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Mr Stojan Geshev, Formal Head of Department at the Ministry of Finance of the Republic of Bulgaria tell the readers about an interesting moment from the work of late prof. Milcho Kostov when the first Bulgarian Model for Double Taxation Treaty was drafted
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On 21 May 2018 in the Aula of New Bulgarian University in the presence of students and professors of the Law Department a public lecture dedicated to the issue of the legislative measures in the European Union counter terrorism was presented. The lecturer was Emil Radev, PhD, who is currently Member of the European Parliament1. Prof. Ekaterina Mihaylova, chair of the Law Department of New Bulgarian University opened the event and presented the lecturer. We received the permission of the lecturer to publish the text of the public lecture in this issue of the Law Journal of New Bulgarian University.
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The paper addresses some crucial issues related to insult and slander. The definition and protection of the dignity, honour and reputation as constitutionally protected values are discussed. The legal regime of insult, defamation and slander in some European countries are also marked, as well as some major disturbing tendencies related to freedom of expression related to them. The legal framework of insult and slander in Bulgarian criminal law are examined in detail. The paper examines the specifics related to the increase of slander and insult in the internet and the related problems. It also shreds light on those problems concerning minors and the need of better protection at schools through soft law and self-regulation.
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This study explores the abuse of superior bargaining position as set in Article 37a of the Bulgarian Competition Protection Act (CPA). The provision of art 37a is analyzed from the comparative point of view as to the existing normative regimes in jurisdictions like Japan and Germany. Unlike most studies on the abuse of superior bargaining position, the author maintains the view that the prerequisites in Article 37a of CPA set the institute as a part of the competition law rather than as part of the law of unfair commercial practices between enterprises. In support of this opinion the author performs a comprehensive review on the existing practice of the Commission for the protection of competition regarding Article 37a of CPA.
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Ownership and the right of ownership are formed in a specific historical and social context. Knowing these differences, as well as the reasons for their existence, may serve as a guarantee for the successful realization of the rights and for their protection. This paper discusses some specifics of the ownership in Bulgaria, which have been differentiated as a result of the social and economic relations from the Middle Ages to the present days. Such distinction is carried out in the paper on the basis of the differences between East and West (in a religious context), between country and town as well as natural exchange and monetary exchange.
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The author of this paper makes important conclusions and recommendations in view of the development and improvement of Bulgarian legislation in the field of the law of evidence. Criminal legal protection ensures the safety of all persons whose testimony, statements or information are essential to the criminal proceedings. In view of the effective application of the process of establishing evidence in Bulgarian criminal procedural law under consideration in the present paper are all basic principles of the Bulgarian Criminal Procedural Code currently in force. All the requirements with regard to the definition of establishing evidence and its classification are also studied in detail in the paper.
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This study briefly presents the development of personal data protection and its relation to the right to respect for private life. Some of the key points set out in the new Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) regarding the balancing of the right to expression are under discussion in the paper. Due to the fact that the GDPR obliges Member States to reconcile by law the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes and the purposes of academic, artistic or literary expression, some general remarks and comments are made towards the Draft Articles for the amendments in the Bulgarian Law on Protection of Personal Data and its conformity with the GDPR.
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It has been assumed in criminal law doctrine that the concept of sanity is formed as the ability of the perpetrator to understand the nature and significance of his/her acts, to regulate his/her behaviour at the time of committing the offence. That is, sanity is related to the totality of intellectual and volitional mental abilities, to part of the capacity of the mind of the subject, to his/her mental potential. These necessary abilities are to some extent “encoded” in art. 31 and art. 33 of the Criminal Code (CC) instead of being specified directly and clearly. There is a necessity of contemporary analysis and decoding of their hidden contents. In the current form, there is no chance for their unambiguous and doubtless interpretation. The introduction of the necessary changes in this respect will virtually allow that timely and exact conclusions about the presence of lack of sanity are reached before the very search of answers to the other important issues related to the investigation. In this article, having performed criminal law analysis, the author reached the following conclusions: 1. The intellectual ability to understand the nature of what was committed means that the perpetrator of the act had the idea of the causality existing in the objective reality, was aware of the factual effect of his/her actions, i.e., (s)he has the intellectual ability to predict the factual consequences which (s)he caused by this type of activity to which the particular act belongs. 2. The intellectual ability to understand the significant of his/her act means that the perpetrator of the offence should have two intellects: a) to realize the public impact of the act, to be aware of its sociological aspect; b) to realize the negative public appreciation of such a type of complex of acts to which the particular committed one belongs and the consequences resulting from it; c) to realize that the act committed by him/her has harm-causing nature, it prejudices some interests, that it deserves a negative public opinion, that it is anti-social and not that something of public benefit or a neutral one is being done; and d) the person had the intellectual abilities to understand the public-danger nature of the act. 3. The third mental ability constituting sanity is characterized by the strong will of the perpetrator, by his/her volitional abilities for refraining from committing the offence. In this case, sanity, as a term of criminal law, should not be mixed up with the legal capacity known in civil law where “to control one’s acts” means to “take care of one’s affairs”. In view of the arising of criminal responsibility, no sign of equality should be put between those two terms. The volitional ability of the sane person to control his/her acts means that the perpetrator of the public-danger and harm-causing act has an option, an alternative to his/her criminal behaviour, that (s)he had a choice in the bevahiour and in this view, the free will to choose an option from the alternative – to perform criminal or noncriminal behaviour. The sane persons could refrain from committing an offence. In spite of the fact that he is able to specify counter-arguments to those who compelled him/her to commit the offence, (s)he still chose to commit it. “(S)he could control” corresponds to the freedom of will in its legal sense. And vice versa, when the person was not able to control his/her acts, i.e. when there was a lack of sanity, this means that (s)he could not refrain from committing the harmcausing violation or the person had no other option of bevahiour besides the one (s)he performed as harm-causing violation. In this view, his/her mind is much closer to that of animals that to the one of a human being.
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The present article aims to outline the legal aspects in relation to approving, checking and publishing the European Company annual financial and consolidated statements, and their relevance to the national legislature of the Member State according to the company’s registered office. In addition, some of the main aspects in relation to the European Company taxation treatment have been reviewed. The article thoroughly examines matters related to the European Company financial statements constitution and publication procedures, in accordance with the decrees of Part IV of Regulation 2157/2001, Regulation 1606/2002 and the corresponding Directives, in order to harmonize the Member States’ rights about the annual financial and consolidated financial statements of the companies. Special attention is also given to matters referring to constitution and publication of the financial statements of EC with registered offices on the territory of the state, and the ensuing obligations in accordance with the Accountancy Act
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The European single market is the core of the European Union today. With the introduction of the four freedoms, within the European single market, people, goods, services and capital move around as freely as they do within one country. It would appear that the Union has a strong economic vocation. On the other hand, the EU established itself as a political union with social paragraph, in which the role of protection of fundamental rights is also essential. The protection of workers is part of these fundamental rights. The right to take collective union action, as the strike is seen as the exercise of a fundamental right. Therefore, a conflict seems to arise between, on the one hand, the structure of the European single market, and, on the other, the protection of fundamental rights, such as the protection of workers. Resolving this conflict would prove difficult, both in terms of finding a practical workable solution and a possible legal reconciliation. The rulings in the cases Viking2, Laval3, Rüffert4 and Luxembourg5 are an example of the difficulty of reconciling the protection of rights of workers, namely the right to strike and unions with the EU freedoms such as the freedom of movement. The future jurisprudence of the Court would prove to suffer from the same gaps as Viking and Laval cases, the question remaining if an equivalent protection is possible.
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This article aims at presenting the legislative decisions in the Confederation of Switzerland by means of comparative analysis of the Bulgarian legislation with simultaneous presentation of the Swiss case-law and legal doctrine. Some suggestions de lege ferenda are made as well. The analysis is made with regard to the applicable legal acts of both countries under consideration which are in force as of 1 January 2013.
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The 1879 Tarnovo Constitution of Bulgaria has been declared to be one of the most democratic world constitutions at that period, because of the rights and freedoms which it provided to Bulgarian citizens, in particular their voting rights and freedoms. The issue of interest under discussion in the paper is whether this Constitution could ensure in practice voting rights for Bulgarians, or these were of purely declaratory nature.
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One of the most common mistakes made by the contracting authorities refers to the violation of the prohibition as set out in Article 25, paragraph 7 of the Public Procurement Act (PPA) – that is when the selected criterion for the award of public contracts is the one of “the most economically advantageous tender”, the contracting authorities are not allowed to use in the capacity of award criteria the selection criteria under Article 25, paragraph 2, item 6 of the PPA. The subject of the present article is to clarify the nature of the prohibition under Article 25, paragraph 7 of the PPA, as well as the legal consequences that such a violation entails. For this purpose, the selection criteria and the award criteria are discussed, and special attention is paid to their differentiation. The law explicitly enjoins the mix-up between selection criteria and award criteria. The violation of that prohibition is an administrative offence which results in imposing a penalty sanction, respectively, a fine upon the contracting authority. Regardless of the administrative penal provisions of PPA, the current legislation still provides for an opportunity to impose financial corrections in cases when it comes to costs associated with the implementation of operational programmes co-financed by structural instruments of the European Union, the European Agricultural Fund for Rural Development and European Fisheries Fund for non-observance of the rules with reference to public procurement.
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The effect of the doer’s confession in criminal cases adjudicated under the order of the brief court investigation or settlement of the case by an agreement is statutory lowering the punishment. This procedural effect raises the question about the material value of the confession which has to be presented trough the point of two purposes of the punishment and the basic principles of imposing a determined sanction on a particular doer. Current article is focused on the material legal contents of the confession as a mitigating circumstance and legal grounds for applying art. 55 of Penal Code, which allows the substitution of the statutory sanction with a lighter one.
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The present paper forms part of a broader study on emperors’ constitutions as legal sources in the Late Roman Empire –both with regard to commentaries of the constitutions issued in Ancient Serdica, being one of the main seats of Roman emperors from the Age of Tetrarchs, and with regard to the overview of Roman jurisprudence developments from didactic point of view. This issue is under consideration at present in the light of the process of drawing general conclusions on the basic problems with regard to Roman law sources from the point of view of the history of lawcreation and Roman legal traditions in the establishment of European law.
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Current exposition examines the right of state bodies to litigatesubstatutes. Article 186, section 2 of the Administrative Procedural Codeallows state bodies to bring before the Supreme Administrative Court thematters of legitimacy of regulations, ordinances, instructions andgovernment decrees, although article 120, section 2 of the Constitution ofBulgariadoesn’t explicitly empower them to litigate statutorial actsof the administration. The Constitutional Court’s Decision No 5 from 17 April2007 on Constitutional Case 11/2007 definitely deals with the question ofstate bodies rights to litigate substatutes and the requirement of provingdirect personal interest in order to do so. The lack of clearlydefined rules about whoacts as litigation rights’ holder, however, still remains a problem. Legal norm indeed are general rules of behavior and constitutional normsare abstractions of highest degree, but this could not be an excusablereason for the lack of precision, clarity and thoroughness of theregulation of such a high priority matter as judiciary control over theacts of the administration. Hence the contradictory court rulings overthis matter not surprisingly lead to different legal consequences for thesame parties and the legal doctrine is also inconsistent. The main purpose of the present workis to expose this very issue.
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The Constitution of the Republic of Bulgaria, the constitutional practice and the media legal practice outline three main liberties in the field of media activity. These are the freedom of opinion, the freedom of the media and the freedom of information. These are regarded as projections of the universal human value “freedom of speech”. The provision of media audio- and audiovisual services is subject to administrative regulation executed by the Council for Electronic Media on the basis of the applicable Radio and Television Act. The reasons for the introduction of specific administrative legislation concerning programme production and broadcasting are to be found in the constitutional practice. These and other characteristics of media services have provoked the differentiation of media audio- and audiovisual law as a separate sub-branch of the special part of administrative law.
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Designed by the European legislator as a model for the restructuring of European businesses operating in the common European market, the ED represents an adequate tool for the benefit of enterprises in a united Europe for the purpose of transnational mergers and unions of companies from different Member States, to facilitate the management of enterprises subject to different national legislations and to promote the competitiveness of enterprises on the international market .
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The principle is that the whole property of the debrot (Art. 123, para. 1 of TIPC) guarantees the fulfillment of taxes or mandatory social insurance contributions as set out in an enforsed act of the revenue authority. The property subject to enforsed collection of public liabilities shall be seen as a totality comprising right of different scope and types to by the debrot. Apart from the rights recognized in the general enforcement proceedings, such as the right to property, to receivables, claim against third parties etc.
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The article reveals the opinion of the author with regard to an interpretative case, pending before the Supreme court of cassation of the Republic of Bulgaria. The author puts forward arguments in favour of the opinion, that in the case of an action for annulment of dismissal filed by an employee or worker whose employment contract has been concluded under the provisions of Article 61, paragraph 2 of the Labour code, the employer, that is “the undertaking of the post at issue”, along with its superior body act as defendant as necessary obligatory litisconsorts (codefendants). The article reveals the opinion of the author with regard to an interpretative case, pending before the Supreme court of cassation of the Republic of Bulgaria. The author puts forward arguments in favour of the opinion, that in the case of an action for annulment of dismissal filed by an employee or worker whose employment contract has been concluded under the provisions of Article 61, paragraph 2 of the Labour code, the employer, that is “the undertaking of the post at issue”, along with its superior body act as defendant as necessary obligatory litisconsorts (codefendants).
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