Après le déluge, nous

Author(s): Timothy Garton Ash / Language(s): German Issue: 01/1990

Former censors, former border guards, former apparatchiks, former secret police officers: what should happen to them? More specifically, what should happen to YOU, ONI, as the communist holders of power, big and small, were commonly called. It is a question of justice. At the highest level, it is the question of the Nuremberg trials. Should the men at the top be brought to justice for the crimes they have committed or those that have been committed among them? And if so, on what charges and according to which laws? At a lower level, it almost becomes a question of social justice. Is it fair, many wonder, that those who held comfortable office posts among the Communists still keep them today, while the little man has to tighten his belt? Is it fair that the members of the nomenklatura use the unclear legal provisions on privatization to take over as capitalists the companies that they previously commanded as communists?

1789-1917, Rückfahrkarte

Author(s): Francois Furet / Language(s): German Issue: 01/1990

The revolutions of the 20th century, which were carried out or forced under the sign of Leninist principles, left nothing to be rebuilt on. The revolution of 1789, fought under the banner of human rights, had often failed to follow its own principles due to its chaotic course; but she had staked out the terrain and defined the ideas that from then on governed modern politics for everyone, including their opponents. Even the counter-revolution still drew its temporary strength from the revolution. In contrast, the historical necessity of communism at the end of the 20th century turns out to be a catastrophic illusion. Not a single Leninist idea has stood the test of time, and the massive rejection of these ideas among peoples reveals nothing other than a simple return to the principles of 1789 - a return that will be all the more unwavering when the communist revolution once went against these principles. The suppression of the free market, the end of private entrepreneurship and the dictatorship of the unity party leave only illusions and ruins, a landscape that, especially where the regime was in power for a long time like in the Soviet Union, resembles a desert. The socialist states and societies offer the unique spectacle of nations that must restore at all costs what they thought they had to do away with, since in their recent past they no longer found a single principle on which to base themselves. This also gives her current situation something almost pathetic.

PROVOCĂRILE LIMBAJULUI ÎN CODUL ADMINISTRATIV

Author(s): Ovidiu Podaru,Maria-Mihaela Pop / Language(s): Romanian Issue: 1/2020

Recently entered into force, the administrative code was adopted with the stated purpose of unifying the regulations in the field of public administration, in order to create a normative framework, coming to the aid of individuals, public administration, but also of practitioners. In this respect, a significant part of the provisions were taken identically from the normative acts that were repealed, while there are also new provisions, some of them leaving, unfortunately, the impression of a code adopted in haste. Without claiming a thorough analysis of the entire regulation, the present study aims to address some of the challenges brought by the language used in OUG: 57/2019. Between the two extremes among which the legislator oscillates (either an incomplete or ambiguous language, or an over-regulation), the most relevant problem, in terms of the consequences that it can produce, probably consists in using already legally established notions, with a totally different meaning (such as, for example, the question of competence - exclusive, delegated or shared, or of the capacity or legal personality of public authorities). In addition to altering some already established rules or legal institutions, the code identifies in some places an unnecessary duplication of terms or the use of phrases that can completely change the meaning envisaged by the legislator; furthermore, the new normative act remains in debt (if it does not complicate matters even more) to clarify some problems previously identified by the scholars and the judicial practice (such as, of course, the role of the secretary in assessing the legality of the acts of the local public administration authorities or the majority necessary regarding the decisions related to the patrimony of the administrative-territorial unit).

Határon átnyúló öröklési ügyek a globalizáció korában

Author(s): Laura De Negri / Language(s): Hungarian Issue: 2/2019

The study deals with the most important rules of the European regulation on matters of succession, and attempts to demonstrate how the judicial cooperation is being realized in the European Union when it comes to succession-related issues. Furthermore, the study shows which mechanisms and alternatives are available in the European regulation for cases when the main rule cannot be applied. Through examples, it explores the fate of assets belonging to the legacy of the deceased person and takes into consideration the preconditions that the potential legal solutions are subject to. Finally, in the form of a comparison the study looks at the issues encountered when the law of a third country is at play besides that of an EU member state despite the fact that the effect of the European regulation on matters of succession does not extend to third counties. The latter is presented through the example of Serbia and the summary of the rules of the Serbian act on private international matters, which in some cases are incompatible with those of the European regulation on matters of succession, resulting in significant issues. In relation to this, special attention must be paid to the obsolete interpretation of the jurisdictional principles in the Serbian act on private international matters, which does not take into consideration certain current phenomena, namely, international migration and globalization.

Transnational Action and the International Legal System

Author(s): Gabriela-Alexandra Oanţă / Language(s): English Issue: VIII/2020

Current international society is characterized, among other things, by the coexis-tence of States with international organizations and various transnational actors and forces, such as transnational corporations, non-governmental organizations, indi-viduals, migratory flows, networks of influence and transnational opinion, international religious movements, illegal clandestine structures of a criminal or terrorist nature, etc. This article aims to analyse the place occupied by this transnational action in the contem¬porary international law.

Hardship in the Context of Law no. 52/2020 for Amending and Supplementing the Law no. 77/2016 on the Giving in Payment of Immovable Assets to Discharge Obligations Undertaken by Credit

Author(s): Maria Dumitru / Language(s): English Issue: 1/2020

The present article proposes a brief analysis of hardship given the amendments brought by Law no. 52/2020 to article 4 from Law no. 77/2016, taking into account the considerations of the Constitutional Court pointed out in two relevant decisions in this matter: Decision no. 623 of October 25, 2016 and Decision no. 731 of November 6, 2019. In the legislative context created by Law no. 77/2016 and made explicit by the Constitutional Court, the institution of hardship provoked numerous debates and dilemmas, especially the ones of a practical nature, which do not seem to be eradicated by the amendments brought by Law no. 52/2020, but on the contrary. The answer to the question whether by amending art. 4, two special cases of hardship were consecrated or two absolute presumptions were established, is the key to the interpretation and application of Law no. 77/2006 and even to the verification of its concordance with the constitutional provisions.The difficulty of identifying the unique answer urges a careful and prudent reading of the text of the law, in order to avoid possible hasty and possibly erroneous conclusions.

Socio-Legal Aspects Regarding the Institution of Adoption

Author(s): Dumitrita Florea,Narcisa Galeş,Loredana Terec-Vlad / Language(s): English Issue: 1/2020

In order to be able to analyze the institution of adoption, we must start from the definition of family. Although we live in an evolved society in which the priorities and accents are constantly changing, yet one of the most important things in our lives is still the family - the family in which we were born and raised, or the family we created. The notion of family can be viewed both from a sociological and legal point of view. In the sociological sense, the family, as a specific form of human community, designates the group of persons united by marriage, filiation or kinship, which are characterized by community of life, interests and mutual support. In this sense, it can be said that the family is a social reality through the community of life between spouses, parents and children, as well as other relatives. Within the family relations, moral, psychological, physiological and economic aspects appear between those who form the community of life and the interests. Family relationships have a character of complexity that we do not find in other categories of social relations. In the legal sense, the family designates the group of persons between whom there are rights and obligations, which arise from marriage, kinship, as well as from other relations assimilated to family relationships. In this sense, the family is a legal reality, by its regulation by law.

Chronologiczny wykaz najważniejszych aktów prawnych Unii Europejskiej dotyczących rynku telekomunikacyjnego (łączności elektronicznej)

Author(s): Mateusz Chołodecki / Language(s): Polish Issue: 1/2020

ALTERNATIVE DISPUTE RESOLUTION METHODS AND E-JUSTICE: SOLUTIONS FOR COURT SUPPORT

Author(s): Iulian Hagiu / Language(s): English Issue: XIX/2020

For the relief of the courts, for the speed of a court process, but also for saving the material and time resources of the parties involved, the alternative resolution of disputes through mediation and not only, is the efficient and correct solution that is required in this state of emergency in which we are.Alternative dispute resolution (ADR) procedures, such as mediation and arbi¬tration, provide alternatives to the trial. The European Union has encouraged the use of ADRs by adopting relevant legislation, such as Directive 2008/52/EC on certain aspects of mediation and a number of consumer protection initiatives.Technology can increase the efficiency and transparency of the judicial process and can facilitate the access of individuals to justice. The Court of Justice of the European Union (CJEU) has stated that "electronic means" cannot be the only means of access to proceedings, as this could make it impossible for certain categories of persons to exercise their rights.

Activitatea mercenarilor ca generator de riscuri pentru securitatea naţională a Republicii Moldova

Author(s): Alexandru Pareniuc,Vasili Beda / Language(s): English,Romanian Issue: 12/2020

The study represents an analysis of the mercenary phenomenon in terms of involvement in the respective activity of the citizens of the Republic of Moldova. In this regard, it is noted that the activity of mercenaries is a social-dangerous phenomenon, the effects of which have a considerable influence on national security, generating trends of instability including in the prevention and combating of terrorism and other violent manifestations of extremism. The research analyzes the main causes that determine some citizens of the Republic of Moldova to accept the proposal to be enrolled in unconstitutional militarized structures for participation in theatres of military conflict in eastern Ukraine, but also in other areas of military conflict around the world. Also, the investigation allowed us to ascertain that the issue of the activity of the Moldovan mercenaries is currently actual and requires the attention of law enforcement agencies in the process of capitalizing on extremist risks to state security.

Current law on general rights of agricultural land users in Vietnam: reality and issues that need modification

Author(s): Luan Nguyen Thanh / Language(s): English Issue: Special/2020

This paper focuses on analyzing and commenting on the content and practice of the current legal provisions on the general rights of land users in Vietnam, including: (i) the right to exploit and enjoy results brought from land, with the State creating maximum favorable conditions for land users realize the benefits from the land; (ii) the right towards adjoining immovable property; (ii) the State’s protection of land use rights. The article shows the good results that have been achieved, the constraints which remain and the shortcomings of the current legal provisions. On that basis, the article puts forth a number of proposals to amend and supplement these legal provisions to expand and further ensure the rights of entities in the exploitation and use of land in Vietnam, in accordance with the market economy.

BRIEF CONSIDERATIONS REGARDING THE EXECUTION OF THE INDIVIDUAL EMPLOYMENT CONTRACT IN THE CONTEXT OF THE ALERT CAUSED BY THE COVID-19 PANDEMIC

Author(s): Ana Vidat / Language(s): English Issue: 1/2020

Temporary/restrictive measures highlighted by the legislative context – necessary to prevent and eliminate imminent threats to fundamental rights and freedoms – also target the execution of individual employment contracts; the following categories of employers are covered by the present measures: those in the private system, central and local public authorities and institutions, regardless of the method of financing and subordination, as well as autonomous utilities, national companies, national companies and companies in which the share capital is wholly owned or majority state or an administrative-territorial unit.

UDRUŽENI ZLOČINAČKI PODUHVAT U PRAKSI MEĐUNARODNOG KRIVIČNOG TRIBUNALA ZA BIVŠU JUGOSLAVIJU

Author(s): Irena Čučilović / Language(s): Serbian Issue: 1/2021

Joint criminal enterprise (JCE) is the institute first applied by the International criminal tribunal for the former Yugoslavia (ICTY) in the Tadic case, and thereafter further shaped through the practice of the ICTY despite the fact that JCE as a form of individual responsibility is not mentioned anywhere in the Statute of ICTY, neither implicitly nor explicitly. Although today there is no doubt that the Joint criminal enterprise is an institute of international criminal law, which was very often applied in the practice by both ICTY and other international ad hoc tribunals, the serious remarks to this institute do not abate. It’s pointed out that this is an institute that “was created” to ensure the conviction of the defendants, which procedurally affects the prosecution, which is relieved of the burden of proving criminal responsibilities and the specific roles of each of the participants in the JCE. Besides that, at the time when this doctrine was formulated, it was not entirely clear whether it was a form of commission or a form of complicity. Only a couple of years later, in the Milutinovic et al. case, the ICTY stands out that the liability based on the JCE doctrine, in fact, is a responsibility for the commission, which further compromised this doctrine. Questionless, the application of the Joint criminal enterprise doctrine in practice leads to serious violation of the fundamental principles of contemporary criminal law. With general review of the Joint criminal enterprise doctrine, in this piece of work, the author considers one case of conviction under the third (often referred to as “extended”) form of JCE, in order to point out the key problems which this doctrine produces in practice.

Reforma Visokog saveta sudstva: rizik ili prilika za nezavisnost

Author(s): Dušan Radujko / Language(s): Serbian Issue: 19/2020

This paper presents an analysis of the High judicial council reform suggested in the final Draft amendments on the constitution of the Republic of Serbia. The paper attempts to answer the question whether the reform presents a risk for judicial independence, or an opportunity for further strengthening of this branch of government. On an established theoretical frame, the paper provides a comparative analysis of the proposed constitutional arrangement with the current arrangement in Serbia, as well as two cases from comparative practice which are distinguished by their independence. The paper finds that the reform does not present a risk for judicial independence, while at the same time finding that its limited approach to guaranteeing independence does not provide a foundation for strengthening the judicial branch.

Chronicle of Scholarly Events in Legal History and Roman Law Held in the Slovak Republic and the Czech Republic in 2019

Author(s): Adriana Švecová,Miriam Laclavíková,Ingrid Lanczová / Language(s): English Issue: 3/2020

Równowaga prawna w sporach zbiorowych. Uwagi na tle nowelizacji ustawy o rozwiązywaniu sporów zbiorowych

Author(s): Paweł Nowik / Language(s): Polish Issue: 2/2020

Problems of collective dispute focus on the issue of conflict of interest in the working environment. The subject matter of the paper is the issue of legal balance in industrial stalls. Therefore, the issues of the subjective scope of the Act on Resolution of Collective Disputes come to the fore. The above issue has been analysed by taking two perspectives: dogmatic (application) and theoretical-legal.

THE PRINCIPLE OF NE BIS IN IDEM IN THE CONTEXT OF EUROPEAN ARREST WARRANT: A VIEW OF THE JURISPRUDENCE OF THE EUROPEAN COURT OF JUSTICE

Author(s): Boris Tučić / Language(s): English Issue: 01/2021

In this paper, we analyze the most significant rulings of the Court of Justice of the European Union regarding the interpretation of the provisions of the Framework decision on the European arrest warrant which established the principle of ne bis in idem as one of the grounds for both mandatory and optional non-execution of the extradition request issued to the judicial authority of the executing Member State. Although the European arrest warrant is one of the most important mechanisms of cooperation in criminal matters between Member States, the provisions of the Framework decision that established the European arrest warrant as part of the EU law do not define precisely enough some of the key aspects of its implementation, leaving plenty of space for different interpretations and actions of national authorities, which in turn contributes to legal uncertainty and unequal application of the EU law within Member States. In this context, the European Court of Justice made some of the key points in the 2010 Mantello case and 2018 AY case, and primarily focused on issues related to the ‘’same act’’ category as one of the key criteria for applying the ne bis in idem principle in transnational context. The inductive-deductive method and content analysis were used in the analysis of the cases mentioned above.

Snaga tvrdnje i izvođenje sudskih zaključaka upotrebom logičko-psihološke metode i matematičkim modelovanjem

Author(s): Boro Krstić,Miroslav Komlenić / Language(s): Serbian Issue: 25/2021

The unjustifiability of complete and uncritical acceptance of empiricism or logical positivism in science, including legal, or in the search for truth in general, are often present and lead to incomplete practical outcomes. The aim of our paper is to modify the existing practice in order to reach the correct conclusion through sensory and empirical data taking into account the importance of consistencies of the system of claims and its measure in the overall strength of an individual claim. In order to properly understand the role of consistency, we demonstrated scientific realism and rationalism in the science of law, since in the judicial system the aim of judges is similar or the same as the aim of scientific work, which is to reach or establish the truth. In our research, we started from the real situation that the problem in forming a correct conclusion of a judge about the truth of a certain piece of evidence, i.e. about a certain system of allegations, is to some extent contradictory or inconsistent in the testimony of a witness or party. The paper creates an analogous logical-methodological and psychological-statistical model for determining the truth of a statement, or system of claims, i.e. explicates a formula in which the consistency and coherence of the system is evaluated differently in relation to empiricism, and which (consistency) is often underestimated in common sense and in the social sciences. The importance of the inductive-deductive method in the judge’s opinion is also explicit and the rudiment of a specific decision-conclusion model is stated, i.e. the analogy with inferential formulas is drawn, and statistical tests on the basis of which the credibility and strength of statements can be assessed. The results of our research show that the strength of the claim of one statement decision-making process in the court should be based on the dominance of positive data over contradictions, whereby the number of positive data should be at least two or three times greater than contradictions.

Transnational Law. Approaches and (Commercial) Origins

Author(s): Radu Bogdan Bobei / Language(s): English Issue: 24/2020

Transnational law, hereinafter ‘TL’, be it a real dream or a dreamed reality, is to be outlined in the light of some approaches and its origins. The paper addresses 3 (three) approaches of TL: the ideological approach (Section 1), the operative approach in its academic dimension (Section 2), respectively the operative approach in its non-academic and practical approach (Section 3). Furthermore, the paper addresses the private (and) commercial origins of TL (Section 4). In the first quarter of the 21st century, TL deployed its evolutionary nature. In order to deeply contemplate in future papers the stages of such TL’s evolutionary nature, the paper is suggesting for the time being a ‘Back to the origins of TL itself!’ demarche. It might be a chance to properly contemplate also in future papers the progressive nature of the transnational normativity itself, be it hard or soft. Such latter nature is permanently nurtured by the relationships evolved within the so-called ‘world society’. At least in the last 50-60 years, the world society detached the nations from the States themselves and from the Westphalian logic familiar with the nation-States only. The final remarks allow seeing, even briefly, that the newest TL, if any, amounts, at least in its commercial dimension, to TL in its oldest version of commercial dimension itself (Section 5). The so-called ‘circle, if any, of TL’ in its commercial dimension is fully and perfectly closed; the newest and the oldest lex mercatoria are sharing the same core idea - that is the worldwide merchant’s common sense in doing business.