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Stock Companies in Kosovo

Author(s): Majlinda Belegu,Bashkim Rrahmani / Language(s): English Issue: 1/2019

Law on Business Organizations recognizes the stock companies as the type of business society. The paper will use methods of analysis, method of comparison, method of systemic analysis, etc. In addition to these methods author will use the combined methodology in order to reach the main goal of the paper. If the stock companies belong to business societies, the after their registration what is their legal arrangement? According to the Law on Business Organizations, the stock companies could have only one shareholder and many or a lot of them. Each shareholder has its shares which is the property of the shareholder. Shares could be transferred from a shareholder to other judicial/physic persons. The founding capital of stock companies is determined by the law. This society is judicial person which is responsible for all its obligations and for these obligations it is responsible with its assets and its property. Personal property of shareholders doesn’t contain the property of shareholders companies. Shareholder is responsible for society with its wealth only if shareholder abuses with the shareholder company. Paper analyzes competences in the society and the duration of foundation, then statute, memorandum an regulations of the society are analyzed is analyzed. Author with the paper covers and analyzes the founding capital and the organs of the stock companies, always determined by the law. Paper also explains the ways of the dissolution of the stock companies.

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Monetary Penalty as a Penal Sanction in the Territory of the Basic Court of Prishtina in the Period 2011-2015

Author(s): Kosovare Sopi / Language(s): English Issue: 1/2019

This thesis will tackle the fine penalties according to the Criminal Code of the Republic of Kosovo, with particular emphasis on the Basic Court of Prishtina during the period 2011/2015, which will talk about the statistics provided by the Court as well as elaboration of the fine penalties including its issuance as well. The thesis will address the monetary penalties, its meaning and monetary penatlies in some countries of the region and beyond. The thesis will be based mainly on the research and analysis of the Criminal Code of the Republic of Kosovo as well as the Criminal Codes of the countries of the region that have been analyzed in this working document, without circumventing the Criminal Codes of some more developed countries. In addition, during the analysis, various scientific methods will be utilized, such as descriptive, comparative and various statistical methods, in order to address the issue of monetary penalties in more comprehensive manner. Likewise, in the last chapter we have presented many diverse tables, with the sole purpose of reflecting the chronology of issued monetary penalties throughout analyzed years.

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Forţa majoră şi executarea contractelor de comerţ internaţional

Author(s): Carmen Tamara Ungureanu / Language(s): Romanian Issue: 1/2020

Abstract: When a case of force majeure occurs, such as the coronavirus pandemic, and one of the parties to an international commercial contract is unable to fulfill its obligations, what is the way forward? What are the effects of the force majeure event on the performance of the contracts, during its duration and after its termination? In trying to answer these questions, we will first explain what force majeure means and how it is regulated in international conventions, soft law and national laws (1). We will then analyze the effects of force majeure on international commercial contracts in two distinct situations, namely, when there is a force majeure clause into the contract and, respectively, when the international commercial contract does not contain such a clause (2). Two temporal stages will be considered, during the deployment of the force majeure case and after its cessation, taking Romania as a reference system.

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Observaţii cu privire la efectele tratamentului diferenţiat al protecţiei creditorilor în ipoteze particulare de divizare a societăţilor

Author(s): Teodora-Alexandra Oprea / Language(s): Romanian Issue: 1/2020

This paper explores the efficiency of the means of protection of the interests of creditors in the event of the division of the debtor company in the framework of the protection system generated by the provisions of Articles 2411, 243 and 251 of Law no. 31/1990 (Romania), with focus on those particular hypotheses in which the total or partial division of the company is performed with an inequal allocation of active and passive economic elements to the recipient companies. Given that the means of protection differ depending on whether the claims of the creditor have fallen due or have not yet fallen due at the time of the publication of the draft terms of division, the paper explores the various legal means available to the creditor whose claims have already fallen due at the time of such publication, and compares the degree of efficiency and complexity of the means available to each type of creditor.

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Eficacitatea mecanismului de examinare a investiţiilor străine directe în Uniunea Europeană

Author(s): Ionela-Diana Pătrașc-Bălan / Language(s): Romanian Issue: 1/2020

The international economic and investment reality has forced the European Union (EU) to adopt measures that, on the one hand, encourage foreign direct investments (FDI) on its territory, and on the other, to protect its economic, financial and strategic interests, given that these investments can pose a real risk to its security. In this article we intend to present the mechanism established by Regulation (EU) 2019/452 screening of foreign direct investments into EU and to analyze to what extent the chosen solution can lead to the achievement of the proposed purpose.

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Riscuri fiscale în externalizarea activităţii întreprinderilor

Author(s): Tudor-Matei Rusu / Language(s): Romanian Issue: 1/2020

This article will analyze the tax problems that may occur during the outsourcing process. The enterprises can organize their activity in a such way that many of the subsidiary tasks are outsourced to other companies. The fiscal problems arise when the outsourcing process is used to shift the profit from one company to another, the last one being subjected to a much more attractive tax regime. In the first part, a classification of the types of outsourcing will be made followed by the advantages and disadvantages of this process. In the second part of the article, the remedies against fictive outsourcing will be analyzed.

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Protecţia informaţiilor de afaceri: informaţii clasificate, confidenţiale, date cu caracter personal

Author(s): Ștefan Răzvan Tătaru / Language(s): Romanian Issue: 1/2020

Business is in a continuous and dynamic process of adaptation in order to meet the market demand and to withstand in a competitive environment. In the context of the digitization and internationalization of commercial and research operations, organizations seek to protect business information considered valuable, and at the same time to comply with the requirements imposed by the regulations in the field of personal data protection and classified information. The present study highlights the types of information used in business activities and the available means of protection. The study focuses on the analysis of confidential information, classified information, personal data and public information processed through competitive intelligence activities.

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Overview Analysis of the Voluntary Winding up of Solvent Companies under the Companies Act 71 of 2008

Author(s): Howard Chitimira / Language(s): English Issue: 3/2019

Winding up enables affected companies to be administered by the courts for the benefit of their members, creditors and other relevant persons. The available assets are divided amongst members, other relevant persons and creditors in accordance with their rights. The Companies Act 71 of 2008 (Companies Act 2008) regulates the winding up of solvent companies in South Africa while the winding up of insolvent companies is still regulated by sections 343, 344, 346 and 348–353 of the repealed Companies Act 61 of 1973 (Companies Act 1973). A solvent company may be dissolved through a voluntary winding up application initiated by the company members or shareholders and/or creditors in terms of the Companies Act 2008. Consequently, this article discusses the voluntary winding-up of solvent companies by its shareholders or creditors under the Companies Act 2008. Procedures, formalities and requirements that need to be followed to effect such voluntary winding up are also discussed.

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The Emerging Digital Age and Its Legal Impacts on Copyright Protection in Nigeria: The Need to Strategize

Author(s): Fabian Odoh,Godwin Emeka Ngwu / Language(s): English Issue: 3/2019

This work examined the legal impacts of the emerging digital age on copyright protection in Nigeria with a view to suggesting ways forward. A cursory look at the level of technological advancement will reveal that new technologies are pushing the older ones into extinction,which has been witnessed in every sphere of human endeavor. It is observed that unauthorized users areas sailing protected work with impunity, hence no corresponding legal sophistication to keep to the pace of the advancement in Nigeria. This work adopted a descriptive and analytical design of which reliance was placed on primary and secondary data. It has equally exposed the inadequacies of the extant copyright law in Nigeria with a view to determining if the present legal regime can effectively address the emerging issues accompanying the emerging digital age. It is revealed that the Nigerian government has refused to pay deserved attention to its creative industry which has adverse implication on the economy because aspiring creators will always look up to incentives.

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The Role of Regulatory Bodies and Other Role-Players in the Promotion of Financial Inclusion in South Africa

Author(s): Howard Chitimira,Menelisi Ncube / Language(s): English Issue: 1/2020

The promotion of financial inclusion is vital for the combating of financial exclusion in many countries, including South Africa. Nonetheless, most of the poor and low-income earners are still struggling to have access to basic financial products and financial services in South Africa. This status quo has been, inter alia, caused by several factors such as the lack of a specific statute for financial inclusion, the lack of a specific regulatory body to enforce that statute and the adoption of inadequate measures by the government and other role-players to effectively promote financial inclusion for the poor and low-income earners in South Africa. It is against this background that this article discusses the role of the government, regulatory bodies and other relevant role-players in the promotion of financial inclusion in South Africa. In this regard, the role of the South African Reserve Bank (SARB), the Banking Association South Africa (BASA), the National Consumer Tribunal (NCT), the National Credit Regulator (NCR), the National Treasury and the National Consumer Financial Education Committee (NCFEC), the Financial Sector Conduct Authority (FSCA) and the Prudential Authority (PA) is discussed. This is done to investigate whether these regulatory bodies and role-players have adopted adequate measures to robustly and consistently combat financial exclusion of the poor and low-income earners in South Africa.

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LEGAL REGALEMENTS OF E-SIGNATURE

Author(s): Tea Edisherashvili / Language(s): English Issue: 39/2020

The development of informative technologies, including that of the Internet, has significantly changed the human's life. The largest portion of civil turnover has been encompassed by e-commerce. This latter is being executed through e-contracts. The e-contract from the doctrinal point of view is considered as dealt and the existence of e-signature is an essential component of its authentication, which in its turn determines the issue of existence-absence of written form. The present article is related to the issues of legal status, technical safety and reliable environment of application of e-signature. The necessity of applying the legal instrument was conditioned by the necessity of gradual disappearance of paper-based operations' execution practice. The application of e-document turnover is justified only in case if the authentication of the document and the signature placed on it has been followed and all this has been acknowledged by the third party. Despite the various models of e-signature, for all of them, it is important to have a reliable and safe environment, for guaranteeing the safety and signer's identity. The article shows the issues related to legal governing of e-signature according to the legislation of Georgia, also Russian Federation, Continental Europe, Common Court member states, as well as directives and guidelines developed by international organizations.

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THE FEATURES OF THE SALES CONTRACT – AS AN ACT OF COMMERCE

Author(s): Smaranda Angheni / Language(s): English Issue: VIII/2020

The unification of private law, according to the monistic theory, meant the absorption by the Civil Code of the provisions of the Commercial Code in the matter of the contract of sale, provisions which, to a large extent, apply both to the sale, qualified as a civil act, as well as to the commercial sale, with the exception of those rules applicable in relations between professionals or, as the legislator often puts it, "in the operation of an undertaking".Although, there are some applicable derogating provisions "in the operation of an undertaking", however, they do not refer only to professional traders whose activity is materialized in acts (deeds) of trade but to all categories of professionals.On the other hand, in the absence of legal regulations on commercial acts, but especially on their characteristics, it is the role of the specialized doctrine and even of the courts to highlight the specific features of acts (deeds) of trade.

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The correlation between categories of shares and type of assemblies of the issuing company

Author(s): Andreea Corina Tarsia / Language(s): English Issue: VIII/2020

The profusion of the activities of joint stock companies in the economies of the Member States and their strategy to expand their business beyond the borders of their national territory, determines the formation of a certain level of the registered capital and, in order to protect the market, the law imposes a minimum level of the capital, forcing trading companies, from their establishment, to embody in the constitutive act, the number and nominal value of the shares, leaving them the freedom to choose the type and form of the shares and to launch issues with various shares.Moreover, the law recognizes the shares’ quality of credit titles issued "in bulk", it groups them from the date of their issuance by categories, types and species and makes them subject to particular legal rules, from the time of their creation through the constitutive act, continuing with their entry into the legal trading and ending with their exit from this trading.In relation to the types and categories of shares, the law regulates various legal relationships born both inside and outside the issuing company.Thus, within the internal structure of the company, the holders of ordinary shares are reunited in the general assembly, which is placed in a position of supremacy, not only because of the subordination of the management and control bodies, but also due to its deliberative powers, for which shareholders do not answer and are not held accountable before anybody. With regard to the deliberative powers of the general assemblies of the holders of ordinary shares, which grant their owners equal rights, the sole limitations concern the observance of the rights of the registered creditors, the protection of the rights of the shareholders against the will of the majority and the observance of the equal treatment of all shareholders.On the other hand, the legislator regulates the company’s possibility to form categories of shares to which different rights are attached and, in relation to these shares, it organizes within the same company, other assemblies, consisting of the holders of the shares conferring different rights.Given the foregoing conditions, the herein analysis aims to elucidate the reason for which the decision of the general assembly, having as object operations that affect rights of the shareholders belonging to different categories of shares, must be approved by the holders of each category of shares.To this end, the study will focus on answering the following questions: what are the categories of shares issued by trading companies, what is the importance of their identification, what is the impact of the categories of shares on the organization of general assemblies in the issuing company and to what extent do the decisions made by the general assemblies of the shareholders of each category interfere?

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Possibility of forced execution of social parts in fiscal matters. Capitalization of the social parts in order to settle the budget receivables

Author(s): Ana-Maria Gaspar / Language(s): English Issue: VIII/2020

The article aims to address a topic of interest to enforcement bodies, which can use any means provided by the legislature to recover tax claims owed by debtors.The entry into force of the Code of Civil Procedure, the Code of Fiscal Procedure and the Fiscal Code has generated and generates a series of contradictions, and against the background of these contradictions the enforcement bodies are still unjustified all the more as the courts tend to win the case, most often to the debtors.Through this article I set out to highlight the fact that enforcement bodies may also resort to the enforcement of shares or shares of the debtor, respectively of intangible movable property, even if the legislature has not stipulated expressly in the provisions of the Code of Fiscal Procedure these issues.Hereby, this article aims to deal with the way in which the procedure for the sale of shares in private companies and equity capital may be used, regardless of the type of company, by the enforcement bodies, in order to recover the tax receivables due to the local budget or the state budget.

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SUBORDINACIJA ZAJMOVA VLASNIKA U STEČAJNOM POSTUPKU – UPOREDNOPRAVNI OSVRT

Author(s): Aleksandra Višekruna / Language(s): Serbian Issue: 2/2020

Zaštita interesa poverilaca je osnovni cilj stečajnog postupka i radi ostvarenja tog cilja stvara se niz instituta kojima će se sprečiti da poverioci budu oštećeni tokom stečaja. Jedno od posebno značajnih pitanja je kako obezbediti da lica povezana sa stečajnim dužnikom ne iskoriste svoj specifičan status i pribave za sebe koristi na štetu drugih poverilaca. Poseban akcenat se stavlja na vlasnike stečajnog dužnika u situaciji kada društvu daju dodatna finansijska sredstva. Osnovno pitanje je kako će se to davanje tretirati u stečaju – kao zajam ili ulog u kapital, što sa sobom povlači određene posledice, pre svega u pogledu redosleda namirenja pot raži vanja.Rad je tematski podeljen na dve celine. Prva celina obrađuje pitanja vezana za subordinaciju kao institut, dok druga ovo pitanje stavlja u kontekst pojedinih pravnih sistema. U radu se ukazuje na postojanje dve grupe prava – jedne koja subordinaciju ne poznaju kao zakonski institut i druge gde subordinacija ima zakonsko utemeljenje. Uporednom analizom obuhvaćeni su nemačko pravo koje ima višedecenijsku tradiciju primene ovog instituta koji je tokom istorije doživljavao značajne transformacije, austrijsko i špansko pravo koji su u uređenju svojih rešenja pošli od nemačkog uzora i pravo SAD kao primer sistema u kojem se subordinacija zasniva na subjektivnim kriterijumima.

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PRAVILO POSLOVNE PROCENE

Author(s): Tijana Kovačević / Language(s): Serbian Issue: 2/2020

U radu se ukazuje na nedostatke pravila poslovne procene u Zakonu o privrednim društvima. Reč je o institutu koji je nastao kao produkt američke sudske prakse, ali koji je široku popularnost stekao i u drugim državama. Trend pravne transplantacije nije zaobišao ni našu zemlju, te je iz tog razloga jako bitno definisanje ovog pravila i ispravno razumevanje razloga njegovog postojanja. Upravo zbog toga prvi deo rada posvećen je istorijskom razvoju pravila poslovne procene, dok je centralni deo rada usmeren ka određivanju kruga lica koja su zaštićena ovim pravilom, kao i pretpostavkama koje moraju biti ispunjene kako bi se aktivirao mehanizam zaštite. Te pretpostavke u stvari konstituišu dužnost pažnje i služe za određivanje pojma pravila poslovne procene i nisu jedinstveno prihvaćene u svim pravnim sistemima. U radu je pojedinačno analizi ran svaki od njih: 1. poslovna odluka; 2. odsustvo sukoba interesa; 3. savesnost; 4. informisanost pri odlučivanju; 5. pažnja dobrog privrednika i 6. uverenje da se deluje u najboljem interesu društva. U završnom delu rada se ukazuje na obrnuto postavljenu raspodelu tereta dokaza koja podriva efikasnost zaštitne uloge pravila poslovne procene.

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OVERCOMING ERRORS AND BIASES IN THE BOTSWANA PUBLIC SECTOR PERFORMANCE APPRAISAL SYSTEM THE CASE OF MINISTRY OF TRADE AND INDUSTRY

Author(s): Tshukudu Theophilus Tebetso / Language(s): English Issue: 4 (49)/2020

This paper examines the weakness of the Botswana Public Service’sPerformance Appraisal System particular as regards errors and biases committed by publicsector managers responsible for the evaluation of employee performance. Performancemanagement systems should be built on the premise that the vast majority of people come towork to do their best for themselves and for the organisation. Management’s role is to supportthem, help them understand what their best has to be, and how they can develop themselvesas individuals. This paper therefore endeavours to come up with recommendations on howpublic sector managers can improve the out com9e of performance appraisal thus improve theoverall organisational performance. Performance appraisal system used in isolation cannotimprove performance or productivity. However, once deficiencies or inadequacies areidentified and rectified within the current performance appraisal system, then the effectiveimplementation of performance management can take place.

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Finančné pyramídy a ich regulačné perspektívy

Author(s): Ľubomír Čunderlík / Language(s): Slovak Issue: 3/2020

It can be stated that there is no explicit regulation of the issue of financial pyramids in thelegal order of the Slovak Republic or on European law level. In the legislation, it is possible to distinguish case-by-case whether it is a general prevention of financial pyramids or whether it is a regulation-specific prohibition regarding activities on the financial market. The national financial market supervisory authority in particular plays an important role in the field of protection. In the article, the author identifies the essential features of the pyramid schemes in general, subsequently in the light of financial market regulation.

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Změna zákona o České národní bance jako cesta k měnovému financování?

Author(s): Michael Kohajda / Language(s): Czech Issue: 3/2020

In his article, the author deals with the amendment to the Act on the Czech National Bank adopted in the spring of 2020. He examines the process of adopting this amendment and also the reasons for its adoption from the point of view of monetary financing. He examines whether the consequence of this amendment potentially could not result in enabling monetary financing by the Czech central bank. Furthermore, his article also deals with the nature and risks of monetary financing, discusses the difference between direct and indirect monetary financing, the reasons for the ban on monetary financing and the importance of whether monetary financing is carried out directly or indirectly from the perspective of this ban and its reasons. In conclusion, the author evaluates the adopted amendment to the Act that this amendment introduces instruments that could be used for monetary financing, but that the specific use of the instruments is more important, as they can be used for monetary policy purposes or to maintain financial stability, where their use is generally acceptable, but also for the monetary financing, where their use should be prohibited.

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LEGAL BARRIERS AND QUALITY COMPLIANCE IN THE BUSINESS OF BIOFERTILIZERS AND BIOPESTICIDES IN INDIA

Author(s): Hasrat Arjjumend,Konstantia Koutouki / Language(s): English Issue: 40/2020

Biofertilizers and biopesticides (together known as ‘biologicals’) hold the potential to increase farmers’ current agricultural productivity, while at the same time contributing to the soil’s ability to produce more in the future. However, the legal registration of microbial products and the operation of businesses dealing in biologicals face certain barriers, which ultimately affect the expansion and widespread use of these green products in Indian agriculture. By involving manufacturers, suppliers and traders of biologicals, as well as government officers dealing with biologicals in India, a study was conducted using participatory methods of semi-structured interviews, structured interviews and informal discussions. This article explores the participants’ perceptions and understanding of the barriers, obstacles and issues in the registration, licensing, proliferation and business operations surrounding the manufacturing, sale, trade, import, export, storage, use, and transport of microbial products. Numerous barriers to business and trade in microbial green products – biofertilizers and biopesticides – are identified. Nevertheless, certain weaknesses related to quality compliance and monitoring are also identified on the part of the manufacturers and suppliers of these biologicals, indicating that the government’s regulatory system must be more efficient and competent in handling these processes.

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