ВРЪЩАНЕТО КЪМ ПРИНЦИПИТЕ НА РИМСКОТО ПРАВО ПРЕДИ ЗАКОНОДАТЕЛНАТА ИНВОЛЮЦИЯ

Author(s): Maria Pia Baccari / Language(s): Bulgarian Issue: 2/2020

In the light of the general principles of law, understood as a legal system of Roman origin (ars boni et aequi), and despite the deviations from the Italian legal system and hence this sort of involution, the judges can use an ancient instrument which still today fulfils the function of defence of the conceptus, the woman, the weaker parts of society and of society itself. Roman Law defended human life right from its conception. When referring to the unborn child the jurists made use of quite a concrete and simple terminology, for example qui in utero est, partus, venter and not the mere conceptual abstractions which are commonly used today by the doctrine or the legislators (subjective right, subject of right, juridical capacity), which are quite complex concepts that inevitably distance us from the “human things” and which are difficult to understand even in Italian. The Roman praetor created the figure of the curator ventris to protect the child in womb, the woman end the res publica.

OSSERVAZIONI SULLA ‘RUPTIO TESTAMENTI’ E SULLA RILEVANZA DELLA VOLONTÀ TESTAMENTARIA IN DIRITTO ROMANO

Author(s): Roberta Marini / Language(s): Italian Issue: 2/2020

The relevance which, in the different legal orders, is recognised to the testamentary autonomy is a matter of policy of law. If the nowadays civil law recognises a full possibility to revoke testamentary provisions – based on the strong recognition of the testamentary autonomy as deriving from the ‘sovereign’ value of the human will – the Roman law model of the ruptio testamenti provides interesting elements for further considerations. Within the ius civile, the testamentum seems to be connected to a strong idea of typicality which does not seem to be so easily possible to be overcome by a subsequent will of the testator however expressed.

THE MARITIME CODE IN ROMAN, BYZANTINE LAW AND THE LAW OF SLAVIC PEOPLE

Author(s): Marija Ignjatović,Aleksandar Đorđević / Language(s): English Issue: 2/2020

In the area of the maritime law in the period between the year 600 and 800, the law Nomos Rhodion nautikos was passed, the maritime law which during the following centuries was a part of the Byzantine legislation, through the assignations of the Basilica, more precisely as the eighth title of the LIII book. The maritime law Nomos Rhodion nautikos, was most likely passed during the reign of Lav III, on the passing from the VII to the VIII century, before the Basilica was passed. Even though the text of the law was based on the principles and rules of the Roman law, it represented an individual and original legislative work in which a number of digressions from Roman naval law took place, and which regulated this area of law in the way which met the needs of the society in the period when it was made. The Nomos Rhodion nautikos code contained forty-seven articles which regulate different issues from the area of the naval law. By the assignations of this law what was regulated is the following: the legal status of the ship crew, the contract on the transport of goods, the contract on the ship lease, the naval ship-lease deposit, the shipman’s accountability, damage, shipwreck, saving and helping at sea, paying the shipcrew and giving certain rewards to the saviours of the ship and the shipload in the course of accidents at sea, etc. The maritime law also contained the penalty regulations, which by its content corresponded the solutions from the Byzantine law of the VII and VIII century. The maritime law held a particular importance for the naval and legal regulations of the medieval towns, because under their influence the by-law regulations of the medieval naval towns of the Western Mediterrranean were created, into whose hands the naval trade was passed after 1204. The relation between the Byzantine law which represented the continuance of the Roman law and medieval towns in the region of the previous western part of the Roman Empire, could also be recognized in the area of the trading law, and particularly in the area of the maritime law.

IL FONDAMENTO NOMOCANONICO ROMANO DELLE FUNZIONI ETNARCHICHE PATRIARCALI

Author(s): Giorgio Barone Adesi / Language(s): Italian Issue: 2/2020

In the thematic context of the Fifth International Conference of the Balkan Association of Roman Law and Roman Law Tradition "Societas pro iure romano" I would like to make some observations on the impact exercised by Roman law in the elaboration of the canonical order of the ecclesia catholica. The following annotations address the genesis of the patriarchal institution, to reveal its original Roman legislative concept. Moreover, the identity of the patriarchal function today constitutes a question not entirely unrelated to the conflicting opinions, found in Orthodox circles, regarding the recent proclamation of Ukrainian autocephaly.

OFFICIUM, MUNUS, HONOR: РИМСКОПРАВНИ ПРЕЦЕДШЕСТВЕНИЦИ НА ТЕРМИНА ЗА СЛУЖИТЕЛ И НЯКОИ ДРУГИ АДМИНИСТРАТИВНОПРАВНИ КАТЕГОРИИ

Author(s): Elena Quintana Orive / Language(s): Bulgarian Issue: 2/2020

The article examines some terms such as officium, munus, honor, used in roman legal and literary sources and which correspond broadly with its own terms of modern administrative law such as public function, public office or employment or competence.

ARBITER OF THE ROMAN ARBITRATION PROCEDURE

Author(s): Ivan Milotić / Language(s): English Issue: 2/2020

Unclear distinctions between arbiter and iudex and thereby the difficulties and inconsistencies of understanding accurately the legal nature of arbiter in Roman law were primarily conditioned by the vague differentiation between arbitration and court procedure per formulas. The legal sources indicate that the precise meaning of an arbiter could be reached only from case to case analysis because it seems that this term and institute signified only a basic concept or an idea, or even a common denominator of a wide spectrum of decision makers that dealt with disputes differently than the iudex in court procedure. In different localities, disputes, among different disputants and on the grounds of different arbitration arrangement an arbiter receive substantially diverse meanings, roles and functions. Moreover, at least sometimes even the Romans themselves might use the terms iudex and arbiter indiscriminately. The problem did not go unnoticed by the scholars who study Roman law and was to some extent elaborated and clarified which provides better understanding of this specific procedural phenomena, but still requires the ongoing work and analyses of the legal sources. Although the Romans used the term arbiter to denote more a universal concept than a complex role and function of an individual decision maker in an actual case, the term and the specific language referring to him, as well as the differentiation between more types of arbitri, survived in late antiquity and were transferred to the Middle Ages and the procedural treaties of the time.

DIOCLETIAN’S REFORMS OF STATE ADMINISTRATION AND CORRUPTION LIVE TODAY?

Author(s): Milica Zhupljanic / Language(s): English Issue: 2/2020

One of the main areas of Diocletian’s reforms was the state administration. His interventions, made in the administrative mechanism, were so far-reaching and fundamental that there is almost nothing left from the old system. Diocletian's measures were aimed to strengthen the authority of the Emperor and to made states governance more centralized. Inevitably, those changes have resulted in the increased bureaucracy and also in the enormous enlargement in the number of civil servants. When entering the service civil servants take an oath, and they were also obligated to pay a certain sum of money to their superiors. In all those facts mentioned one should find the roots for bribery and corruption. In order to get to the position of civil servant, which has been appreciated and which provided certain privileges, one did not hesitated from giving money and other valuables. Attempts to stop the bribery and corruption with espionage and mutual denunciation were quite unsuccessful, as even the abuse of the secret police. The aim of Diocletian and his central government, which consisted in building well-organized administrative machinery, which would be able to manage all affairs of the state, was not met. Bribery and corruption are the main reasons for the failure of this well-conceived system. However, we should not forget that time in which Diocletian lived certainly require new ways of governance.

Offer of sail training in the West Pomeranian Province in the light of the applicable regulations

Author(s): Oleksandra Osypchuk,Aleksandra Łapko / Language(s): English Issue: 2/2018

The main aim of the article is to present the current situation on the market of sailing training services in the West Pomeranian Province and to answer the question whether entities that provide such services are necessary when sailing courses are not obligatory anymore. The first part of the article presents the current regulations on the conditions for obtaining sailing license and the statistics on the number of licenses issued in 2009–2016. Then the offer of selected training centers operating in the West Pomeranian Province is described. In addition to study on the supply, the authors carried out study on the demand. This concerned the reasons why respondents chose to attend a sailing course.

The Privileges and Immunities of Diplomatic Envoys Under International Law

Author(s): Abdul-Rauf Mahmoud Abba,Sadiq Muhammad Safiyanu / Language(s): English Issue: 19/2020

The concept of diplomatic immunity is an ancient idea based on a mutual understanding between different societies. The idea that a society could send a person on their behalf to negotiate and argue for their cause has been a vital tool in the history of international relations. Since the beginning of civilization, states have recognized and upheld the sanctity of ambassadors, especially as regards the personal freedom and safety of envoys. Although there have been tremendous changes in the way nations interact with each other, the basic functions of diplomacy and their machinery have not changed. Indeed, the central features of diplomatic institutions have survived the fundamental shifts in the order and structure of international politics such as the surge of nationalism and democracy and the incorporation of non-European countries in the international system. Although the notion of diplomatic immunity has been continually adhered to by nations predating the codification of diplomatic law, increased globalization and inter-dependency between states has led to the development of customary International Law which has subsequently been codified to ensure that diplomatic immunity is held sacred till the end of times. In an attempt to properly understand and appreciate the broader concept of International Law, some of the most important privileges and immunities being enjoyed by diplomatic envoys are highlighted and discussed in this work.

Niezgodność wyrobu budowlanego z deklaracją właściwości użytkowych jako praktyka wprowadzająca w błąd co do właściwości produktu – uwagi na tle decyzji Prezesa UOKiK z dnia 4 października 2019 r. (DOZiK-6/2019)

Author(s): Aleksandra Wędrychowska-Karpińska / Language(s): Polish Issue: 7/2020

The article discusses the decision of the Polish competition and consumer protection authority (Prezes UOKiK) of 4 October 2019 (DOZiK-6/2019) regarding the unfair commercial practice of marketing certain construction products (XPS foam boards) that do not have declared performance characteristics. The way the decision was argued shows when Prezes UOKiK, as the horizontal competition and consumer protection authority, intervenes in cases which are, or have been, dealt with in parallel by sectorial regulators (such as the building supervision inspectors, whether provincial or the Chief Building Supervision Inspector), using public documents collected by them. The article discusses how to construe the term ‘unfair commercial practice’ where certain technical or professional information given by an undertaking about its product’s performance is false. The article also considers the penalties applied in the regulator’s decision of 4 October 2019 in the context of the need to remove the continuing effects of the unfair commercial practice.

ON THE MANUFACTURER’S LIABILITY FOR NON-FUNCTIONAL, PERISHABLE AND/OR REPLACEABLE MEDICAL COMPONENTS OF MEDICAL DEVICES

Author(s): Maria-Magdalena Cardis / Language(s): English Issue: 1/2020

As many other industries, the industry of medical devices has also been severely affected by the SARS-CoV-2 pandemics. In this context, every medical device became more than necessary because they were all supposed to be working on their highest level. Still, as it often happens in practice, a crisis is not something which is very well anticipated, so one is to be found in the middle of it, not exactly knowing what to do. The present article aims to set a simple legal framework in which some aspects on the manufacturer’s liability for non-functional, perishable and/or replaceable medical components of medical devices are discussed.

BRIEF CONSIDERATIONS ON TELEWORK DURING PANDEMIC

Author(s): Dana Volosevici / Language(s): English Issue: 1/2020

The COVID-19 pandemic has caused an unprecedented health and economic crisis worldwide and at this date it is still too early to have the complete picture of the consequences. Employers were forced to implement efficient measures to contain and mitigate the virus, while maintaining economic activity. In many European countries, authorities imposed or at least urged the employers to telework, in order to ensure the employees’ health protection. The paper addresses some aspects of teleworking, inviting to further developments

RAZLOZI ODBACIVANJA PONUDA U POSTUPCIMA JAVNIH NABAVKI

Author(s): Slaviša Bjelogrlić / Language(s): Bosnian Issue: 1/2021

The paper analyzes the provisions of the Law on Public Procurement that refer to the reasons for rejecting requests for participation or bids in public procurement procedures. The paper points out the shortcomings and insufficient precision of the current legal provisions of the topic, with a proposal to improve existing solutions, all in order to avoid difficulties in the process of evaluation and evaluation of bids in public procurement procedures, which often lead to (unnecessary) appeals and court proceedings.

EMPLOYEE’S CONSENT FOR PSYCHOLOGICAL SERVICES. BRIEF CONSIDERATIONS

Author(s): Dana Volosevici / Language(s): English Issue: 2/2020

Starting with recruitment and selection, throughout the employment relationship and until its termination, the intervention of the psychologist is recommended for the evaluation of the candidates and later of the employees. Employees are, as specified in the Code of Ethics of the profession of psychologist, partially dependent persons, as the decision and informed consent are divided by two or more parties, respectively the employer and the employee. The article analyses some aspects related to how the situation of legal dependence of the employee on the employer has an ethical and legal impact on obtaining the employee’s regarding the psychological services.

APPLICATION OF THE DISCIPLINARY OFFENSE OF THE WRITTEN REPRIMAND. CASE STUDY

Author(s): Dragos Lucian Radulescu / Language(s): English Issue: 2/2020

Labor discipline is a legal institution related to the obligation of employees to comply with the system of internal rules of employers, as well as those resulting from the content of the individual employment contract. The legal relationship between the employee and the employer is one of subordination, this implying specific rights and obligations, imposed by the work discipline, their non-observance leading to the possibility of applying disciplinary sanctions. In the context of the COVID-19 pandemic, the obligation of the civil servant to comply with the superior's order becomes essential, the county public health directorates being in the forefront of the fight against the virus. The article refers to the disciplinary sanction of the warning, applied to the civil servant for violating the work discipline, in the context of blocking the activity of the department, by non-compliance with the internal audit service, with reference to internal regulations, labor agreements, and individualization of the sanction, motivation and procedural approach.

Organizational and legal procedures for ensuring the security and protection of an economic entity: a security knowledge approach

Author(s): Oksana Vivchar,Inna Zaitseva-Kalur,Oksana Redkva,Volodymyr Gevko / Language(s): English Issue: 46/2019

Target setting. Establishing and applying a “trade secret” regime to information that is commercially valuable to an entity is one of the priority issues for strengthening economic security. Actual scientific research and issues analysis. The problems of security and protection of commercial secrecy have been studied extensively by such researchers as H. Androshchuk, Yu. Nosik, O. Slipachuk, A. Sliadnieva, S. Chikin, V. Chernenko and others. The authors analyse the current state of the legal regulations of this institute, investigate the protection of trade secrets in the countries of the European Union and consider measures of legal and organizational nature regarding its preservation, etc. However, despite the rich scientific background in this field, the issues of protection and protection of trade secrets remain relevant today. The lack of a special law on trade secrets imposes on entities the setting of objectives to establish and enforce trade secret systems for information which is important and valuable for strengthening the economic security of the enterprise. It offers both great opportunities for the latter and requires great effort and responsibility in their decision making.

Into the Grey Zone. What Do We (Don’t) Know About Types of Concentrations Between Undertakings Under EU law After Austria Asphalt?

Author(s): Adrian Bielecki / Language(s): English Issue: 21/2020

In Austria Asphalt, the Court of Justice issued the first preliminary ruling related to the EU merger control regime. In Advocate General Kokott’s words, the Austrian Supreme Court asked the Court of Justice to answer the fundamental question of what constitutes a concentration between undertakings within Article 3 of the EUMR. The Court of Justice held that Article 3 of the EUMR must be interpreted as meaning that a concentration is deemed to arise upon a change in the form of control of an existing undertaking which, previously exclusive, becomes joint only if the joint venture created by such a transaction performs on a lasting basis all the functions of an autonomous economic entity. Although the ruling was rendered in the context of a specific transaction scenario, the underlying reasoning could shed new light on how to assess transactions that fall between acquisition of control and creation of a joint venture. However, this reasoning is incompliant with the purposes and economic foundations of the EU merger control regime. This can be proven both in relation to the transaction scenario directly covered by the question for a preliminary ruling and, if extrapolated, in relation to other transaction scenarios.

The Condition of Fault in Private Enforcement of Competition Law – a Comparative Analysis of U.S. v. Polish and European Approach

Author(s): Marta Maćkiewicz / Language(s): English Issue: 21/2020

The purpose of the Polish Act on Claims for Damages for Remedying the Damage Caused by Infringements of Competition Law, based on and implementing EU law – the Damages Directive, was to enable undertakings to effectively use private enforcement of their damages claims from competition law offenders. Infringement of competition law is classified as a tort according to the said Act on Claims. Therefore, the Act on Claims refers to tort liability rules. The conditions of classic tort liability in domestic law do not have exactly the same dogmatic meaning and scope as the conditions of public or private liability for the infringements of domestic and EU competition law. In practice, their application by national courts may rise many questions regarding conformity between domestic and EU law. This paper aims to analyse one of the key conditions of tort liability, that is, the fault of both the undertaking – the offenders, as well as the fault of their governing bodies and officers. If one were to understand the notion of fault within the limits laid down by civil law, and follow the literal wording of the Polish Civil Code’s provisions referring to the fault condition, the efficiency of private enforcement of damage claims arising from infringements of competition law would be doubtful. Therefore, the aim of this paper is to provide the readers with such an interpretation of the notion of fault, as a condition of liability of undertakings, that the legislative purpose of the Act on Claims is achieved and that the principles of efficiency and equivalence of the EU law are observed. In order to present a comprehensive picture, this paper will also discuss the case law of the CJEU concerning ‘anti-trust fault’, accompanied by a comparative analysis of the German and French approach to the fault condition as well as United States antitrust laws in the same area.

Is Selective Distribution Possible on the Internet? On Restrictions of Online Search Advertising and Online Sales in the Guess Case

Author(s): Bartosz Targański / Language(s): English Issue: 21/2020

This comment discusses the case AT.4028 of 17 December 2018, where the European Commission imposed a fine of 39.8 million Euro on clothing company Guess for several restrictive provisions in agreements with its distributors in the EEA, including restrictions of online search advertising and online sales. The case demonstrates that e-commerce leads to disintermediation within the supply chain, which in turn leads to tensions between the manufacturer of branded products and authorized distributors operating in a selective distribution system. The case does not provide, however, much practical guidance on how to align online and offline channels into one distribution system supporting a prestigious image of branded products. Therefore, an example of a distribution system integrating online and offline sales from the practice of the Australian Competition and Consumer Commission is presented.

Ogólnopolska konferencja naukowa „O pojmowaniu prawa i prawoznawstwa”, Szczecin, 26 listopada 2020 roku

Author(s): Patryk Kupis / Language(s): Polish Issue: 33 (1)/2021