Perspectives of Business Law Journal
- Bucharest Academy of Economic Studies
- Publication date:
- Privacy protection and e-document management in public administration
The paper reviews and critically examines sharing e-document-based information between public administration and private sector. The documents are not only generated and archived, but also shared among public administrators. The private sector supports digitisation and computerization of public administration. The protection of privacy of persons and confidential information, especially economic about legal entities, together with the necessity of circulation of information within the national state and cross-border, bring new legal and technical challenges. The paper examines legal issues of the right of informational self-determination, privacy protection of the e-data information exchange between the public and private sector. The paper concludes that new relations to technologies form an inevitable and fundamental sign of a post-industrial society, but the professionalism of the public administration together with the duty of confidentiality and the right for privacy together with appropriate legal regulation should guarantee that technologies be used solely for legal interference with the right for informational self-determination. Keywords: public administration; private sector; informational self-determination; privacy protection; e-data exchange; paper document digitisation
- Considerations regarding the characteristic features of potestative rights under the Romanian civil law
Potestative rights are still representing an exotic category of subjective civil rights. We are saying that it represents an exotic category because, although in practice they are frequently encountered, the theoretical approaches regarding their general legal regime are extremely limited. Therefore, in the present study we will focus on identifying the characteristic features of potestative rights, as well as highlighting the similarities and differences between these rights and other categories of civil subjective rights. From this point of view, we will focus on the similarities and differences between potestive rights and debt and in rem rights, concluding that potestative rights are a category of intermediate rights, as it lends specific features from both, debt and rights in rem. Also, starting from the potestative rights definition provided by the schoolars, we will analyze, one at a time, their defining elements and explain how these characteristic elements should be understood. Therefore, we will focus on the defining elements of potestative rights, namely: (i) the power of the potentior to change a legal situation involving the interests of another person; (ii) the bond of obedience; and (iii) the specific object. Keywords: civil subjective right, potestative right, judicial power, judicial situation
- Regulation regarding the reception of the construction works and the corresponding installations in Romania
The new Regulation regarding the reception of construction works and corresponding installations, approved by Government's Decision no. 347/2017 (“Regulation 2017”) has general applicability for all construction works for which there is an obligation to obtain a building permit. Regulation 2017 brings significant changes and clarifications expected by the real estate sector regarding: (i) the composition of the commissions involved in the reception procedure, (ii) the role of the site supervisor who thus gains significant participation in the reception procedure, and (iii) the participation of the public authorities' representatives at the reception, having the veto right on the decision of the reception commission upon the completion of the construction works. Another element of novelty brought by Regulation 2017 is the possibility to do the reception upon the completion of the construction works, respectively the final reception for parts / objectives / sectors of or from the building, if they are distinct/ independent from a physical and functional point of view. Thus, the new regulation facilitates the procedure of authorizing investment objectives and the costs of the process. The partial reception is another innovation brought by the Regulation 2017 in support of the investor, who can thus take over a part of the construction, at a certain stage, and obtain its registration with the Land Book. Keywords: construction law, construction works, construction quality, authorisation of construction
- Theoretical and practical aspects regarding the matrimonial convention between spouses
By way of the present study, the authors have proposed to analyze the matrimonial convention between spouses, both from the perspective of theoretical considerations, as well as from the point of view of the notary practice. The writing pursues to display the organizational possibilities of the pecuniary aspects of marriage in the current economic context, grafted by the variety of marital situations. The study identifies the elements which can influence spouses’ preference towards a certain matrimonial regime, and highlights the role of the public notary in the arrangement of the chosen matrimonial regime. The piece of work emphasizes the particularities of national law in the matter of matrimonial convention, in the light of the pithy French influence, and presents the advanced solutions in the French doctrine that can superpose the theoretical disputes born in the Romanian doctrine. The authors have recourse to use the systemic method through which it was intended to analyze the institution of the matrimonial convention by reference to practical solutions (empirical observations) adopted by the public notary at the instrumentation of a matrimonial convention. Our concise presentation may constitute a starting point for the future spouses/spouses looking forward to adopt a matrimonial technique, transposed into the pattern of matrimonial convention, to reflect as faithfully as possible the patrimonial relations between spouses, and also between them and third parties. Keywords: spouses, the choice of matrimonial regime, the authentication of the matrimonial convention, the precipice clause
- Implication of the offense of deception, false and use of false in the civil trial
The objectives of our study consist in showing that the offense of deception in witness testimony during the civil trial by attribution of lying qualities in order to impress the court, grafted on false and use of false used by the one giving the witness testimony in the civil trial, false introduced and used by this one on the date of the criminal case trial which the defendant in the civil trial on moral damages invokes, considering that such defendant was a defendant in a criminal trial where he/she won with the witness proposed thereby in the civil moral damages trial, may lead to an erroneous solution in the civil case, in case the defendant in the civil trial fails to timely notice such things or the courts fail to corroborate the defendant’s evidence in the civil trial. The research methods consist in analysis of several court orders. The results of the study lead to the idea that criminal claims addressed in reference to certain offenses claimed during the civil trial should be settled under emergency regime, as the implications of certain offenses, like deception in witness testimony, instigation to deception, false and use of false, on one hand, and failure to corroborate the defendant’s evidence in a moral damages trial, for instance, on the other hand, may have serious repercussions on the defendant. Keywords: witness testimony, lying qualities, false, use of false, appeal in annulment, false registration
- Know-how provider's right to claim damages for non-pecuniary loss in light of the legal nature of know-how
The know-how contract is one of the most important means for transferring and developing technology. It is crucial to find out whether the parties of know-how contract have a right to claim damages for non-pecuniary loss in light of the legal nature of knowhow. In this article, I begin by defining the know-how contracts and in particular I will analyze the main obligations of the parties. Secondly, I will deal with the definition and the legal nature of know-how, since considerable uncertainty exists as to the degree or type of protection regarding the legal nature of know-how. There are different opinions put forward, which defines the legal nature of know-how as a property, an intangible asset, a monopoly of fact and a personality right. Finally, and on the basis of the conclusion reached under the previous section, I will discuss whether it is possible for know-how provider to claim damages for non-pecuniary loss. Keywords: know-how, legal nature of know-how, right to claim damages for nonpecuniary loss in know-how contracts, the parties obligations arising from know-how contracts
- Considerations on nullity in case of companies under Romanian law
The company acquires legal personality after a series of formalities required by law are fulfilled, formalities that concern the constituent acts on which it is based. For this reason, it is very important to know the legal status of the company's constitutive acts and the consequences of their irregularities. Hence, both the essential conditions and the form of the company’s constitutive acts are analyzed based on the legal provisions. It is also necessary to distinguish between the nullity resulting from the unlawful drafting of these constitutive acts and the nullity of society as such. Therefore, this paper is focused on these differences, as well as on certain practical issues about nullity starting from a recent court decision handed down by the Romanian Supreme Court. Keywords: Romanian law, company, companies’ law, nullity
- Legal subordination ? criterion applicable to the recurrence of legal nature of the contract (as individual labor)
The International Labor Organization adopted, in 2006, Recommendation no. 198, synthetically describing the features of a working relationship. Thus, work done in a labor relationship must meet certain requirements, namely: to be performed according to instructions and under the control of another person; to involve the integrator of the organization in the organization of an enterprise; be executed exclusively or principally for the account of another person; be personally fulfilled by the worker; to be carried out in accordance with a determined timetable and at a specific place or accepted by the beneficiary of the work; have a given (predetermined) duration and show some continuity; to assume that the worker is at the disposal of the other person; to involve the beneficiary in the provision of equipment, materials, energy, as the case may be. In its turn, the High Court of Cassation and Justice stated in Decision no. 574/2011 that – in order to qualify a contract as a work – there must be three elements, namely: performance of the work as the primary purpose of the contract; remuneration of the work done; the existence of a subordination report. In the absence of the subordination report, the contractual relations agreed by the parties are not objectively reflected in an employment relationship, but remain only in the sphere of civil law. Keywords: individual employment contract; legal subordination; the power to control; the power to issue legal orders; the power to sanction
- The new Romanian regulation of undeclared labour
The “black” labour is an indicator of how efficient is the enforcement of the labour law. Irrespective of how progressive may the labour law system be in a society, the proliferation of work without employment contracts expresses the failure of the labour law system in the real market. In Romania, Labour Code has been dramatically changed in the summer of 2017, especially with the declared goal to better organize the fight against the undeclared work. This paper is an analysis of the impact of these changes in an attempt to highlight the consequences of the new regulation, which seems to be fighting undeclared work predominantly by punitive tools. Following a general approach to the vulnerability of the worker without an employment contract, as well as some of the reasons for such choice, the analysis starts from the identification of the practical difficulties raised by the new regulation. On the other hand, the paper highlights the benefits of returning to the consensual nature of the employment contract, as well as the disadvantages of the excessive widening of the definition of the concept of undeclared work. Keywords: labour law, undeclared labour, Romanian Labour Code, labour inspection
- The fundamental freedoms of the single market on the path towards horizontal direct effect: the free movement of capital ? lex lata and lex ferenda
The paper examines both likeliness and expediency of establishing horizontal direct effect of the TFEU provisions inaugurating the free movement of capital as the “youngest” of the four fundamental freedoms in the Single Market. In pursuing this aim, author starts with portraying the status quo regarding horizontal direct effect of other fundamental freedoms and attempts to deduce from some of the cornerstone cases the most important arguments given by the CJEU, i.e. key rationale utilized thus far for establishing horizontal direct effect. After these general analyses, the author examines the current scope of application of the free movement of capital provisions in view of the issue at hand and investigates whether in conjunction with the reasoning of the CJEU in other free movement cases similar approach is likely to be utilized in order to establish the same effect of Article 63 TFEU. Finally, notwithstanding certain opposite opinions, the author establishes that this particular fundamental freedom becoming horizontally effective is not something likely to happen any time soon and makes an effort to support such standpoint. Moreover, conclusion is put forward that even if it opts for such course of action the CJEU should take certain preliminary, i.e. precautionary measures. Keywords: fundamental freedoms; free movement of capital; horizontal direct effect; effet utile; public entities; private entities
- Jurisprudential aspects regarding the action in annulment of the debtor's patrimonial transfers, the debtor being in insolvency procedure
The study aims to present relevant aspects from the jurisprudential solutions of the High Court of Cassation and Justice in matters of the action in annulment of the patrimonial transfers of the debtor in insolvency procedure and of other judicial actions introduced by the procedure bodies or, by...
- The balance between the parties in Law N° 2015/018 of December 21, 2015 governing the commercial activity in Cameroon
On the 21st of December 2015, the Cameroonian legislature adopted Law N° 2015/018 with the aim of modernizing the mechanisms put in place for the supervision of the commercial activity in this State. This modernization results in the establishment of tools aimed at eliminating situations which are...
- Privatization in the name of public private partnership: the case of Tanzania Breweries Ltd., an evaluation
The policies of International Monetary Fund (IMF) and the World Bank (WB) have made significant impact in most developing countries, particularly in South of the Sahara. Foreign direct investment (FDI) is one of the policies spearheaded by these institutions. Countries like Tanzania, Uganda and...
- Business and human rights: from soft law to hard law?
Over the last decades the international community turned its attention towards the impact that businesses have on human rights, and the role they can play in furt hering human rights protection, in light of the lead role they play in globalization, and the increasingly vocal allegations of human...
- Analysis of the Portuguese legal framework concerning the safeguarding of employees' rights in the event of the transfer of an undertaking or an establishment compliance with the directive 2001/23/CE of 12 march 2001
The undertaking, business, or part of an undertaking or business can be transferred to another person or corporation as a result of a merger or a legal transfer, transitory or definitive. As a consequence of the transfer, there is subrogation ex lege of the transferee in the rights and obligations...
- The theory of imprevision in the context of the economic crisis and the new romanian civil code (NCC)
This paper addresses one of the most pressing issues of private law, namely, the theory of unpredictability. The theory of imprevision is a question of law under the effects of the current economic crisis has resulted in contract law. Also, updating legal issues raised by the theory of...
- The fiduciary guarantee1 in the Romanian and European legal context
The importance of the fiduciary guarantee has not reached its full potential in the Romanian market, nor in the European area. The ongoing “dispute” between the fiduciary operations (familiar to the continental law) and the trust (with its common -law heritage) seems to be won by the latter....
- Land lease contract and prior right of lessee to concluding the new land lease contract - case of Slovakia
Land lease is one of the few possible ways to use the agricultural land effectively. This is caused by problems in the proprietary and user relationships, therefore the agricultural land lease and its legal regulation is especially important for Slovakia. This paper deals with the selected legal...
- Lesapouvoirsa d'officeadua jugeadesaprocéduresa collectivesa de l'Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) et les principes cardinaux du procès
The law of collective proceedings for clearing off depts which replaces the former bankruptcy law pursues an economic objective the reason why it carries certain exceptions to the common procedure law. As such, the judge of collective proceedings has powers of initiative in the institution and...
- The strategic importance of international investments in the field of mining and international law
Worldwide, the entrance restrictions for foreign investment were eliminated or restricted in a wide range of industries, especially mining (among other fields such as aviation, financial services, real estate). Foreign investors still remain reluctant to placement of investments in developing...