Cultural contextualization of modern liberal constitution

Author(s): Dan Claudiu Dănişor / Language(s): English Issue: 02/2022

The cultural contextualization of the ideal-type of the modern liberal constitution was and is made against imperial metaphysics, by overcoming the rule of law constituted by absolute monarchies and moving to a qualitatively superior cultural phase, that of the rule of law and in opposition to the totalitarianisms of the last century, which aimed to create a perfect society by establishing an anti-perfectionist constitution. Opposition to the imperial constitution makes the fundamental features of modern constitutions their revolutionary character, that is, in legal terms, reviewable, the fact that only self-centred societies can establish such a constitution, and the fact that constitutional law transforms from a form of stabilization of the existing order in a form of foundation of the future. Opposition to the absolute monarchy or the lack of the stage of absolute monarchy in the evolution of that society led to the split of Western legal cultures and the creation of two distinct models of the rule of law. Finally, opposition to totalitarianism has led modern constitutions to emphasize their liberalism, postulating the individual as the goal of any social system, the priority of freedom over power and the general interest, and the priority of the right over the good.

Congress’ obligation to call a convention of states under Article V of the United States' Constitution

Author(s): Tomasz Wieciech / Language(s): English Issue: 02/2022

Under Article V of the United States Constitution Congress is required to call a convention to propose amendments to the Constitution whenever two thirds of states legislatures so apply. The exact nature and extent of Congress’s authority granted by this provision of the Constitution are, however, unclear. The most contentious questions are whether Article V gives Congress legislative authority to establish rules governing the convention of states process; whether they can scrutinize states’ applications and make final decisions regarding their validity, and to what extent the Constitution authorizes federal legislature to control organization of a convention of states and its deliberations. There is no ready answer to neither of these questions, yet they need to be addressed to properly establish what does the obligation to call a convention of states put upon Congress by the Constitution actually entail. The prospect of such a convention may still be dim, still in recent years the alternative route to amend the Constitution has certainly attracted new attention. The extent of Congress’s authority under Article V has never been firmly established. In this article we argue that congressional powers regarding convention of states process are strictly limited. To support this conclusion we rely on textual, historical, and structural arguments.

Transformation and Growth of the Coercive Apparatus in Putin’s Russia

Author(s): Konrad Kołodziejski / Language(s): English Issue: 78/2022

The article describes the transformation of the Russian coercive apparatus (comprising security services and the military) after Vladimir Putin came to power. The different forces charged with ensuring domestic and external security of the state are one of the cornerstones of Putin’s presidency. The first stage of the changes saw them consolidated and brought under tighter control of the president’s camp, whilst during the second – following Putin’s re-election as president in 2012 – they were much expanded and modernised. Looking mainly at the normative acts from that period, the article discusses the scope and nature of these changes as well as their wider political context related to the development of a centralised, authoritarian power system in Russia. It also focuses on the parallel process of changes introduced in the prosecutor’s office and the justice system whose aim – like in the case of the coercive apparatus – was to extend the power of the president and strengthened the state’s control over society.

Elementy historycznoprawne w antyukraińskiej propagandzie Federacji Rosyjskiej w latach 2013–2022

Author(s): Lena Fijałkowska / Language(s): English,Polish Issue: 124/2022

Background: The subject of the analysis are the legal and historical arguments used in the propaganda campaigns against Ukraine.Research purpose: The aim of the study was to determine how history is used in the information war with Ukraine, on which events the Russian historical narrative focuses, and what demands and aspirations it justifies. Methods: The research was based on the analysis of the literature and the Russian president’s speeches and statements as well as the propaganda content of Russian media.Conclusions: The analysis showed that legal history is an essential tool in the information war against Ukraine. The Russian narrative focuses on those events that can be interpreted in such a way as to emphasize the eternal unity of the Russian, Ukrainian and Belarusian nations, while negating Ukraine’s full independence. The territory seized in 2014 is considered historically Russian, and Russia’s imperial past serves as a justification for the creation of a zone of influence that covers the post-Soviet area. In turn, the resurgent fascism in Ukraine, the proof of which is the cult of Stepan Bandera justified the aggression in 2014 and in February 2022.

The effect of global warming in Nigeria: Flood in perspective

Author(s): Adeola Olufunke Kehinde / Language(s): English Issue: 124/2022

Background: Global warming is the world phenomenon and its effects cannot be overemphasized. In Nigeria, the effect of global warming is being experienced on a daily basis as a flood which is one of its effects is now the order of the day in some parts of the country. In Nigeria, the body responsible for taking necessary actions during an emergency situation called The National Emergency Management Agency (NEMA) warned in 2014 that some states across the country would experience flooding and they did. The same warning came from the body in the year 2015, and of course flooding affected the concerned states same has been happening on a yearly basis across the country. As can be seen in Nigeria, many lives have been lost to a flood which is related to global warming. Some families have perished while some have been rendered either fatherless or motherless. Some have also been rendered homeless and their property has been destroyedas a result of the flood. This article examines some causes and effects of the global warming in Nigeria, while paying particular attention to floods as one of its effects.Research purpose: The purpose of the article is to answer the question why is Nigeria so much affected with the effects of global warming especially flooding.Methods: This article relies on both primary and secondary research sources. Various laws regulating environmental protection, both local and international, were considered. The Internet sources as well as Nigerian newspapers articles related to the research topic are also essential to this work.Conclusions: It has been observed that there are inadequacies in the existing laws regulating environmental protection. The article recommends the application of the new regulations ensuring adequate environmental protection, especially to tackle the flood menace in Nigeria.

Nevenko Misita: Osnovi prava Evropske unije, drugo izmenjeno i dopunjeno izdanje, Sarajevo, 2007, str. LXXXV, + 952 stranice, bibliografija 911-942, registar pojmova.

Author(s): Radovan Vukadinović / Language(s): Serbian Issue: 1/2012

A gyermekkeresztség megengedettségi feltételei: a szülők erkölcsi életének kérdése

Author(s): László Bakó / Language(s): Hungarian Issue: 1/2022

The present paper discusses the conditions for liceity of infant baptism in the case of parents whose moral life has deviated from the moral norms of the Church. We examine the situation of parents living together, divorced and (re)married only in a civil marriage and some other „irregular” difficult cases, such as people living in non-heterosexual partnerships and/or those from the LGBT community. This article focuses primarily on updating the Church’s legislation in this regard, analysing and evaluating it in the light of the difficult situations of the families today. In doing so, I endeavour to interpret the requirements for the liceity contained in the §1 of can. 868 of the 1983 Code of Canon Law (CIC/1983) in such a way that they can be applied to the irregular situations of families in today’s society. At the end of the study, I conclude with a recommendation: with a differentiated baptismal practice the priests could adequately distinguish between situations, evaluating each case individually.

Lines of Interpretation for the Definition of a Household under Harmonised Excise Duty Rules in the Light of the Decisions of Polish Tax Authorities and the Case-Law of Polish Administrative Courts

Author(s): Monika Münnich / Language(s): English Issue: 3/2022

This article provides only a small contribution to the inevitable scholarly discussion on whether excluding the primacy of the literal rule in favour of the priority of a pro-EU teleological interpretation in the judicial and administrative applications of Polish tax law is really reasonable. Firstly, this article sets out to discuss the stages of the transposition of the concept of a household from EU legislation into the provisions of the Excise Duty Act. Secondly, it presents the evolution in the lines of the interpretation of this term as used by tax authorities and national courts. Thirdly, it demonstrates the negative legal and fiscal consequences that are caused in practice by the definition of this term as framed by the Polish legislator.

Zwolnienie stypendiów z PIT a warunek ich zatwierdzenia przez ministra właściwego do spraw szkolnictwa wyższego i nauki. Glosa krytyczna do wyroku NSA z dnia 4-11-2020 r., II FSK 1774/18, LEX nr 3079981

Author(s): Paweł Smoleń,Marzena Świstak / Language(s): Polish Issue: 3/2022

The Polish Personal Income Tax Law provides for a relatively extensive group of tax exemptions related to various benefits offered to doctoral students and academics. It also includes an exemption for scholarships and assistance grants referred to in Law 2.0, as well as scholarships received under programmes or projects aimed at implementing the current state scientific policy. The rule adopted is that the exemption applies as long as the rules for granting the scholarships and grants in question them have been approved by the minister in charge of higher education and science. The research objective adopted in the gloss is to verify the jurisprudential practice regarding the issue of the tax exemption in question. The analysis and evaluation have been performed also in the context of the guidelines and ideas behind the reform of higher education and science (regulations of the so-called Law 2.0). This gloss is a critical commentary. It makes use of dogmatic-legal and normative analysis.

Prawo pracy i prawo administracyjne a prawo urzędnicze w Polsce

Author(s): Mariusz Wieczorek / Language(s): Polish Issue: 3/2022

The restoration of public service in Poland has been a major factor contributing to a more intense research into the legal nature of employment relationships in public administration. The framework for the debate, in legal terms, is determined by the concept of the civil service law, whose objective scope and place in the legal system are not universally accepted. Therefore, the civil service law is treated as part of the labour or administrative laws, with views in this respect demarcated primarily by a researcher’s field of specialisation. This paper is a voice in the debate about the attribution of the civil servic law to a branch of law. The basis of entering into a legal relationship is assumed to decide its classification to the labour or civil service law. Hence, the contract of employment, designation, appointment, and selection are analysed as acts creating the legal relationships of employment. The research implies the civil service law is part of the labour law, while the relationships of employment it governs are special, given the type of work provided by those subject to the civil service law

Despre limitele reglementării funcţiei şi răspunderii administratorului societăţii pe acţiuni

Author(s): Ioan Schiau / Language(s): Romanian Issue: 02/2022

The legal identity of the administrator of a company with special reference to the one who manages the joint-stock company, as they are regulated by Law no. 31/1990 of companies (LS or the Companies Law), is uncertain, insufficiently defined and, in some respects, obsolete. As there is much to be said about the inadequacy of the current regulation, this study will be limited to addressing some topics related to (a) the source of the administrators' powers, de lege lata and de lege ferenda, (b) the legal identity of the administrators and (c) the limits of the liability of the administrators of the joint-stock company managed in a unitary system, who have delegated the management of the company to its directors.

Provocări teoretice şi practice privind noua lege a registrului comerţului nr. 265/2022

Author(s): Smaranda Angheni / Language(s): Romanian Issue: 02/2022

One of the pieces of legislation with particular theoretical and practical implications adopted in July 2022 is Law 265/26 July 2022 on the trade register and for amending and supplementing other legislation affecting the registration in the trade register, which transposed into Romanian law Directive (EU) 219/1151 of the European Parliament and of the Council of 20 June 2019 amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in the context of company law. The general remark that we highlight is that, although the new law on the trade register was adopted in order to transpose into national law a European Directive on companies, however, in the current regulations there is no term "companies", only companies. Also, the concept of "trader" does not exist from a terminological or notional point of view, the legislator preferring to use the terms "professional", "economic operator", bypassing the term "trader" although the register is of "commerce". The theoretical and practical challenges of the provisions of Law No 265/2022 are inherent in the complexity of such a piece of legislation, challenges that arise when interpreting and applying these regulations.

Scurte consideraţii referitoare la unele modificări aduse legii societăţilor prin noua lege privind registrul comerţului

Author(s): Ciprian Manole Popa / Language(s): Romanian Issue: 02/2022

Law no. 265/2022 on the trade register brings a series of changes not only in the matter of the trade register, but also in the matter of companies. The present paper aims to analyze some of these changes. In the case of the limited liability company, it is about new rules regarding the payment of the social capital at the establishment of the company and the adoption of decisions within the assembly of associates. These changes were not justified, nor do they seem to have any utility whatsoever. With joint-stock companies, it is about their classification into open companies and closed companies, a mention that must be included in the articles of incorporation. The legislator's intention was good, but the lack of a legal definition for these types of companies makes this classification inapplicable.

Măsura şi specificul derogărilor legislaţiei insolvenţei de la dreptul comun al contractelor: denunţarea contractelor în derulare

Author(s): Simona Maria Miloş,Andreea Deli / Language(s): Romanian Issue: 02/2022

Given its dynamics over the last few years, the insolvency has already lived up to its qualification – initially quite fresh and interesting – as the „law of collective interests”, that is to say, the law that offers protection to collective interests, sometimes to the detriment of the individual ones, which gives us an idea about the substance and extent to which the insolvency law departs from the common law. Although it uses an expression related to a legal notion sanctioned by the common material law, the termination of contracts in insolvency largely departs from that notion, precisely with the justified purpose of optimizing a collective protection by fulfilling an economic function. Hence, the practical difficulties one can be facing, spanning from the legal subject matter of the oppositions that may be filed, the activation or not of the termination clause through to the complicated issue of the contents and limits of indemnities that may be granted to the contracting parties. This report attempts at leveraging the solutions shaped by the case law over time, which introduced significant landmarks in the specific legal construct, which is the termination in insolvency, as well as some good practice elements, precisely to outline fair solutions, likely to repair the manner in which insolvency seems to continuously reshape traditional civil law notions.

Obligaţia de înregistrare în registrul comerţului a menţiunilor privitoare la procedurile de prevenire a insolvenţei

Author(s): Nicoleta Ţăndăreanu / Language(s): Romanian Issue: 02/2022

The year 2022 was the year of the adoption or amendment of two important normative acts. First, Law no. 265/2022 regarding the trade register and for the modification and completion of other normative acts affecting the registration in the trade register. The second, Law no. 216/2022 amended Law no. 85/2014 on insolvency prevention and insolvency proceedings. What we propose in this article is to establish which mentions related to the subjection of a trader to an insolvency prevention procedure – the preventive concordat and the restructuring agreement – must be registered in the trade register, through the lens of the two normative acts. It is about entering the mentions regarding the „status” of the trader obliged to register in the trade register.

Încetarea unilaterală ori adaptarea contractelor comerciale în contextul unor crize majore

Author(s): Gheorghe Buta,Ionut-Vlad Musca / Language(s): Romanian Issue: 02/2022

The pandemic, macroeconomic and geopolitical developments of the past two years have led to the emergence of several overlapping major crises. These crises are also beginning to show their effects on commercial relations, especially those governed by continuing contracts. In this article we will seek to identify the main major crises affecting the domestic commercial landscape. We will try to give a legal qualification to the effects produced by these crises, aiming of course in our analysis to see what are the fractures that appear in the contractual architecture. The legal remedies available to economic actors in this context are also part of our analysis. The approach will be one with a higher degree of abstraction and generality in the first part of the paper, following that in the second part, our analysis will focus on two specific areas, where we have identified a very high direct impact of the emergence of major crises: the provision of electricity respectively the sale of motor vehicles.

Exigenţele realităţii şi norma de drept; pledoarie pentru reglementarea distinctă a raporturilor comerciale

Author(s): Adrian Severin / Language(s): Romanian Issue: 02/2022

Beyond crises of a different nature, systemic or adjustment, five crises of law can be identified, namely: i. over-regulation/normative excess (effect of the technicalization of law, political voluntarism, and the reduction of the space for individual freedom); ii. legislative instability (effect of legal voluntarism which, among other things, denies the existence of legal constants); iii. legislative cannibalization of law (the science of law is denied by legislation and is swallowed up by it); iv. ideologizing the legislation (separating the law from the objective legalities of the field to be regulated and concealing its constants); v. the „penalization” of law (the repressive conception in the ordering of social relations prevails over the permissive conception). The refusal to recognize the specificity of social relations having as their object the exchange of values for the purpose of obtaining profit, for them to be disciplined by specific norms, is an expression of the respective crises. The socio-economic and political crises that already affect the national communities, but also the international community, demand the appropriate intervention of the political factor through the instrument of legal law, as well as through that of judicial practice, in such a way that the subjects of civil law, concerned with the satisfaction of existential needs under the conditions of minimizing any risks, to be protected, without this inhibiting the assumption of risks by the subjects of commercial law, interested in accelerating the circulation of capital and thus in maximizing profits. A hyper-protection of civil law subjects will prevent the resumption of economic growth, which is in everyone's interest. Tolerating the excess of dominant position of commercial law subjects will lead to socio-political instability likely to deepen the economic crisis. Times of crisis are times of increased risk. Risk-taking by those involved in the exchange of values must be rewarded. The unilateral transfer of risk by those who have dominant positions (e.g., banks, lessors, energy suppliers) onto the shoulders of those who do not have such positions (e.g., borrowers, lessees, energy consumers) must be prohibited. The solution of such systems of equations requires not only the distinction between civil and commercial law (in the first case, looking at the static security of the circuit of values, and in the second, its dynamic security), but also that between law as a science and law as legislation. Science must precede legislation. The „rule of law”, which means „nihil sine lege”, cannot be real if it is not associated with the maxim „nihil sine iure” and is not subordinated to it. In this sense, commercial law is not the sum of rules derogating from civil law provisions, but a distinct, coherent branch of private law.

Conferința Națională Stanciu D. Cărpenaru ediția a II-a Dreptul Comercial si Provocările Crizelor Contemporane

Author(s): Author Not Specified / Language(s): Romanian Issue: 02/2022

La data de 22 noiembrie 2022, Revista Română de Drept Comercial, Facultatea de Drept a Universităţii din Bucureşti, Institutul Român de Drept Comercial, Academia de Ştiinţe Juridice din România şi Editura Universul Juridic au organizat Conferinţa Naţională de Drept Comercial – Stanciu D. Cărpenaru, Ediţia a II-a, 2022 cu titlu „Dreptul comercial şi provocările crizelor contemporane”.

The Victim of Crime Between Oblivion and Protagonism

Author(s): Maristella Amisano Tesi / Language(s): English Issue: 02/2022

The crime doesn’t constitute a bilateral relationship, between the offender and the victim or between the State and the offender, rather is a trilateral relationship, between State, offender and victim. So, no rights of the involved partied should be denied. The victim’s rights and the active participation in the trial can’t be neglected, but the victim-paradigm, which is the result of an emotional criminal law, can’t be abused. It’s necessary to find a difficult equilibrium. Through an historical reconstruction of the condition of the victim and its guarantees in the Italian penal system, we will be able to discover the balance point found today. A new reform in the Italian criminal system accepts the challenge of the restorative justice, which is not only a kind of compensation, but which constitutes a real sanction, overturning the traditional system of punishment.

Protection of Victims of Psychological Abuse as Type of Domestic Violence in Criminal Procedure

Author(s): Jasmina Igrački,Marina Brašovan Delić / Language(s): English Issue: 02/2022

Nowadays, domestic violence is a generally recognized and widespread phenomenon in every society. In this paper, the authors analyzes psychological abuse as a type of domestic violence. Available statistical data in the Republic of Serbia for 2019. show a high frequency of psychological violence by partners. Emotional abuse is reported equally by women and men. Thus, out of 62% of different forms of violence against women, even 44% is psychological violence by an intimate partner. In 2019., 48% of women aged between 26-64 suffered some form of psychological violence, compared to 50% of men in the same age category. In terms of the consequences that a person experiences, psychological abuse can be as harmful as physical violence or even more. Recognizable forms of physical violence are hitting, pushing, arm twisting, etc., while psychological violence uses other methods and is often difficult to recognize as it is challenging to prove its manifestation. As one of the goals of criminal law is to provide legal protection to the victim of a criminal act, that goal can be adequately achieved only when psychological abuse is determined and proven as such within criminal proceedings, and the perpetrator convicted. Proving psychological abuse in practice is quite a challenge, as there is an issue with what type of evidence can be used in criminal procedure to determine that the victim suffered psychological abuse. Psychological abuse is an act that, from objective point of view, involves the willful infliction of mental or emotional harm. A victim's subjective notion of their emotional distress is not a sufficient indicator of domestic violence, therefore the victim’s statement before court does not suffice as evidence of emotional abuse. In this paper, the authors will attempt to answer the question of how and with what evidence can it be demonstrated within criminal procedure that the victim suffered psychological abuse, as this is one of the prerequisites in providing adequate legal protection to the victims of this form of domestic violence.