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THE IMPORTANCE AND THE USEFULNESS OF THE CONCEPT OF STOCK AND TRADE WITHIN THE CURRENT LEGISLATIVE FRAMEWORK

Author(s): Smaranda Angheni / Language(s): English Issue: VI/2012

In the heritage of the professional - trader, there is a “set” of goods intended to business, goods which, by their nature tangible or intangible, movable and immovable, are regarded as a fact universality (de facto) and not a legal universality (de jure). Thus, from the outset, it should be noted that stock and trade cannot be confused with the heritage, the essential difference consisting in the fact that stock and trade not only contains rights and obligations but goods intended to business that is carried out by the professional person , while the assets include all rights and liabilities that can be quantified in money belonging to it (art. 31 C. civil). Under these conditions, the stock-in-trade is not identified with professional dedicated assets, which, according to the Civil Code (Article 31 paragraph 3 and art. 31 para. 1 and paragraph 2), is represented by the "fiduciary property masses, created under the provisions of Title IV III of the book, those intended to develop a licensed profession and other patrimonies determined by law ".

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COMMERCIAL RELATIONS OF ROMANIA

Author(s): Dana Elena Boian (Roşca) / Language(s): English Issue: VI/2012

This paper reveals Romania's trade from 1990 up to present. In the first part we described a series of internal and external factors that have led to major structural changes and then we continued with a description of trade policy in relation with neighboring countries and the European Union.

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GLOBALISATION AND HARMONIZATION OF CONTRACT LAW

Author(s): Viviana Celan / Language(s): English Issue: VI/2012

The draft of a common contract law for the countries of the European Union contained in the "Principles of European contract law “is published in 2000 and 2003, the "Principles of European contract law" has been developed later by the "Common frame of reference". A legal system which governs 27 States, written in 23 official languages concerning the contracts could be useful for the national courts of justice in their interpretation too.Promoting integration and harmonization of the contract law was the aim of all the groups of study appointed by the Commission.

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COMPLAINT AGAINST THE LEVY OF EXECUTION AND THE OPPOSITION TO THE EXECUTION IF BILLS OF EXCHANGE AND PROMISSORY NOTES

Author(s): Cristian Drăghici / Language(s): English Issue: VI/2012

The promissory note is a commercial effect, signed by a person named issuer or underwriter undertakes to pay a sum of money due to another person named beneficiary, or to order it. Form, promissory note resembles an acknowledgment of debt by the debtor to his creditor.Being a commercial basis value, the promissory note is a debt instrument, notes, formal and complete, which incorporates an obligation abstract, autonomous and unconditional payment of a fee by the subscribers, held jointly for performance .One of the problems frequently encountered in legal practice is challenging routes promissory notes by debtors, whether this appeal concerns the enforcement itself or just the ways and forms of its enforcement. Competition between common law legal regulations on appeal from enforcement of the Code of Civil Procedure and regulations in the Law no. 58/1934 on bills of exchange and promissory notes, put before a court delicate operation qualification of actions which neither parties often do not know to qualify rigorous qualification by the court later depending on a number of key issues on admissibility, the time limit for the appeal, suspend the enforcement conditions.

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THE JUDICIAL REORGANIZATION PROCEDURE. THE MOMENT OF A PARADIGM SHIFT

Author(s): Ioan Morariu / Language(s): English Issue: VI/2012

This work, with its focus on the place and the function of the judicial reorganization within the insolvency procedure and the perspectives of this procedure, is published in a period of turmoil and economic transformation, but also during a period of legal settlements and crystallization, which calls for analysis and doctrinal clarification.In the general context of insolvency, the judicial reorganization began to gain a place at the forefront, but the process has not yet been completed, leaving room and premises for future developments. The very evolution of Romanian society in general and of the business environment in particular require further development of the institution of judicial reorganization and the redefinition of the status thereof, for the purposes of imposing it as the mandatory procedure or rule in all insolvency procedures.In this context, I feel that the time has come for the judicial reorganization procedure, part and essential step of the insolvency procedure, to make a qualitative leap in its natural evolution. In other words, it is time for a true paradigm shift in the judicial reorganization.

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THEORETICAL ASPECTS REGARDING THE PARTICULARITIES OF ELECTRONIC CONTRACTS

Author(s): Romulus Morega / Language(s): English Issue: VI/2012

With the emergence of Internet, a "new industrial revolution" is about to change traditional vision of the diffusion of information and, more broadly, on communication in general. The talk is increasingly about the "Information Society", this concept defining an economy and a society in which the collection, storage, processing, transmission, dissemination and use of knowledge and information, including the development of interactive communication techniques, play an essential role. Information Society represents a new stage of human civilization, a new way of life quality education that involves intensive use of information in all spheres of human activity and existence, with an economic impact and social major. The information allows broad access to information of its members, a new way of working and knowledge, increase the possibility of economic globalization and increasing social cohesion.

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OLD AND NEW IN INSOLVENCY PROCEEDINGS

Author(s): Cristian Drăghici / Language(s): English Issue: VII/2013

The basic idea of the Law no. 85/2006, with it`s modiffications , inspired by the evolution of modern concepts on traders in difficulty lies in creating mechanisms to test the recovery of the debtor, so that, if the operation is unsuccessful, to proceed with the sale of its assets and pay liabilities . Obviously, when the situation of the debtor is hopelessly compromised, not longer trying recovery, but it goes straight to liquidation in bankruptcy.Conflicting interests that must be satisfied by such legislation are mainly trade debtors of natural or legal person and those of creditors.This paper proposes an objective analysis of insolvency proceedings , in light of changes and new elements intended to make this procedure by new Insolvency Code materialized in the Emergency Ordinance no. 91/2013 on insolvency proceedings and insolvency prevention .

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CONSIDERATIONS OF THE LEGAL SYSTEM OF THE SHAREHOLDERS’ CONTRIBUTIONS

Author(s): Anca Popescu-Cruceru,Gabriela-Eugenia Leuciuc / Language(s): English Issue: VII/2013

The essential aspect which must be taken into consideration in the analysis of the legal system of the shareholders is represented by the intrinsic content of the contribution’s liability, content which determines, as a last resort, the shareholder’s acquirement of a right over the patrimony itself derived from the company’s functioning, in the case of companies with legal personality. The issue is of a more significant interest in the case of simple partnerships, where, according to certain opinions, there cannot be brought into discussion the existence of a proper patrimony, not even grafted on the theory of the patrimony of affectation.

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Liquidation of the Bankruptcy Estate in Poland

Author(s): Rafał Adamus / Language(s): English Issue: 1/2020

The purpose of this study is to present the general principles and general issues of liquidation of the bankruptcy estate under Polish law. It should be stressed that liquidation of the bankruptcy estate is intended to satisfy the creditors of the insolvent debtor. Therefore, the manner of liquidation of the bankruptcy estate has an obvious impact on the final bankruptcy dividend for the creditors. The rules governing the liquidation of the bankrupt’s assets are of the key-importance for the theory of law and the practice. The article defines the directional principles of liquidation of the bankruptcy estate, procedure of liquidation of the bankruptcy estate. The subject of this paper there is the liquidation of the bankruptcy estate in dealing with insolvent consumers and the so-called prepared liquidation (pre-pack), which is to simplify and accelerate the liquidation of the debtor's assets. The issue of the liquidation of the bankruptcy estate became seriously important because of the crisis after SARS-CoV-2 epidemy

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Mandatory and Default Rules in Private Law Czech Republic

Author(s): Kateřina Eichlerová / Language(s): English Issue: 1/2020

The distinction between mandatory and default rules is very important. If default rules are considered mandatory, this leads to a restriction of freedom. Conversely, if mandatory rules are considered default, this leads to a violation of the law and undesirable interference in the sphere of persons who should be protected by law. The article focuses on the development of the nature of company law in the Czech Republic and shows the current state of discussion and case law in this area. The author concludes that the scope for private autonomy has increased considerably with the recodification of private law. This is caused not only by a more liberal regulation of companies contrary to pre-recodification, but also by the intense discussion that the new regulation has provoked. Thanks to the new legislation, the institutes of company law can be rethought. This then allows the start of a teleological interpretation of rules in searching their natures.

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Mandatory and Default Rules in Polish Company Law

Author(s): Bartłomiej Gliniecki / Language(s): English Issue: 1/2020

Company law regulations provide opportunity of individual shaping some of companies’ and partnerships’ rules of operation. Proper determination of those regulations which may be modified by adopting different rules in articles of association (company statues, partnership agreement) is important as far as legal safety of corporate regulations is concerned. Abusing or misunderstanding of company law regulations may lead to invalidity of contractual arrangements that would infringe mandatory regulation of company law. The article provides a general view on the principle of freedom of shaping company articles of association in Polish company law as well as ways of distinguishing between mandatory, semi-mandatory and default rules in Polish company law. Apart from general remarks and indications helpful in understanding Polish law, it also provides specific examples of company regulations in Poland and references to company law rules in other European countries.

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Mandatory and Default Rules in Serbian Company Law

Author(s): Branislav Malagurski / Language(s): English Issue: 1/2020

The matter of company law in Serbia is regulated by the Law on Companies, which does not contain the general provision defining whether it is based on the freedom of will, unlike the Law on Obligations, which defines so. Even therefrom, it can be concluded that the rules of the Law on Companies are in general mandatory. Such conclusion only confirms the exception-provision which defines that founders of the LLC their mutual relations and their relations with the Company regulate freely, unless by this Law otherwise defined. So, only the rules regulating mutual relations of founders and their relations with the LLC are default, unless otherwise provided in particular case. Other rules of the company law in Serbia are in general mandatory. However, even when the provisions regulating certain matter being mandatory, it does not mean that there is absolutely no space for deviations, like in below described cases of special duties, for example. But such deviations do not necessarily mean that the rules from which it is deviated are default ones.

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ZAŠTITA PRAVA SLABIJE UGOVORNE STRANE U SKLADU SA PRINCIPIMA EVROPSKOG UGOVORNOG PRAVA OSIGURANJA

Author(s): Mirjana B. Glintić / Language(s): Serbian Issue: 3/2020

Analiza domaćeg i uporednog zakonodavstva ukazuje da je i dalje prisutan nekadašnji trend regulisanja ugovornog prava osiguranja, koji se ogleda u nastojanju zakonodavaca da obezbede osiguravača od prevarnog postupanja ugovarača osiguranja. Ipak, koristeći uporednopravni i istorijski metod, ustanovili smo da nacionalni zakonodavci sve više pristupaju izmeni pravnih propisa u cilju održavanja koraka sa savremenim tendencijama, koje se ogledaju u pružanju neophodne zaštite slabijoj ugovornoj strani, tj. uslovno govoreći, potrošaču. Iz tog razloga, predmet istraživanja su određeni mehanizmi zaštite prava slabije ugovorne strane u Principima evropskog ugovornog prava osiguranja, budući da je reč o izvoru mekog prava, čiji autori su nastojali da sublimiraju što je moguće veći broj pozitivnih rešenja i uzora za postizanje većeg nivoa zaštite slabije ugovorne strane.U radu su predstavljena neka od rešenja iz Principa koja, po mišljenju autora, obezbeđuju povećanje prava slabije ugovorne strane prema osiguravaču, uz smanjenje njihovih obaveza i isključivanje isuviše strogih sankcija u slučaju pogrešnog ponašanja. Iako verovatno Principi neće ući u proces ozakonjenja na nivou Evropske unije, makar u skorijoj budućnosti, i dalje ostaje mogućnost za njihov uticaj na nacionalnom zakonodavnom i naučnom nivou. O tome svedoči i ovaj rad, čiji rezultati mogu doprineti preispitivanju aktuelnih domaćih zakonskih rešenja, i to tako što se mogu iskoristiti kao model za izmenu i unapređenje nacionalnog zakonodavstva.

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STEČAJ NAD IMOVINOM OSTAVIOCA (ZAOSTAVŠTINOM) KAO OBLIK LIČNOG STEČAJA

Author(s): Vladimir Čolović / Language(s): Serbian Issue: 3/2020

Stečaj nad imovinom ostavioca je oblik ličnog stečaja. Ovaj institut sadrži niz specifičnosti koje ga, po pojedinim elementima, odvajaju od ličnog stečaja. Međutim, veći deo pravila ličnog stečaja se mora primenjivati i kod ovog oblika stečaja, s obzirom na status ostavioca, njegove imovine i naslednika. Da bi, uopšte, mogli da definišemo primenu pravila ličnog stečaja kod stečaja nad imovinom ostavioca, moramo poći od osnovnih pravila naslednog prava koja se tiču prihvatanja nasleđa i dugova zaostavštine. Isto tako, moraju se definisati i bitni elementi sa stanovišta pravila ličnog stečaja, a to je status ostavioca pre smrti, izvor nastanka potraživanja poverilaca, status zaostavštine, kao i eventualna mogućnost vođenja posebnog ličnog stečaja protiv naslednika. U radu se posvećuje pažnja i nemačkom zakonodavstvu, kao i zakonodavstvu Sjedinjenih Američkih Država u ovoj oblasti.

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FROM INTANGIBLE ASSETS TO INTELLECTUAL PROPERTY: DELINEATING THE INTELLECTUAL PROPERTY COMMERCIALIZATION FROM THE LEGAL PERSPECTIVE

Author(s): Osman Bugra Beydogan / Language(s): English Issue: 2/2020

The economic attribute of intangibles in the contemporary world is of inarguable significance. Correspondingly, intellectual property rights present the most value-intense, and the most refined, element of the intangible capital. This attribute is largely owed to the legal recognition to which they are subject, as distinct from the other sorts of information assets that are also of economic value. The said legal recognition intrinsically entails a strong protection and enforcement of the rights as well as a transactional value to the rights. Intellectual property rights thus became the most significant corporate assets and their quiddity has notably evolved into a commercial nature. Meanwhile, on the legal basis, the principal theories regarding the rights over intangibles have been historically pertained to individualist approaches as opposed to the -evolved- commercial nature by which these rights are today identified. In addition, the classification among intellectual capital elements themselves are more subtle than ever in connection to the immense growth of knowledge-based economies. On that note, throughout this study we strived to discuss the significance of intangibles in creating value, and relatedly, the position of intellectual property rights with reference to the legal identity they are backed up with. Secondly, we focused on the nature of said legal identity, more specifically through the concept of property rights in the classical sense; whether intellectual properties are qualified as properties within the conventional legal meaning. Finally, we sought to answer, respectively: why these rights are more mercantile -or commercial in nature- than the tangible assets; and what is the area depicted by the term ‘commercialization’ when it comes to the legal perception of intellectual property commercialization.

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ROMANIAN COURTS HOLDING JURISDICTION IN THE IMPLEMENTATION OF THE PROBATION MEASURES

Author(s): Andrei-Dorin Băncilă / Language(s): English Issue: 2/2020

The new law of enforcement of sanctions and non-deprivation procedural measures, namely Law no. 253/2013 regulates “the jurisdictional nature of execution”. This jurisdictional nature of the enforcement of sanctions and non-deprivation procedural measures reflects through the involvement of the courts in the resolution of a significant number of issues related to enforcement. Courts, either by judges delegated with administrative or judicial-administrative competences, or by judges in full capacity and who performs purely judicial duties specific to the judicial function, are called upon to perform activities designed to ensure the enforcement of the precepts contained in the court order or to regularize the actual execution by solving the incidents that arise during the execution.

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Factoring online și platforme de comercializare a facturilor. Redefinind viitorul tehnicilor de finanțare a comerțului

Author(s): Marius Brănici / Language(s): Romanian Issue: 1 bis/2020

Factoring has now established itself, both domestically and internationally, on a competitive market that has matured with the evolution of information technology, proving to be a strong and important financial instrument, along with invoice discounting technique. Recent years have seen the development of new types of invoice finance as part of the alternative finance market involving the sale of specific debts upon web-based invoice trading platforms. Now, more than ever, in providing the much-needed liquidity to companies in times of global supply chain disruptions caused by the current Covid-19 pandemic, online factoring and invoice trading on online platforms provides the financing that entrepreneurs need for the continuous cash flow, indispensable to their business.

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Non-assertion pledges sau despre figuri juridice proteice

Author(s): Ramona Daniela Stangaciu / Language(s): Romanian Issue: 1 bis/2020

Nowadays, the patent system landscape is a complex one, as jurists create new legal instruments in order to deal with the practical problems that arise out of the exploitation of patents. One of these legal instruments is the patent pledge. Throughout his article we will examine the legal implications of assuming a patent pledge by the patent owner. In our analysis we will focus on one specific type of pledge, the non-assertion pledge and we will try to discover if it is legally binding. In order to emphasize the differences between the legal systems, we will take into account the solutions elaborated by authors from the United States of America. Finally, we will offer an insight into how these legal instruments can be examined from the perspective of the Romanian legislation.

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Spicuiri privind conceptul de grup de persoane juridice cu scop lucrativ

Author(s): Alexandru Cuznețov / Language(s): Romanian Issue: 2/2020

With the emergence of groups of for profit legal entities (economic interest groups, unions of legal entities, unions of enterprises, concerns, holding companies, related enterprises, social systems, etc.) the activity of a classic entrepreneur was irreversibly reshaped. The new for profit organizational legal forms have catalysed the founding of many groups that conduct their business globally, which has driven a new process called by many a process of globalization.

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Limits of resolution tools under the BRRD and the Czech act on recovery procedures and the financial market crisis resolution

Author(s): Martin Šerák / Language(s): English Issue: 4/2020

Given the unique position of credit institutions and their systemic importance for the financial stability, their resolution has been traditionally entrusted to supervisory authorities rather than courts. As a result, credit institutions are essentially excluded from the scope of “traditional” insolvency procedure and fall under the resolution regime constituting specific form of administrative proceedings. Directive 2014/59/EU of the European Parliament and of the Council (known as the BRRD) is of a particular consequence here as it harmonized the resolution process at the level of the European Union and the European Economic Area, inter alia through the implementation of specific resolution tools. This article deals with conditions for applicability of such resolution tools, their fundamental mechanics as well as legal implications arising thereunder, considering also the Act on Recovery Procedures and the Financial Market Crisis Resolution under which the BRRD has been implemented into Czech law.

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