Perspectives of Business Law Journal
- Bucharest Academy of Economic Studies
- Publication date:
- Some considerations on the general partnership
The general partnership is the prototype of company of persons, since it is set up and functions based on the personal qualities of the associates, who know each other and trust each other, reason for which they agree to be unlimitedly and jointly bound for the obligations of the company they set up. Although this legal form of company is not very widespread in practice, which is undoubtedly explained by the risk determined by the unlimited and joint liability of the associates, the general partnership still presents some unquestionable advantages, worth to be emphasized, starting from the simplicity of the rules concerning its setting up and functioning, or the possibility of its creation even in the absence of initial contributions of significant value. Moreover, the continuity of the associates' options for this legal form of company demonstrates that it is not totally obsolete and lacking in practical interest, but it has successfully survived the passage of time, also considering the fact that its legal regulation has not changed significantly over the years. 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. Keywords: general partnership, specific aspects, companies of persons, unlimited and joint liability
- Theoretical and practical references regarding the applicability of the employer's obligation to inform the employee
The obligation to inform the employee is one of the most important obligations of employers in labor relations. Regulated by art. 17-19 of The Labor Code, the employee's obligation to inform the employee is the subject of controversy in doctrine and practice. In this study we will analyze the applicability of the information obligation and make proposals for lege ferenda on the basis of the arguments presented. Keywords: employer's obligation to inform the employee, Labor Code, de lege ferenda proposals
- 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
- 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 principles governing the personal status of foreigners residing in Iran from the perspective of law
Affair problems with foreigners in the country, according to the authors own survey shows a lack of consistent practice Court with the author's comments, as well as global developments in this area, to examine the issue from a theoretical and practical layout and helpful as well. In this article,...
- The conception of civil procedure in the Slovak Republic
This contribution offers a comprehensive analysis of the conception of civil procedure, all the way from the term itself through historical determinants, individual approaches and civil procedure in Europe up to the present. It discusses the need for the unified conception of civil procedure...
- Aspects of the application of issue Estoppel on directors' fiduciary duties in South Africa: possible lessons from the United Kingdom and related jurisdictions Royal Sechaba case
The doctrine of estoppel precludes a person (asserter) from asserting something different or contrary to what is implied by a previous action, conduct or statement of that person or by a previous pertinent judicial determination. While there are various types of estoppel, this article is primarily...
- 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...
- Corporate governance in state-owned companies in Hungary
At the development and to the comprehension of the regulation it is necessary to ascertain that in our view, the subject of the regulation is the operation of the company. The regulation regulates the problems arising specifically during the course of the operation of the company, as an „ex ante”...
- 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 Energy Charter Treaty and settlement of disputes - current challenges
The Energy Charter Treaty (the “ECT”) is a multilateral agreement aiming to promote energy cooperation and security. This paper focuses on the provisions of the ECT governing the protection of foreign investments and the settlement of disputes between investors and host states. In particular, this...