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CITAREA ÎN ELABORAREA TEXTULUI-DESPRE-DREPT

Author(s): Dorin Jorea / Language(s): Romanian Issue: 3/2022

Citing your sources exceeds the mere intellectual fair-play assumed in academia, being today both an ethical and legal duty. How do we cite all our sources, and, remaining in the fair-play field, why should we? We don’t intend to analyze only the differences in dealing with different terms: citing, quoting, and referencing. We intend to search for the principles and international standardized rules for referencing information resources. Our goal Is to extend their use in Romania, in the field of legal writing. This work must be done due to the heterogeny of sources used in the digital age.

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ПРАВО ЗАСТУПНИКА НА ПРОВИЗИЈУ И ПОСЕБНУ НАКНАДУ У НАШЕМ И УПОРЕДНОМ ПРАВУ

Author(s): Vesna Besarević / Language(s): Serbian Issue: 3-4/1985

Agents may effect three kinds of allowance on the ground of their representative activity, namely the right of the agent to commission in course of validity of the agency contract; the right of the agent to commission after the expiration of the agency contract; and the right of the agent to special allowance in case of rescission of the agency contract. The right of the agent to regular commisson is recognized in all systems of law, but there exist differences in legal approaches and conception. Thus in Yugoslav law the agent acquires the right to commisson when the third party discharges the contract, while in other legal systems it is provided that the agent acquires his right to commission at the moment of entering into valid contract with the thir party, or only for perfectly effected transactions. The reasons for non-implementing the contract influence the realisation of the right of agent to the commission. In comparative law the agreed upon agency commission is guaranteed, while according to Yugoslav law it is possible to lower down the amount of commission. After the expiration of the agency contract (due to the lapse of time or after the agreement to that respect between the parties), the person granting the authority may enter into contracts and engage in business transactions otherwise due to the merits of the agent. Yugoslav law is not quite clear in this respect, providing instead that the agent could eventually set up his request for payment of a fee only if the person granting the authority rescinded the contract without sufficient legal ground. The Decree on Business of Representing Foreign Firms in Yugoslavia provides for the right of the agent to commission to cover specific period of time after the expiration of the agency contract, but for the transactions otherwise undertaken by him already in course of validity of the contract. In the countries which accept the European continental system of law, the legislation covering agency in trade provides in addition to the agency commission, the right to special allowance due to the rescission of the agency contract. Similar legal regulation is found in some developing countries, such as Kuwait and Saudi Arabia. Yugoslav law, in addition to the regular commission, whose amount may be challenged by the party granting the authority, does not guarantee the agent's right to commission after the expiration of the agency contract and does not provide for a right to special allowance in case of the rescission of contract.

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LEGAL REGULATIONS OF ENFORCEMENT PROCEDURE IN SELECTED FOREIGN JURISDICTIONS

Author(s): Markiyan Malskyy / Language(s): English Issue: 1/2022

This article provides a brief comparative analysis of the peculiarities of the enforcement procedures in selected foreign countries and jurisdictions with various legal systems, including France, the United Kingdom, Belarus, Kazakhstan, the Baltic countries, as well as research into the organizational structure of their enforcement agencies. The article also provides an analysis of the diverse procedures applied in EU countries for enforcement of decisions of courts and other authorities in civil and commercial cases, including the European Enforcement Order, European Order for Payment, European Small Claims Procedure, as well as the procedure under the Recast Brussels I Regulation. The author’s objective is to consider the procedures of enforcement of Ukrainian court decisions in these countries, as well as to raise the issue of the possible application of these procedures in the relevant legislation of Ukraine and to provide material for further research and analysis of these options.

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Przeciwdziałanie marnowaniu żywności jako wyzwanie współczesności – studium porównawcze prawa polskiego i niemieckiego

Author(s): Łukasz Mikołaj Sokołowski / Language(s): Polish Issue: 2 (31)/2022

The considerations presented in this article are an attempt to compare and evaluate the manner in which Poland and Germany counteract food waste. Food waste is a global problem but measures to mitigate it should be taken already at the regional and even local levels. While Poland has implemented a specific legal regulation to control food waste, there is no such specific regulation in Germany. As a matter of fact neither in Poland nor in Germany nor throughout the whole EU there exist regulations that would make it possible to counteract food waste effectively and comprehensively. Moreover, without the participation and involvement of societies, no regulations will be truly effective because the largest proportion of the waste occurs at the food consumption stage, where the possibility of the legislator’s interference is very limited. The German initiatives and experience in this field may be worth following.

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УПОРЕДНО ПРАВО У ЛЕГИСЛАТИВНОЈ ДЕЛАТНОСТИ УЈЕДИЊЕНИХ НАЦИЈА

Author(s): Vida Čok / Language(s): Serbian Issue: 1-4/1983

A considerable part of contemporary international law originates from the United Nations legislative powers. This is how the United Nations proceed with the activity that before their foundation used to be slower, of more limited a scope and providing less results. Comparative law is nowadays taken as one of the important factors to change such state of affairs. When viewed from the legislative process within the United Nations, current international law often proves to be strongly influenced by respective solutions belonging to given legal systems of member states. The phenomenon cannot be denoted merely as a reception of current legal institutions, but primarily as a specific procedure aimed at taking a closer insight into comparative law instead, thus finding out the solutions approved as the best by as great a number of member states as possible. The author has therefore confined himself to examining this process of „searching for” adequate domestic legal rules, first with respect to drafting international legal rules and then to their implementation. The up to now carried out practice within the United Nations proves that the drafting process is proceded by that of gathering information on domestic legislation, the data processing, however, often being reduced to an informative level only. The similar is the case with the phase of treating implementation of enacted international legal rules. On the other hand, it is hardly arguable that comparative law plays a prominent role in the United Nations legislative activity. The former is a somewhat „invisible” part of that activity and it is quite obvious that the international legislator has not yet made most of ist potentials. Such procedure need not be taken as irreconcilable with the sovereignty of member states, because it is comparative law that makes a given legal rule of domestic law „denationalized” within the United Nations legislative procedure, even before the given domestic legal rule shall attain an international legal relevance. Besides, when utilizing the comparative law results, the United Nations are in a position simultaneously to draft a new international legal rule and to have indirectly prepared the necessary prerequisites for its effective implementation. This is how comparative law significantly contributes to carrying out one of the basic objectives of any organ (domestic or international, whatsoever) vested with legislative powers.

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THE BEST INTERESTS OF THE CHILD IN THE CASE LAW OF THE EUROPEAN COURTS: EXPERIENCE FOR EU MEMBER STATES AND CANDIDATE COUNTRIES

Author(s): Magda Japharidze / Language(s): English Issue: 1/2023

The protection of the rights of the child is a universal, global issue in the modern world. In a democratic society, a certain minimum standard of children’s rights protection must be warrantied and ensured regardless of national specificities. A number of international mechanisms have been created by the United Nations, the Council of Europe, and the European Union. The EU Member States jointly respect the universal values of human dignity, freedom, equality, solidarity, and democracy as adopted in the Charter of Fundamental Rights of the EU. An integral part of this standard is being developed through the relevant EU legal acts and caselaw. They form part of the general principles of EU law and should also be considered binding in the acceding countries. The role of the European Court of Human Rights, as well as the Court of Justice of the European Union, is essential in the interpretation of child rights in Europe and in raising the standard for their protection. The purpose of this article is a comparative study of the practice of two European courts on child rights, as well as the child rights protection system in Lithuania, a Member State of the European Union, and Georgia, a potential candidate country. This research provides conclusions as to what similar and different approaches exist in the two European courts and what is important for Georgia when approaching these standards in the process of European integration.

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O specyfice włoskich tekstów prasowych

Author(s): Dominika Dykta,Lucyna Marcol-Cacoń / Language(s): Polish Issue: 1/2022

The purpose of the article is to present the characteristics of the language of current Italian press texts. The theoretical issues were supported by examples taken from Italian newspapers. The problem of the language of Italian press texts was discussed, first, by Bonomi and De Blasi, whose works were the inspiration to write the present article. The operations like direct speech, borrowings from colloquial language, neologisms, anglicisms, collocations, frase scissa, dislocazione a sinistra and c’è presentativo were discussed. These measures are intended to simplify and make the language of the press more attractive, and thus make the Italian press language more accessible to the average Italian audience. This study may be of assistance, above all, to those students of Italian language who deal with the issues of translation of press texts during their classes. Some selected linguistic phenomena, supplemented by examples, have been chosen in such a way as to develop the reception and production of the press texts in the Italian language.

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Koncepcja zmowy przetargowej na gruncie postępowania o udzielenie zamówienia publicznego

Author(s): Cyprian Herl / Language(s): Polish Issue: 11/2022

Tender collusion belongs to a wide group of anti-competitive practices aimed at unfairly influencing the Employer’s decisions regarding the selection of the best offer. The purpose of this article is to examine the legal nature of tender collusion and to indicate its legal basis, both on the basis of national and EU regulations. Next, the author characterizes the most common forms of anticompetitive agreements, basing his analysis on the jurisprudence of the National Appeal Chamber and the studies of the Organization for Economic Cooperation and Development. In addition, this article presents analytical methods and evidence means by which it is possible to prove the existence of an unfair agreement. The culmination of the work is a detailed analysis of one of the judgments of the National Appeal Chamber, which was carried out due to economic and family ties of several contractors participating in the procurement procedure.

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Statutory dispute resolution. The british perspective

Author(s): Richard Bailey / Language(s): English Issue: 1/2016

This is a paper given to the Romanian Society of Construction Law at their inaugural conference from 19 to 21 March 2015. The purpose of this paper is to introduce the participants at the conference to statutory dispute resolution in the United Kingdom. Statutory adjudication, which was introduced by the Housing Grants, Construction and Regeneration Act 1996 and came into force for all construction contracts in the United Kingdom entered into after 1 May 1998 has been a highly successful method of resolving disputes in the construction industry. The author is someone who has been heavily involved in adjudication. This paper introduces the delegates to adjudication and strongly recommends that they give consideration to it as a way and means of resolving disputes in the construction industry quickly. He also looks briefly at dispute boards and how in the UK dispute boards can be compatible with the requirements of the Housing Grants, Construction and Regeneration Act 1996 (as recently amended in 2011).

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Forest protection in China and Bulgaria: A comparative legal analysis

Author(s): Georgi Bakyov / Language(s): English Issue: 2/2022

Forest protection represents a significant phenomenon, a legal and social principle in itself, related to the larger aspiration of humanity to achieve an ecological balance of anthropogenic activity and sustainable development. With the present study, we will analyse an interesting problem related closely to environmental protection. Bulgaria and China are characterized by a significant percentage of afforestation in their territory. Forests in China vary between 21 and 24 percent, while in Bulgaria they reach 36 percent. The principles of regulation of forest protection in China and Bulgaria share some common features, but also hide their peculiarities. With this research, we set the following predetermined goals: to give a basic idea of the legal framework in each of the countries related to the protection of forests; to indicate the main principles that determine the legislation in the area; to indicate the best examples of their comparable features.

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Polski model regulacji monitoringu służbowej poczty elektronicznej na tle porównawczym

Author(s): Maciej Jakub Zieliński / Language(s): Polish Issue: 1/2023

The article attempts to reconstruct the Polish regulatory model for the monitoring of business e-mail. In the author’s opinion, this model is primarily determined by the premises for the application of this form of employee control. They incorporate nodal ideas for the control of electronic communication tools made available to employees; and can also be used to decode important indications about the acceptable forms of such monitoring and the very essence of it. While analyzing the Polish regulatory model of business e-mail monitoring, the author uses arguments of a comparative nature, bearing in mind that the regulations concerning their subject matter have been introduced into the Polish legal system in order to adapt it to the requirements of provisions on the protection of personal data which are of uniform for the entire European Union.

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Circumstanțele atenuante și agravante în dreptul penal francez

Author(s): Vasile Coman / Language(s): Romanian Issue: 08/2023

The institution of mitigating and aggravating circumstances represents one of the main pillars of the judicial individualization of the criminal sanction in any modern criminal law system, to which the European law is not an exception. A representative system is that of the French criminal law, which combines a pragmatic thinking developed and verified over time with the help of jurisprudence, through the manner of regulating the circumstances of personalizing the punishment, succeeding in harmonizing the need for criminal repression with the exigences associated with this mission – legality, humanism and sufficient freedom for the courts in the reasoned choice of the most suitable sanction, in terms of nature and amount, adapted to the circumstances of commission specific to each case and to the person of the perpetrator.Unlike the Romanian criminal law, in the French law there are noted a few differences, among them being the fact that, as a result of the suppression of the special minimum of punishments, the mitigating and aggravating circumstances are no longer regulated separately in the Code, but only specifically in the general and special part, similarly to the legal causes for mitigating the punishment, respectively the relapse, considered the main aggravating circumstance. In essence, the personalization of the punishment is achieved mainly through the individualization criteria regulated in Article 132 of the Code, the French legislator autonomously also regulating the restorative purpose of the punishments, achieved through the institution of the reparative punishment (sanction-réparation), with a predilect echo in the phase of pronouncement and execution of the judgement.

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Dreptul editorilor de presă în spațiul european. Un exercițiu urmuzian

Author(s): Nicoleta Rodica Dominte / Language(s): Romanian Issue: 2/2023

The presentation will focus on evoking some fragments of an exercise to transpose the provisions of art. 15 of the content of Directive no. 790/2019 on copyright and related rights in the digital single market. The imprint of each European national legislator in understanding and preserving the legal essence of the provisions of art. 15 has created numerous debates and inconsistencies in the definition of the concepts. France was the first member state of the European Union, which outlined in the context of national legislation the right of press editors, while Italy and Spain reveal the imperfections of harmonization at the national level.

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UGOVOR O TIMESHARINGU

Author(s): Belma Kokić / Language(s): Bosnian Issue: 31/2022

A timesharing contract with all its specifics and elements is a sui generis contract. Given that it has elements like other national law treaties, and that it belongs to national consumer and obligation law, at the same time it is regulated by EU regulations, which is why its characteristics deserve special attention and processing. As tourism plays an increasingly important role in member states' economy, the sectors of timesharing and similar holiday products should have been encouraged to increase growth and productivity by adopting certain common rules that would apply to all timesharing contracts and similar holiday products. On 14 January 2009, the EU adopted Directive 2008/122/EC on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts. In relation to Directive 94/47/EC, the new Directive is a directive of maximum harmonisation, which ensures equal treatment of sellers in all Member States, which contributes to greater legal certainty of both consumers and sellers. Analyzing EU legislation, legislation of modern countries in which the timesharing agreement is widespread, and the final analysis of the positive legislation of BiH in which this contract with all its elements begins to appear in practice, it is concluded that it is inadequately regulated by the existing Law of consumer protection. It is necessary to align the contract with Directive 2008/122/EC, which we are obliged to implement, since the Stabilisation and Association Agreement has committed to harmonize our legislation with eu legislation.

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Доказателствената тежест в немското право: някои възможни изводи

Author(s): Anastas Punev / Language(s): Bulgarian Issue: 2/2023

The article analyzes how the rules on burden of proof are interpreted and applied according to the understanding of German civil procedure.Through a comparison alongside the relevant provisions in Bulgarian law, it is determined what the concept of burden of proof consists of, as well as how it should be allocated and what are the exceptions to the default rule. A conclusion is reached that in Germany, similarly to Bulgarian procedural law, there are serious doubts about the allegedly “obvious” rule, provided in Art. 154, para. 1 of the Bulgarian Code of Civil Procedure. The system of evidentiary reliefs is further analyzed, as well as the manners in which the burden of proof may be reversed. Through numerous examples, a bigger picture for the understanding of the institute is formed, thus contributing to its correct application in Bulgarian context.

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Принципът на пропорционалност при съдебния контрол на ограниченията на основните права във Великобритания

Author(s): Maria Dimitrova / Language(s): Bulgarian Issue: 2/2023

The present article examines the development of the principle of proportionality as a tool for judicial review in the United Kingdom. Although the United Kingdom belongs to the Anglo-Saxon legal tradition the careful analysis would allow parallels with tendencies in the development of the principle in Bulgaria and would be useful for future research, related to the judicial review of the interference with human rights. Traditionally, the principle of proportio nality in the UK has been understood as a principle of reasonableness of an administrative act, later it has transformed into a more intense analysis of the reasonableness of the act (anxious scrutiny), and, finally, it has progressed to the constitutional principle of proportionality of interference with human rights in the context of the application of the Human Rights Act. Nowadays the English courts apply the principle of proportionality when they examine cases under the Human Rights Act. When examining cases outside this sphere, as a rule the courts continue applying the more traditional principle of reasonableness. This differentiated approach presupposes better understanding of the principle of the separation of powers and, also, ensures a structured and profound analysis of the legislative and administrative restrictions of human rights.

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The Construct of Strict Liability in Criminal Law of England and Wales in the Context of Polish Legal Regulations on the Subjective Element in the Structure of a Prohibited Act

Author(s): Andrzej Lewna / Language(s): English Issue: 2/2023

The construction of strict liability has been for years one of the most controversial concepts in the field of substantive criminal law in common law countries. While the very idea of basing the liability of an individual of a repressive nature on a regime based on strictly objective assessments seems to stand in opposition to the principles of criminal law that are fundamental to Western systems, such as the individualization of liability and the principle of guilt, at the same time, the use of the construct discussed may bring about considerable instrumental benefits, especially with regard to the protective function of criminal law. The article discusses the concept of strict criminal liability as developed in the system of England and Wales and presents the position that this concept occupies in relation to the classic for Anglo-Saxon countries, a two-element approach to the structure of a prohibited act, based on the correspondence of both objective and subjective components, and then transfers the considered problems onto the Polish criminal law plane in order to analyse the possibility of adapting an analogous construct in the statutory regulation of the subjective side of a prohibited act. In addition, the article presents the thesis that the advantages of strict liability may support the modification of the national approach towards a partial resignation from the requirements of the presence of a specific subjective element in the psyche of the perpetrator of a prohibited act in relation to all its objective features.

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The Development of Mediation in Poland and Ukraine: A Comparison and Prospects for Experience Exchange

Author(s): Anna Kalisz,Alina Serhieieva / Language(s): English Issue: 3/2023

Ukraine has become a candidate country for the European Union membership, which brings challenges, including those of a legal nature. One of such challenges is the regulation of the institution of mediation, which is a subject of interest to European institutions (both within the Council of Europe and the European Union) that actively promote methods of alternative dispute resolution (ADR methods). The aim of the article is to compare the current development of mediation in Poland and Ukraine, as well as to determine to what extent there are similarities in successes and challenges and to what extent the Polish experience could be helpful for the development of mediation in Ukraine. The essence of the problem is whether Ukraine shall follow Polish solutions in this area.

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RESTRICTIONS ON THE RIGHT TO CONCLUDE A PEACEFUL AGREEMENT IN THE CIVIL PROCEDURE OF POST-STATE STATES: COMPARATIVE LEGAL ASPECT OF RESEARCH

Author(s): Sibilla Buletsa,Vasyl Fennych,Ivan Yurash / Language(s): English Issue: 2/2022

In this article, the authors analyze the legislative restrictions of post-Soviet countries on the impossibility of exercising the right to conclude an amicable agreement in civil proceedings. An analysis of the normative enshrinement of these legislative restrictions and concluded that the legal institution of amicable settlement should be enshrined in the first sections of procedural codes with a detailed description of the amicable settlement procedure and reservations about the impossibility of this, as it belongs to the general part of civil procedural law. Such an approach will help to save the normative material in the codified act and adequately apply the institution of amicable settlement by all courts. Restrictions on the right to conclude an amicable agreement in civil proceedings by the authors are divided into three groups. These groups of restrictions on the right to conclude an amicable agreement are analyzed in terms of substantive and procedural law of post-Soviet countries, the practice of its application by the judiciary and the legal doctrine prevailing in the state. As a result of comparative legal research, it was concluded which restrictions on the right to conclude an amicable agreement should be left, and which should be abandoned or not allowed such wording.

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UNENFORCEABILITY - THE PAULIAN ACTION'S ADMISSION EFFECT

Author(s): Nicolae FALĂ,Mihail Poalelungi / Language(s): English Issue: 2/2022

The Paulian unenforeability is instituted as a sanction for the debtor's fraud. The Paulian unenforceability represents a remedy at the hand of the unsecured creditor against the acts signed by the debtor to his detriment. The unenforceability is intented to facilitate the access of the pursuing creditors to the benefit recieved by the third contracting party or beneficiary from the defaulting debtor. The object of unenforceability is always and in priciple a valid legal act. The unenforceability operates only in relation to the Paulian creditors, who avoid through this way, the competition of other creditors. The unenforceability thwarts the legal effects of the fraudulent act only in relation with the paulian creditors and only to the extent of the damage, manifested by preventing the full satisfaction of the creditor's rights toward the debtor. The elucidation of the legal nature of the paulian unenforceability, implies the analysis of the theories of the relative ineffectiveness of the fraudulent legal act. Pauline unenforceability is the technical mechanism by which the legislator, determining a priori the formula of bad-faith behaviour, deprives the bad-faith third party of the obtained advantage, to the detriment of the creditor, from signing the legal act with the debtor.

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