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Публичната собственост и римскоправните аспекти на нейното регулиране

Author(s): Malina Novkirishka- Stoyanova / Language(s): Bulgarian Publication Year: 0

The article is the first part of a more extensive work within a scientific project of the Law Faculty of “Paisiy Hilendarski” University of Plovdiv No. FP19 – UF – 003 on current aspects of the study of property relations in modern law, some of which are a reflection of Roman law institutions. It is devoted to the concept of public property and the corresponding classifications in Roman law sources as a basis of modern distinction between public and private property. These issues are introductory to the further study of the right of use, legal protection of public property and the transformations between public and private property - some of the most dogmatically discussed issues, which have a wide practical significance and raise many questions about the nature of the legal regulation of the borderline cases between public and private possession and use of property and goods.

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Инсуфициентните субективни права в частното право

Author(s): Polya Goleva / Language(s): Bulgarian Publication Year: 0

The article addresses the rights that are not of full value. There are rights, which only declare what to do, but there is not any sanction in case of their breach and the owner of the right cannot realize it. There is no possibility to fulfill the rights. In German theory these rights are referred to as ‘Unvollkommene Rechte’. Literally, this means ‘imperfect rights’. I prefer the term ‘insufficient rights’, because it expresses most precisely the specific features of the rights, subject of research in this article. Insufficient are rights, which suffer a lack of some elements and this is the reason why these rights are not recognized as perfect private rights.

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Заплашване при договарянето

Author(s): Angel Shopov / Language(s): Bulgarian Publication Year: 0

The article addresses the main lines of the historical development of the institution, through a comparative perspective, from the beginning of the XIX century until today. It refers to the regulation of the civil laws – models of continental legal system (French and German), together with this of the Italian and Bulgarian law. The elements of the factual composition of this ground for annulment of the contracts [under Art. 30 of Bulgarian Law of Obligations and Contracts (LOC)] are stated. A brief analysis of the regulation of soft-law sources is made.

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Павловият иск и неговите проявления в съвременния граждански и търговски оборот

Author(s): Yordanka Noneva-Zlatkova / Language(s): Bulgarian Publication Year: 0

Civil and commercial relations in today’s realities of technological and technical progress are developing at an extremely fast pace so as to respond to civil and commercial situation. Despite this progress, Actio Pauliana continues to exist in today’s legal reality. It is an institution that has retained its significance since the time of Roman law and is still evolving today. This material represents an analysis of the case law under Art. 135 of the Bulgarian Law on Obligations and Contracts, highlighting the significance of the Interpretative Decision No. 2 of 09.07.2019 in case 2/2017 of the General Assembly of the Civil and Commercial Division of the Bulgarian Supreme Court of Cassation for unification of jurisprudence and making a parallel with the Actio Pauliana in the commercial law and its specific features.

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Особености на дискриминационния мотив при престъпленията от омраза

Author(s): Maria Mihaylova / Language(s): Bulgarian Publication Year: 0

The report examines the discriminatory motive for hate crimes under Bulgarian criminal law. The report analyzes and compares the regulation and legal characteristics of the discriminatory motive under US criminal law. The report also examines the importance of emotions in formulating a discriminatory motive and its understanding by investigative and judicial authorities.

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Restituirea și recuperarea bunurilor culturale mobile în legislația românească și dreptul Uniunii Europene. Aspecte jurisprudențiale

Author(s): Sorin Ivan / Language(s): Romanian Publication Year: 0

In the field of legal protection of movable cultural heritage, there are two important sections concerning, on the one hand, the restitution by the Romanian state of movable cultural goods that have illegally left the territory of a EU Member State, on the other hand, the recovery of movable cultural goods that have illegally left the territory of Romania. The legal regime of the protection of these goods in domestic law is harmonized with the legal regulations in the European Union within the broad framework of the legislative integration at the Union level. The seat of the matter in the Romanian legislation is represented by Law no. 182 of 25 October 2000 on the protection of the mobile national cultural heritage. By Law no. 123/2017, it was amended in order to transpose into national law Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (Recast). The EU legislation and the national legislation of the Member States create a system for the protection of cultural heritage objects, in this case, and cultural heritage, in general, at European Union level, governed by the principles of subsidiarity and proportionality, as laid down in the Treaty on European Union.

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Unele considerente privind corelația dintre jurisdicția europeană și jurisdicția constituțională națională

Author(s): Cristian Popa,Romeo-Ioan Gârz / Language(s): Romanian Publication Year: 0

Through the effects produced at international level, the European law is highlighted both by its autonomy and uniformity, but especially by the obligation applied non-discretionarily to all the Member States of the European Union, as a result of the establishment of an efficient system of judicial protection. The instruments created by the European institutions for the unitary implementation of the norms at national level have, over time, been widely applied, managing to cope effectively with the situations in which the principles of European law have encountered difficulties of application by the state jurisdictions. However, within the process of implementing European norms, a series of dysfunctions in relation to the national regulations have arisen, situations for whose resolutions have effectively competed both the pre-eminence of the European values, established in the treaties, and the exercise of the sovereign prerogatives of national law. At the same time, the states have created a set of constitutional mechanisms designed to facilitate the connection of European norms with the democratic and internal societal needs. In this respect, by linking national constitutional requirements to European jurisprudence, a fair and unitary relationship at European level of complementarity between objectives and means pursued and protection of human rights is created.

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New tendencies of liability in administrative law

Author(s): Elena Emilia Ştefan / Language(s): English Publication Year: 0

In the recent years, we are witnessing a formidable evolution of the legal concepts. Regardless of the legislative system we are in, one of the very current subjects is legal liability in the citizen’s relationship with the state. The tendency we are currently identifying is that liability has an increasingly interdisciplinary character. It is important for law practitioners to know that in comparative law an interference of liability is seen between several branches of law, for example, administrative law and environmental law, due to the recent contribution of jurisprudence. Thus, in France, in a recent matter, very broadly presented in the media, the Paris Administrative Tribunal established the state’s liability for ecological damage caused to private persons. The direct impact of this favorable court decision was immediate, leading to legislative changes. The object of this study is to analyze the interdisciplinary character of legal liability, with a focus on liability in administrative law. By means of the research methods employed in this article, we shall analyze the relevant legislation, doctrine and jurisprudence, in order to capture the tendencies of liability in administrative law, from the national perspective, as well as from the viewpoint of comparative law.

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Autonomy of administrative law in French and Romanian systems

Author(s): Nicolae Alexandru Ceslea / Language(s): English Publication Year: 0

The paper starts with the identification of unitary and dualistic systems of administrative regulation. The analysis stops to the French and Romanian systems and overlaps them, applying the comparative method. This allows us to observe not only what the current regulations of French and Romanian law looks like, but also opens the perspective of an evolved solution that would meet the needs of a modern administrative law.

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Appointment of constitutional judges. A comparative law perspective

Author(s): Marieta Safta / Language(s): English Publication Year: 0

Given the role of constitutional courts essentially expressed by the idea of guarantors of the supremacy of the Constitution, the independence of these courts is crucial for a genuine democracy. In this context, the appointment of constitutional judges is a topic for debate by academia and legal practitioners, on the one hand, and politicians, on the other hand. Foreshadowing a broader analysis of the issue of the independence of constitutional courts in the Kelsenian model, this Communication addresses the issue of the appointment of constitutional judges, with special reference to the European frame of reference. Taking into account the rather heterogeneous nature of the regulations are highlighted elements that will ensure to a large extent the desideratum of independence and public trust in constitutional justice. For a clearer identification of these elements, the analysis is structured in the sense of the distinct presentation of the authorities that make the appointment of constitutional judges, the procedures of appointment, and the necessary conditions for the position of constitutional judge. The conclusions section proposes a set of good practices regarding the appointment of constitutional judges.

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Proceedings on claims brought by state bodies as a special type of administrative procedure

Author(s): Volodymyr Kabanov / Language(s): English Publication Year: 0

The article describes proceedings brought by state bodies as a special form of administrative procedure. There are special requirements for the category of public law disputes, state bodies as plaintiffs in a case, and elements of proceedings in cases brought by state bodies. To a certain extent, the details of individual cases in public law disputes involving state bodies are being developed. Administrative procedure is one of the elements of the mechanism for the protection of citizens' rights, freedoms and interests against unlawful activities by State bodies. State bodies play an important role in this process, as the exercise of their right of action forms a separate category of cases dealt with in the context of administrative justice. State and local government bodies and their officials, other entities in the exercise of administrative authority under the direct provisions of the legislation in force or delegated powers constitute a wide range of subjects of administrative and legal relations. The dispersion in national legislation of the legal basis for their participation in the judicial process adds to the complexity of the legal settlement of the relevant conflict situations.

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The English judicial system

Author(s): Ovidiu Horia Maican / Language(s): English Publication Year: 0

England and Wales have a unified court system, based on common law principles. Scotland and Northern Ireland each have their own judicial systems. The court system in Northern Ireland is close to England and Wales system, while the Scottish court system is mixing elements of both common and law and civil law systems. In England and Wales, most civil cases are analyzed in the County Court. All criminal cases begin in the Magistrates' Court, but more serious offenses are going to the Crown Court. The High Court is both a court of first instance for high value civil claims and as an appellate court for civil and criminal cases. The Court of Appeal is only an appellate chamber. The Civil Division hears appeals form the High Court and the County Court, and the Criminal Division hears appeals from the Crown Court.

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The four main constitutional gaps regarding the presidential veto in North Macedonia and their filling in the light of comparative constitutional law

Author(s): Jeton Shasivari / Language(s): English Publication Year: 0

The President of North Macedonia has at his disposal a constitutional legal instrument which influences the legislative activity of the Parliament. It is about the right of veto over the laws approved by the Parliament, which temporarily suspends the adoption of laws which, according to the President of North Macedonia, are not in the interest of the state or the citizens. The Constitution of North Macedonia regulates this constitutional legal instrument within the part that refers to the Parliament, and not to the President of North Macedonia, which means that the right of veto first of all has a legislative function because it is one of the stages of the legislative procedure. It is interesting that, within the constitutional system of North Macedonia since its first President from 1991 onwards after independence from the former Yugoslav Federation, there is an unwritten rule according to which if the President of North Macedonia is close to the ruling parliamentary majority or acts as a duo with this majority, in the vast majority of cases, it does not use or very rarely uses the right of veto, and on the other hand, after the ruling parliamentary majority is changed, the duel between the new ruling parliamentary majority and the President also begins, therefore, presidential activism in the use of veto increases. This issue is very important because in the constitutional law and practice of relations between the Parliament and the President of North Macedonia there are four main constitutional gaps regarding the presidential veto, which promoted the views that without the signature of the president there are no laws otherwise such views in fact turn the weak presidential veto into a absolute veto or legislative sanction against the Parliament which is unacceptable in contemporary constitutional law. Therefore, the main purpose of this paper is through the teleological method of interpretation of constitutional norms as a whole and in close correlation with the guarantees of fundamental freedoms and rights and rule of law principle as well as through regional comparative constitutional analysis to reach an adequate and effective constitutional solution to such constitutional gaps and cases.

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Constitution and the institutions, the benign nexus is on fall: a comparative study of India, Nepal and Myanmar

Author(s): Subhankar Khan,Swargodeep Sarkar / Language(s): English Publication Year: 0

A society constitutionally manifested, where institutions for it stands inevitably the major organs, voice of the people resting through it usher to be the ethos of democracy at large. Leon Duguit in his saying of “social solidarity” asked for the interdependency, and to it anything stand against shall be the reason of rejection for the initiatives. India, Nepal and Myanmar, are of the fact witnessing bitter for the said principle, not satisfying the institutions in work of their absolute veneration, rather from their imbedded values they are in strips. The paper in its endeavour would in roll to assess different of the institutions in work for the countries named, where for the world at large a significant social solidarity is in need to hammer the knock on power, to which challenges and imperils for the citizenry rest at large. The methodology for the paper is doctrinal, which the author in assessing the institutional works of the countries will employ, where crisis of the present times, constitutional provisions in strip and jurisprudential approach for the democracy, would be the part of analogy.

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Settlement of disputes in HoReCa (food and hospitality field)

Author(s): Laura Ramona Nae / Language(s): English Publication Year: 0

As the HoReCa industry has been developed, by improving the quality of products and services offered, the number of customers and beneficiaries in bad faith - bad payers - has also increased. The present paper, as it is entitled, presents the most common aspects in practice, which the field of HoReCa faces, in case of non-compliance with the contractual obligations of customers/beneficiaries. In this sense, we highlight the possibility of resolving disputes in the mentioned field, by amicably settlement, in order to avoid as much as possible, the legal action in the court. From this perspective, the advantages and disadvantages of using this procedure are summarized.

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The inapplicability of personal exceptions between joint debtors and creditors, under Romanian and French private law

Author(s): Juanita Goicovici / Language(s): English Publication Year: 0

The paper examines the problematics of invoking personal exceptions between joint co-debtors and the creditors, while proposing a comparative approach to the incidental legal provisions and jurisprudential guidelines under Romanian and French pri- vate law. As stated in a recent decision of the French Court of Cassation (Fr. Cass., 2nd Civ., dec. of 20th May 2021), the guaranteed exception based on the existence of an insurance contract against the risks related to death, concluded by a co-debtor constitutes a purely personal exception to the latter, which cannot be invoked against the debtor by the coobligor jointly liable for the payment of the debt. On the other versant, the provisions of art. 1448 of the Romanian Civil Code omit to make express references regarding the inapplicability of personal exceptions between the joint co-debtors, postulating, in- stead, in the second thesis of art. 1448, para. (1) of the Romanian Civil Code that, against the common creditor, the joint co-debtor cannot use the means of defence that are purely personal to another co-debtor. Viewed in „parallel mirrors”, the provisions of art. 1313 of the French Civil Code capture the attention of the analyst by retaining that “Solidarity between debtors obliges each of those to pay the full amount of the debt. The payment made by one of the co-debtors is releasing the other co-debtors towards the common creditor for the paying of the debt”; following the desideratum to avoid bearing the risk of insolvency of other co-debtors by the debtor who made the payment, the French legislator provided, in the text of art. 1310 of the Civil Code, that such solidarity „cannot be presumed”, except for commercial relations.

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Aspects of comparative law regarding the regulation of civil procedural capacity in Romanian and Spanish law

Author(s): George-Bogdan Ionita / Language(s): English Publication Year: 0

This study aims to address an important topic of great interest, both from a practical point of view and from a theoretical point of view. The main objective of the research will materialize especially on the analysis of the current regulation of Romanian law (current Code of Civil Procedure) of procedural capacity, as an essential condition for exercising a civil action in court. Similarly, the research will seek to identify and analyze the provisions of Law no. 1/2000 on procedural capacity in current Spanish law. The study will also focus on identifying possible similarities and differences between the two regulations of procedural capacity, in order to provide a more realistic picture between the legislative approach of the institution in the two legal systems under study. In carrying out this research, mainly specialized works will be used, but especially the legislation in force regarding the procedural capacity, both in Romania and in Spain.

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The common Franco-German matrimonial property regime of the community of surplus

Author(s): Konstantin Keller / Language(s): English Publication Year: 0

On February 4, 2010, Germany and France signed an international treaty that broke new legal ground. The intention of both states was to introduce a new, common elective matrimonial property regime that would apply equally in both countries. This was implemented on 01.05.2013. The provisions of this elective matrimonial property regime are based primarily on the provisions of the statutory German matrimonial property regime, the “statutory matrimonial property regime of the community of surplus”, but also incorporate important elements of French matrimonial property law. Other EU member states can accede to the agreement as well. As a result of this matrimonial property regime, a common substantive law has been created in the contracting states, which has not yet existed in this form in the EU. The intention is to standardize the matrimonial property regimes within Europe.

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Legal regime of competition in Canada

Author(s): Ovidiu Horia Maican / Language(s): English Publication Year: 0

Canada’s Competition Act is the federal law governing most business conduct in Canada. It contains both criminal and civil provisions aimed at preventing anti- competitive practices in the marketplace. While the Canadian law is similar in many aspects with the law of the United States (the Sherman Antitrust Act) it is different in a number of important ways. One aspect is that Canadians use the term competition law rather than antitrust law, which is more common in the U.S.

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Preventive action on pollution of watercourses with waste – a comparative perspective of the main international, European and national regulations

Author(s): Cristiana Mic-Soare,Stelian-Mihai Mic / Language(s): English Publication Year: 0

The impact of pollution of watercourses with various types of waste – such as municipal, industrial or construction waste is often irreversible, the full restauration to the initial state of affected watercourses not being always possible. Thus, prevention manifested in relation to the pollution of watercourses with waste becomes essential, being fundamental for ensuring the protection of this natural resource. In this context, this study undertakes to identify the most relevant international, European and national regulations applicable to watercourses located on the Romanian territory, the purpose of which is to prevent pollution of watercourses with waste. The main conclusions reached by the authors are in the sense that, while the international regulations offer a framework in which general obligations for states materialising the prevention principle are affirmed, the European regulations set specific directions within this framework. Further, the Romanian national legislation includes numerous obligations that can be considered as representing components of the prevention principle; however, in the authors’ view, due to their fragmented character and lack of unity, they are not designed to offer a real protection against pollution of watercourses with waste.

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