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
- 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
- The parties of fiduciary contract
The parties of the fiduciary contract in general, and the fiduciary in particular represent the “engine” that moves the gear of this innovative institution. This study is dedicated to the analysis of the most important aspects regarding the parties of fiduciary contract as they are briefly regulated by civil Code, both by reference to current national regulation and practice and by reference to international law and practice. On one hand, it is relevant that there are some restrictions imposed by the legislator on the fiduciary capacity and, on the other hand, there is a partial lack of correlation between the current legislation regulating the activity of the qualified subjects of the potential fiduciaries with the provisions of civil Code. At the same time, very useful regulations have been issued for some of the fiduciary categories (investment companies and lawyers) that facilitate their access to this institution and the use of fiduciary agreements in practice. However, in general, the lack of clarity and insufficient legislation, as well as unawareness by some potential beneficiaries of this institution, keeps the utilization of fiduciary contracts at a low level in practice. Keywords: the parties of the fiduciary contract, settlor, fiduciary, beneficiary of the fiduciary contract, fiduciary-lawyer, Romanian civil Code
- Legal liability through the prism of the new conceptual mutations
The concept of legal liability is traditionally approached, first in the General Theory of Law, then in each branch legal discipline. From this perspective the role of this fundamental concept of law is emphasized, the legal liability is defined and classified in its main forms (disciplinary, civil, administrative, criminal), the conditions for engaging in any form of legal liability are highlighted. The present study does not aim to analyze what is known, which is not lacking in any academic course of law theory, which has been the subject of numerous writings in the field, including within national doctoral research and not only. Through this study, we aim to highlight the fact that at present there are serious reasons to believe that, compared to the traditional coordinates of the legal liability analysis, we are in the presence of changes, conceptual mutations that play a role within it as a reflection of either the phenomenon well known as legal inflation, or the need to adopt the norms of the right to new social coordinates, to the mutations that take place - thanks to the celerity with which social relations unfold - in social life. In other words, in addition to the branches of law that conventionally analyze the concept of legal liability, it is necessary to emphasize also the appearance of other branches with their specificity, including from the point of view of the legal liability that is committed. We come up with these considerations to analyze a new concept, legal parthenogenesis, a consequence and effect of these social mutations on forms of legal liability. Therefore, the present study has as a major objective the disclosure of other forms of legal liability alongside those already known. The research methods used are the epistemological, historical, comparative, and teleological methods. The results of the study can be used in the new doctrinal approaches in the field, within the three levels of higher education: BA, MA, and PhD. Keywords: law, concept, conceptual mutations, legal liability, responsibility,legal parthenogenesis
- 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
- 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
- Special considerations regarding indirect expropriation in international economic law
The right to property is a human right that has to be respected so that if the property of a natural or legal person is taken over, the respective person has to be compensated. The right of a state to control the economic business is one of the rights sustained and exercised by the states on a constant basis. This reflects the inherent sovereignty of a state to control its people, incidents and objects found on its territory. Between these rights, the situation of indirect expropriation appears which has been described in the doctrine as being very abstract and rigid, big lacunae existing. The sense of the indirect expropriation and of the international investors’ protection against the indirect expropriation is very ambiguous. Using different methods specific to scientific analyse of the legal phenomenon (e.g. the logical method, the comparative method, the historical method and the quantitative methods), we consider that through this paper we can reach certain results that could be interesting for any legal practitioner or theoretician, this paper intending to present the most relevant cases that could amount to indirect expropriation. Keywords: indirect expropriation, host state, foreign investor, investments
- 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
- 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
- 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
- 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,...
- Iceland, the EFTA Court and the indexation of credit to inflation: operating in nature ex-post but need to calculate and disclose ex-ante. A law of contradiction?
Indexation of credit to inflation (ex-post) is a unique legal practice in Iceland based on valorism theory on money vs. nominalism. Two rulings issued in 2014 by the EFTA Court try to clarify the legality and fairness of this particular price-variation clause under the European Economic Area...
- Romanian procedural and administrative particularities of the sale of lands to foreign persons
This study aims to examine the particularities of the procedures and legal instruments through which foreign persons, in the broadest sense of this term,3 may acquire, especially through sale-purchase contracts, agricultural lands situated outside of the built-up area, after Romania joined the...
- 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...
- 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 prohibition of competition in employment relationship in Cameroon
The study aims to analyze one of the apparent inconsistencies that are found in the employment law in Cameroon. The right of free competition is tantamount to a free market society especially in the era of globalization. It appears prima faciae that in Cameroon the lawmaker has limited this right...
- Developments in the constitutional review. Constitutional court between the status of negative legislator and the status of positive co-legislator
The study wants to emphasize that Constitutional Courts belonging to the European model depart from their traditional role as ”negative legislator” – which refers to the effect of their acts consisting in removal from the legal system of those rules contrary to the Basic Law -, becoming, to a...
- Land associations in Slovakia
The land fragmentation is one of the serious problems in Slovakia which is given by the historical development of the land law. In the past, landowners tried to solve this problem by creation of various forms of land associations oriented to the common cultivation of agricultural land and forest...
- 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...
- 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...