLECTIVE DISMISSAL PROCEDURE
        Page 82
  • Associate professor Beatrice ONICA – JARKA; Lawyer Tudor CONTAȘ
    Abstract:
    In Romania there are several traditional or new arbitral Courts that are willing to provide their services to legal entities in an international context and in a competent and efficient semblance. Two of these, the Arbitration Court of the Romanian-German Chamber of Industry and Commerce and Bucharest International Arbitration Court, adopted their Rules relatively recent and eluded from practitioners reviews. Therefore, the present article will analyze the Rules of the mentioned arbitral Courts by comparison with the ICC Rules, LCIA Rules and HKIAC Rules, starting from the most valuable characteristics of international arbitration, as determined in the 2015 International Arbitration Survey3, with the purpose of concluding if the new arbitral Courts of Romania are important competitors in the field and if their recommended arbitration agreement should be included in the commercial agreements.
    Key words: international arbitration, arbitration’s seat, arbitrators’ appointment, arbitration’s costs, arbitral institutions
    JEL Classification:K33, K49
    SHORT OVERVIEW OF INTERNATIONAL ARBITRATION RULING IN ROMANIA FROM THE PERSPECTIVE OF THE RULES OF NEWLY ESTABLISHED ARBITRATION FORUMS
        Page 88
  • Assistant professor Andreea Elena MATIC; Assistant professor Ştefania Cristina MIRICĂ
    Abstract:
    The present paper aims to analyze the manner in which the parental alienation syndrome (acknowledged as a form of severe psychological abuse against children by the Directive No. 2/2016 for recognition of parental alienation phenomenon) is identified, prevented and treated and by Romanian state authorities. The parental alienation syndrome emerged and started to spread in Romanian society due to the increasing rate of divorce and the larger number of single parent families. According to the definition found in the first article of the Directive no. 2/2016, this form of abuse consists of the "systematic denigration work of one parent by the other parent, with the intention of alienating the child from the other parent." In the article, we will analyze the legal and deontological duties of officials from the Child Welfare and Protection which operates locally and, also, how the civil courts exercise their active role in solving the cases in which is claimed the existence of this form of severe psychological abuse. We will also describe specific cases. From our point of view, the formal recognition of the parental alienation is a progress in the actual achievement of the welfare and best interests of children in Romanian society. This matter must be treated seriously as the emotional abuse committed against minors impede their harmonious and balanced development, with dramatic effects on medium and long term.
    Key words: parental alienation syndrome, deontological rules, ethical rules, judge, social assistant, child welfare
    JEL Classification:K36
    SPECIFIC DEONTOLOGICAL/ETHICAL REGULATIONS CONCERNING THE INVOLVEMENT, DUTIES AND THE ACTIVE ROLE OF CERTAIN CATEGORIES OF CIVIL SERVANTS REGARDING THE PROTECTION OF FAMILY RELATIONSHIP AGAINST PARENTAL ALIENATION SYNDROME
        Page 94
  • Professor Ileana CONSTANTINESCU; Lecturer Adriana MOȚATU
    Abstract:
    This study refers to a frequently used contract, namely the contract of caretaking, and presents the cancellation of this contract for the objective impossibility of out carrying it. Also, this case study highlights the legal issues that may occur in the situation of objective impossibility of execution of the caretaking obligation by the debtor – caretaker. In case of cancellation of such a contract there can be no discussion of succesors in rights from the debtor – caretaker because there is no mention about the continuity of the contract with the successors. Only from the creditor that was taken care of, there has been a will in favour of another person from outside the family, namely a third party.
    Key words: of caretaking, case study, succesors in rights, caretaking obligation, debtor caretaker, creditor, third party
    JEL Classification: K11, K12, K36
    LA CESSATION DU CONTRAT D’ENTRETIEN POUR L’IMPOSSIBILITÉ OBJECTIVE D’EXÉCUTION ÉTUDE DE CAS (TERMINATION OF THE CARETAKING CONTRACT FOR ENFORCEMENT OBJECTIVE IMPOSSIBILITY. CASE STUDY)
        Page 101
  • PhD. student Mihai Adrian DAMIAN
    Abstract:
    An important area to which the Law No 287/2009 brings significant modifications is represented by the means in which are approached to legal ways for protecting the natural person. By comparing the actual regulation with the one previous to the new Civil Code (Family Code – Law No 4/1953 repealed and Law No 272/2004 on the protection and promotion of the rights of the child) – Art 40 Para 1, Art 41-42, repealed) we notice that if most of the means for protecting the natural person are still the same – the tutelage, guardianship and the placement under interdiction –, the application of these measures has registered significant changes. The family council stated by the new Civil Code is totally different in its composition, role and situations for which is established, by the institution with the same name stated by the Law No 217/2003 for the prevention and combat of domestic violence, defined as being the “association without legal personality and patrimonial purpose, formed by the family members with full capacity of exercise”, for the prevention of the conflictual situations and the mitigation between the family members. From the content of the texts referring to the family council it results that it is a consultative organ (without legal personality), appointed by the family court, with the role of overseeing the means in which the guardian fulfils his rights regarding the minor’s person and assets.
    Key words: family council, child protection, guardianship, children’s rights, Civil Code
    JEL Classification: K36
    FAMILY COUNCIL AND THE TUTELAGE IN THE LIGHT OF THE NEW CIVIL CODE
        Page 104
  • Lawyer Eugen SÂRBU
    Abstract:
    No matter if we are discussing the case of a material, an intellectual work or of a provision of services, the contract for the execution of works is of the utmost importance in the economic dynamics, having a large object that includes basically any kind of service procurement or execution of works, which are not expressly regulated as being a different special type of contract. Considering the practical importance of this type of contract, we wanted to focus on an aspect which is essential, but sensitive at the same time- the subject of risks in the contracts for the execution of works. In order to incur the practical issues, we will draw our attention especially on those risks which may lead to the obstruction of works. After presenting the categories of identified risks, we will point out the party responsible for each of these risks and also the different types of liability that may be applicable. Lastly, in order to identify the most suitable solutions for practitioners, we will discuss those situations in which one of the parties of the contract for the execution of works intends to suspend or to terminate the contract and also the posibility of the parties to revise the price of the contract.
    Key words: contract for execution of works, allocation of risks, unforseen event, price revision, suspension and termination of contract.
    JEL Classification:K12
    THE RISK OF OCCURANCE OF AN UNFORSEEN EVENT WHILE PERFORMING A CONTRACT FOR EXECUTION OF WORKS     Page 111
  • Lecturer Monica GHEORGHE
    Abstract:
    This study aims to analyze the legal texts of the Labour Code which refers to the elements / clauses in individual employment contract and clarifying those that have been essential. Rules of the Labour Code which refer to the contents of the individual employment contract are not consistent. The texts of the Labour Code which refer to the essential and specific clauses in individual employment contract are art. 17 para. (1) - (3), art. 20 and art. 41-48. Also Order no. 64/2003 sets out the mandatory elements that must be included in the individual employment contract, showing that through negotiation between the parties, the contract may include specific clauses under the law. The analysis is done in the light of the provisions of art. 1179 and art. 1185 of the Civil Code, as in common law. At the end of the study, we conclude that certain provisions were essential character to the conclusion of any individual employment contract, others result of the negotiation, have essential character only to the contracting parties, while certain clauses are essential for certain types of individual employment contracts . Finally, it is assessed and the consequences of lack of essential clauses and establish its content contrary to legal norms.
    Key words: individual employment contract, clauses essential, clauses specific, items.
    JEL Classification:K12, K31
    ESSENTIAL CLAUSES OF INDIVIDUAL EMPLOYMENT CONTRACT - QUESTIONS AND ANSWERS
        Page 119
  • Lecturer Simona CHIRICĂ
    Abstract:
    Constantly increasing interest rates along with the recent economic downturn represent real challenges not only for the tenants but also for the landlords. Usually, the economical blockage is reflected on the business performance of the landlord of commercial premises whose tenants, succumbing to the pressure of creditors and the repercussions of excessive pecuniary obligations intend to file for a reorganization plan.
    Key words: insolvency, lease agreements, the principle of maximization debtor, the insolvent tenant
    JEL Classification:K12, K22
    TENANT'S INSOLVENCY IN LEASE AGREEMENTS
        Page 125
  • PhD. Student Oana-Nicoleta RETEA
    Abstract:
    The name is important both to the individual and to the society. Therefore, it is important to understand its role in both shaping the private sense of self and identity and in reflecting and sustaining the social institutions such as the state, family. The aim of this article is to contribute to the better understanding of the scope of Article 8 from the European Convention of Human Rights in what concerns the right to bear a name. The great variety of issues that have been covered by this article has generated a huge literature in which Article 8 was treated as one of the most open-ended provisions of the ECHR. In this context, it was underlined the inclusion of the right to name into the domain of this article, while tracing the connotation given by the Court in the attempt to establish an infringement of the right to privacy and family. Moreover, the case law presented reveals that there are fluctuations in the approach of the Court, showing also the cases in which it was not found a violation of Article 8. However, the infringement of one's right to name could reveal different ways of intrusion in the private life or family life, but in any situation, it is engaged liability for the damage caused.
    Key words: right to name, article 8 from the European Convention of Human Rights, private life, family life, caselaw
    JEL Classification:K36
    INFRINGEMENT IN ONE’S RIGHT TO NAME, INTRUSION IN PRIVATE LIFE OR FAMILY LIFE? THE EUROPEAN COURT OF HUMAN RIGHTS PERSPECTIVE
        Page 133
  • Assistant professor Radu Ştefan PĂTRU
    Abstract:
    In this study we analyze the provisions of the collective labor agreement concluded in the sphere of machine building companies and metal production for the years 2016-2017.The analysis will reveal useful aspects that complement labor laws and also the offending clauses in the field of labor legislation. Study findings lead to the formulation of proposals with the purpose to improve collective bargaining in terms of reporting of the collective labor agreements to the provisions of the law.
    Key words:collective bargaining agreement, group of units, relations between collective bargaining agreement and law
    JEL Classification:K12, K31
    CRITICAL REMARKS ON THE COLLECTIVE LABOR AGREEMENT IN THE SPHERE OF MACHINE BUILDING COMPANIES AND METAL PRODUCTION FOR THE YEARS 2016-2017
        Page 142
  • PhD. Eng. Raul Sorin FÂNTÂNĂ
    Abstract:
    The growing number of complex processes with the specific intellectual / industrial property demonstrated the need for highly qualified experts called in solving technical problems in the court files. The expertise in such field obliges to detailed knowledge of domestic and international law. However, those processes have as conjugate subjects: counterfeiting inventions, trademarks, industrial design; unfair competition; calculating damage that leads to highlighting the economic benefits, the latter requiring economic assessment of an intangible asset using in formula, in addition to economic data, micro - and macro-economic risk factors. Conflicts arise in a specific space. It is therefore necessary detailed knowledge of company law, competition law, that relating to interest, insolvency and bankruptcy in their developments. It should be considered domestic and European legal practice, as well as the rapid evolution of the meaning of legal terms and concepts. Experts have to understand solutions given in the prior complaints for correct interpretation of the provisions of the agreements, laws and regulations derived. The paper refers to one of the most complex expertise reports, which forced expert to integrated legislation acquaintances on patents, on insolvency and interest - in their evolution. But fundamentally, the expert had to understand the phenomenon of engineering and how to measure economic efficiency in the case of a divided invention.
    Key words: law and economics, intellectual property, jurisprudence, business economics, intellectual capital.
    JEL Classification:K30, K39, K40, M20, O34
    DIMENSIONS OF EXPERT REPORT COMPLEXITY IN INTELLECTUAL/INDUSTRIAL PROPERTY. CASE STUDY
        Page 147
  • PhD. student Cătălin Cristian SELIŞTEANU
    Abstract:
    The Romanian Civil Code regulates, in the IXth Title (Various special contracts) of Book V (About obligations), a wealth of contracts, in a greater number than the old civil legislator (sale and purchase, exchange, lease, society, transport, warehouse, insurance, loan etc.), but the subject of this article makes me move towards the assurance contract. The insurance activity materializes as a contract by which, according to the Romanian Civil Code, the policyholder or the insured is obliged to pay a premium to the insurer, and the latter undertakes, if the insured case occurs, to pay an allowance, where necessary, to the insured, the insurance beneficiary or the injured third party. The insurance contract is commonly used in business because operators are subject to numerous risks and, for the safety and future of their business, for this activity to have as much life span as possible, they must ensure all goods and persons representing "the engine" of their business, as well as the licit/illicit unexpected events. The insurance area is a business, and more than that: it can support a business.
    Key words: insurance contract, business, market economy, commerce, trader
    JEL Classification:K12, K2
    THE INSURANCE CONTRACT - A SUPPORT IN THE BUSINESS SPHERE
        Page 161
  • Professor Silvia Lucia CRISTEA
    Abstract:
    This paper aims to put forward the views of students who take part in learning processes in order to understand the perceived challenges and use that information to improve the quality of the Business Law module to be developed. The mechanism of legal education in English will be then discussed, with particular reference to this process as it unfolds in the Bucharest University of Economic Studies. This action research–based study will highlight the importance of teachers’ self-perception adjusted to new approaches. What is more, initiating change in the teaching-learning context these academics operate in might be a justified conclusion and the main arguments to support or dismiss it will be presented.
    Key words: teaching law, evaluation, student’s level of understanding legal concepts, teachers’ self-perception
    JEL Classification:K22
    BUSINESS LAW MODULE – HOW TO IMPROVE MY TEACHING STYLE? UNDERGRADUATE AND GRADUATE STUDENT’S TESTS EVALUATION
        Page 170
  • PhD. student Victor BIRCA
    Abstract:
    This study proposes its principal objective the analysis of the company contract, one of the most updated and used in the present, both regulated by the Civil Code and the Law no.31 / 1990. The general conditions of validity and the specific elements of the contract are presented and analyzed as well as the effects and changes made to the contract and the legal consequences concerning the constitution of the society. The desire to reform the Civil Code is not enough, a unitary conception of matter has to be promoted in the sphere of civil law, to avoid a chain reaction that will include amendments to other laws in force and to determine the development of others. The present study provides an overview of trying to create a new perspective and a more complete analysis.
    Key words: limited liability company, company contract, associate, Civil Code
    JEL Classification:K12, K22
    THE COMPANY CONTRACT IN THE NEW ROMANIAN CIVIL CODE, REPORTING TO THE SPECIAL PROVISIONS OF LAW NO. 31/1990
        Page 180
  • PhD student Viorel BĂNULESCU
    Abstract:
    Fusion, a complex operation, determines the reorganisation of the companies involved, so as, in addition to the associates, administrators or the employees, the third parties, as social creditors of the companies concerned, can be prejudiced .Through this article, we intend to analyse the means of protection provided by the national and European legislation, to identify the vulnerable aspects, and to submit solutions for the insurance of a real and adequate protection for the creditors of the companies involved in the fusion operation
    Key words: fusion, action in opposition, creditor, debt right, constitutive act, employee, nullity suit
    JEL Classification:K20, K22
    THE PROTECTION OF CREDITORS IN CASE OF THE FUSION OF COMPANIES-ASPECTS OF COMPARATIVE LAW
        Page 188
  • Assistant professor Bogdan BÎRZU
    Abstract:
    In this study we have examined (sometimes critically) the provisions of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of Passenger Name Record (PNR) data for the prevention, detection, investigation and prosecution terrorist offenses and serious crimes. Representing an absolute novelty in EU legislation, the European legislative act is examined from the perspective of transposing it into the Romanian law. The innovations that are brought to this study are the examination itself and the de lege ferenda proposals which can be useful to the European legislator, but mostly to the Romanian legislator in the transposition of this legislative act into the Romanian law. The paper can be useful to academics and practitioners in the field of preventing and fighting terrorist offenses and serious crimes.
    Key words: Passenger Information Unit; Europol; air carriers; data transfer; data protection
    JEL Classification:K14; K33
    PREVENTION, DETECTION, INVESTIGATION AND PROSECUTION OF TERRORIST OFFENSES AND OTHER SERIOUS CRIMES BY USING PASSENGER NAME RECORD (PNR) DATA. CRITICAL OPINIONS. DE LEGE FERENDA PROPOSALS
        Page 195
  • Lecturer Marieta SAFTA
    Abstract:
    The Judges’ possibility to submit dissenting / concurring opinions is disputed as arguments are brought both for and against it in the context of the obligation to ensure the secrecy of deliberations. This study, bringing landmarks of the European Constitutional Courts’ legislation and case-law on the subject, demonstrates the role of the dissenting and concurring opinions in the development of the law, emphasizing the idea of balance for their formulation and grounds.
    Key words: dissenting opinions, concurring opinions, constitutional review, independence of judge
    JEL Classification:K10, K41
    THE ROLE OF DISSENTING AND CONCURRING OPINIONS IN THE CONSTITUTIONAL JURISDICTION
        Page 207
  • Assistant professor Ioana-Minodora RUSU
    Abstract:
    The objective of this study is to examine the provisions of Directive 2011/99 / EU concerning the procedure for issuing and transmission of a European protection order. The examination highlights the need for a previously ordered protection measure, under which it may issue a European protection order at the request of the person seeking protection. Along with the conducted examination there were identified also depositions that may cause some malfunctions into practice, which is why there were formulated some de lege ferenda proposals, which may be considered by the European legislator. We highlight here the proposal that regards the need, within the procedure for issuing a European protection order, to ensure the right to defense to the protected person and to the person representing a danger. The paper can be useful to both academics and practitioners and also to the European legislator, in terms of operating the necessary changes.
    Key words: protected person; person representing a danger; protection measures; the issuing State.
    JEL Classification:K14; K33
    ISSUANCE AND TRANSMISSION OF THE EUROPEAN PROTECTION ORDER IN THE EUROPEAN UNION. CRITICAL OPINIONS. DE LEGE FERENDA PROPOSALS
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  • Associate professor Bazil OGLINDĂ
    Abstract:
    The trusts have been frequently used in the countries which function under the Anglo-Saxon law system, but it most certainly represents an innovation in the new Romanian legislation. For this reason, in this paper, we tried to highlight the main differences between the trust regulated in the Romanian Civil code and its corespondent in other legal systems. Observing that the trust in an institution that is mainly theoretical, and the reluctance of practicioners in using it, we tried to analyze the trust, regarding its practical side. In this paper, we will take into consideration the following aspects: the rights that the trustee acquires after establishing the trust, that will be explained through the new regulations regarding the division of assets, the quality of the parties and the limits in which the trustee may be held liable. Other important aspects are: the means that the new regulations provide in order to protect the interests of the creditors and at the same time, the fiduciary assets; the formalities which the law requires and the means of termination of the contract. In the end, in order to identify alternative solutions, we will compare the trust (regulated in the Civil code) with the management of assets that belong to a third party.
    Key words: fiducia, fiduciary mass of assets, settlor, trustee, beneficiary
    JEL Classification:K11, K12
    PRACTICAL ASPECTS REGARDING FIDUCIARY OPERATIONS
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  • Lecturer Ana VIDAT
    Abstract:
    It is inconceivable By O.U.G. no. 60/2016 were brought new changes and additions to Law no. 76/2002 on the unemployment insurance system and stimulation of employment due to: labor shortages in certain regions claimed by business representatives; European climate of uncertainty marked by the possible exit of the United Kingdom of Great Britain and Northern Ireland in the European Union, and the high probability of returning to Romania for workers who have exercised their right to free movement within the European Union; avoidance of loss absorption external grants for this year.
    Key words: individual employment contract; mobility; stimulate employment; unemployed; first of employment; first installation.
    JEL Classification:K31
    NEW ISSUES STATUTORY UNEMPLOYMENT INSURANCE SYSTEM AND STIMULATE EMPLOYMENT (FROM THE PERSPECTIVE OF THE LABOUR LAW)
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  • Professor Veronica STOICA
    Abstract:
    This study addresses the issue of termination of insurance contracts by unilateral denunciation in accordance with Article 2209 of the Civil Code. Distinguishing features of this unusual or specific type of insurance contract are highlighted, together with its differences from the unilateral denunciation of the contract provided in the common law. Simultaneously, we aim at analyzing the prerequisites for making unilateral denunciation of an insurance contract, the legal effect of the denunciation throughout the notice period, as well as the effects of the insurance contract termination as a result of its denunciation.
    Key words: insurance contract, denunciation, notification, effects.
    JEL Classification:K12
    CONSIDERATIONS SUR LA CESSATION DU CONTRAT D'ASSURANCE PAR DENONCIATION (CONSIDERATIONS ON THE TERMINATION OF THE INSURANCE CONTRACT BY DENUNCIATION)
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