"LA DAME À LA LICORNE"

Author(s): Paul Vasilescu / Language(s): Romanian Issue: 1/2021

Globalization and being a part of the European legal bloc promised more zeal for the Romanian comparative study of law. This has not happened in the last decade, but it has not prevented the assertion of researchers passionate about the legal comparison. We review a particular work, essential and worthy of being remembered. 'Șapte dileme în teoria comparației' (Seven dilemmas in the comparative theory) is a collection of texts by Ms Raluca BERCEA focused on the comparative phenomenon, its categories, and its environment. Understanding law as a cultural phenomenon beyond the positivist horizon allows the author to attack the most challenging issues - the textual truth of the law, the mechanisms of comparativism and its methodology, the structure of comparative discourse, etc. Our invitation to read is justified by the quality of the writing and the richness of the ideas presented.

"The Confined Woman of Poitiers” and the Guarantor's Position of the Brother

Author(s): Cristina Nicorici / Language(s): English Issue: 02/2021

The concept of the state penalizing a person for his or her failure to act must be understood and analyzed as more than criminal responsibility for something that a person has failed to do. The idea that, unless a person complies with the obligations imposed by the state and acts accordingly, he or she will receive a court sentence, is related to the principle of legality in criminal law, individual liberty to act, and the rule of law. This article will underline the concept of improper omission, and how the criminal liability for improper omission is affecting the principle of legality in the perspective of the French criminal law theorists. In contrast with other European countries that have a long-standing tradition in accepting and analyzing criminal omission (such as Germany or Spain, for instance), in France, the idea of criminal responsibility for an omission that is not expressly regulated by the law was rejected. This longstanding position is based on a famous case – law that was very popular and is still mentioned by the theorists of criminal law when talking about responsibility for omission (known as the "Poitiers Case"). This decision, however, besides being an important case-law for the French criminal law, raises a problem that has not been solved even in the systems where the commission by omission is accepted. The main question that must be answered is whether a brother has a guarantor's position, or, in other words, has a duty to act, if his sister is in danger, and in this article, I present the main ideas developed as an answer to this problem.

(Ne)osnovanost hegemonističkog maskuliniteta

Author(s): Ivan Dujić / Language(s): Serbian Issue: 1175/2019

This paper is based on a brief comparative analysis of the dynamic development of society and state through the prism of hegemonic masculinity and gender inequality, disregarding the fact that politics and law promote and protect gender equality. the research aims to indicate that gender equality endeavours to dispute hegemonic masculinity as an irreplaceable basis for normative heterosexuality. One assumes that hegemonic masculinity is unfounded not only from a political and legal standpoint but also because it does not comply with the principles of the modern state. On the other hand, from an economic and sociological standpoint, hegemonic masculinity is well-founded which the paper hypothesis supports: hegemonic masculinity is a paradox because of its unwitting tendency to ignore politics, law and gender equality

6th Competition Law and Policy Conference in Memory of Dr. Vedran Šoljan – ‘Challenges to the Enforcement of Competition Rules in Central and Eastern Europe’ & ‘Competition Policy Enforcement in Digital Economy: Recent Developments’

Author(s): Vlatka Butorac Malnar,Jasminka Pecotić Kaufman / Language(s): English Issue: 22/2020

The 6th Competition Law and Policy Conference in Memory of Dr. Vedran Šoljan, co-organised by the University of Zagreb – Faculty of Economics and Business (EFZG), the Croatian Competition Agency (AZTN), the Croatian Competition Law and Policy Association (HDPPTN) and the European Documentation Centre EFZG, was held in Zagreb on 12–13 December 2019. A conference devoted to competition law and policy developments in Croatia, the wider CEE region and the EU as a whole, started off in 2009 as a small scale event aimed at presenting the results of an EU merger control reform project, led initially by Professor Vedran Šoljan (University of Zagreb), and continued on by Professor Jasminka Pecotić Kaufman (University of Zagreb) after his untimely death in 2008. Eventually, the Conference evolved into a large-scale event, and a tribute to the late Professor Šoljan, gathering around 150 participants from Croatia and abroad.

A COMPARATIVE ANALYSIS OF COMPANY DIRECTORS’ ACCOUNTABILITY AND THE STATUTORY DUTY OF CARE, SKILL AND DILIGENCE IN SOUTH AFRICA AND ZIMBABWE

Author(s): Howard Chitimira,Friedrich Hamadziripi / Language(s): English Issue: 2/2021

This article provides a comparative analysis of company directors’ accountability and the application of the duty of care, skill and diligence under the South African and Zimbabwean company law. Notably, Zimbabwe has recently partially codified company directors’ duty of care, skill and diligence for the first time in the Companies and Other Business Entities Act [Chapter 24:31] 4 of 2019 (COBE Act), which came into effect on 13 February 2020. On the other hand, the Companies Act 71 of 2008 (Companies Act 2008) of South Africa also partially codified company directors’ duty of care, skill and diligence and it came into effect on 1 May 2011. Consequently, South Africa has developed some good academic literature and jurisprudence on the duties of company directors for almost a decade. This is one of the reasons why South Africa’s Companies Act 2008 was chosen for a comparative analysis with Zimbabwe’s COBE Act on directors’ duties. Accordingly, the article discusses the gaps and flaws in the relevant company laws in South Africa and Zimbabwe in relation to the interpretation and application of the directors’ duty of care, skill and diligence. This is done to recommend some measures that could be adopted by the relevant regulatory bodies and companies to enhance their directors’ accountability in both jurisdictions.

A comparative study of separation of powers – an aspect of constitutionalism

Author(s): Vijaylaxmi Sharma,Prabhpreet Singh / Language(s): English Issue: 02/2021

According to the principle of separation of powers, there shall be division of power into legislative, executive and judicial branches, in order to protect political freedom. The power of these three bodies shall be restricted to their own specific boundaries and thus, no overlap is allowed. The onset of the 21st century has witnessed the problem of draconian legislations in most of the nations. Lots of questions are asked by citizens of such nations regarding the right to equality, freedom of speech and expression and the right to dissent. The interference of judiciary has become the essence of time to protect individual liberty and ensure the rule of law. Constitutionalism is one such principle which protects constitutional values by restricting the power of the state. The power of legislature is limited by the judiciary, which tests the validity of laws on touchstone of constitution. In some circumstances, the judiciary also breaches the compartment of separation of powers and lays down guidelines in form of laws which originally is the function of the legislature. This paper discusses such circumstances where it has become vital for the judiciary to keep a balance between the separation of powers and the principle of checks and balances. Also, such practices ensure constitutionalism in the nations.

A CRITICAL ANALYSIS OF ESTABLISHING THE JUDICIAL TRUTH

Author(s): Bogdan Bodea / Language(s): English Issue: 3/2020

The article represents a brief analysis of the effectiveness of the judicial act by referring to the necessity of establishing a judicial truth. In establishing limits for the determination of judicial truth, the article examines the prevalence of the notion of rule of law, the rigor of applying the rules of procedural or material law, the implication of equity in judicial matters and the need to establish a correspondence between factual truth and judicial truth.

A REVIEW OF DEFENCE PRETRIAL DISCLOSURES WITHIN THE CASE MANAGEMENT THEORY OF CRIMINAL PROCEEDINGS IN GHANA

Author(s): Isidore Kwadwo Tufuor / Language(s): English Issue: 43/2022

This article examines the concept of defense disclosures within the theory of managerialism in criminal proceedings in Ghana. Through a doctrinal and comparative legal analysis with the English jurisdiction, it finds that in substance, the requirement of defense disclosure seeks to move the criminal process from its core protectionist ideology that insulates the accused from matters of proof toward a managerial process informed by objectives of truth-finding, trial efficiency and case management. Ironically, this new direction in the criminal trial process is in practice denounced as being at odds with the procedural due process values that shield the accused from matters of proof and pretrial disclosures. The problem is that unlike in England where the move towards defense disclosures is informed by a clear policy change, the managerial policy introduced by the Judiciary in Ghana is not grounded in any articulated theory or policy direction. While pursuing a path of ensuring effective criminal adjudication through mutual disclosures by the parties, it is important to find a proper balance between the denounced but yet adopted procedural concept of defense disclosures and the highly valued protectionist rights of the accused.

A szerződés semmissége és megtámadhatósága a magyar és a román polgári törvénykönyvekben

Author(s): Zoltán József Fazakas / Language(s): Hungarian Issue: 2/2021

The validity as an essential element of contract is the basis for achieving the economic purpose set out in in it. Without validity there is no legal way to enforce the contractual content. In addition to the identity of the theoretical foundations of the legal institution of validity, significant differences can be observed between Romanian and Hungarian law. Those differences justify the performance of a comparative legal study beside several other specific reasons. The first of the this special reasons is the cross-border economic relations and the Hungarian legal society in Romania, which can play a ‚bridge’ in this matter. The real need for professional co-operation between members of the same mother tongue lawyers results summaries of the conceptual issues based on comparative legal studies. For theoretical, scientific and practical purposes the study outlines the basic issues of the nullity and avoidance of a contract, the partly different basic positions of the two legal systems, the grounds for annulment and the legal consequences.

Abordări corelative privind conceptul și structura conținutului de infracțiune (România și Republica Moldova)

Author(s): Radion Cojocaru,Oleg Rusu / Language(s): Romanian Issue: 11/2022

The issue of the content of the crime is treated through the prism of two criminal legislations and doctrines - of Romania and of the Republic of Moldova in the present study. The objective pursued by the authors is the substantiation of the perspective of a unique concept of approaching crime as a basic institution of criminal law in the Romanian space. The criminal legislation of the Soviet Union had an excessive impact on the evolution of the criminal legislation of the Republic of Moldova. Even today, some Moldovan criminal law institutions, including crime law, are approached from the perspective of concepts and perceptions that characterized the Soviet doctrinal system. As a result of this research, the authors, using mainly the comparative method of studying law, have argued the theoretical foundations that may constitute the basis for the approximation of the above-mentioned doctrines in addressing the content of the crime. However, the good knowledge of the issue of the legal content of the crime allows the description of the crimes by the strict observance of the quality standards of the criminal law, thus ensuring the principle of legality of the incrimination.

Actio de in rem verso. An Unwanted Continuity. The Doctrine of versio in rem in the Austrian Civil Code and Interwar Legal Discussion in Czechoslovakia

Author(s): Petr Dostalík / Language(s): English Issue: 2/2022

This paper concerns of the doctrine of versio in rem (or actio de in rem verso) in the legal discussion in interwar Czechoslovakia. The paper presents a brief overview of the origin and field of application of actio de in rem verso in classical Roman law and the transformation of the doctrine of versio in rem in the frame of Corpus Iuris Civilis. The scope of the changes made by the compilers is still uncertain and was a subject of extensive discussion among the legal scholars of the 19th century. The paper describes the nature of versio in rem in the Austrian Civil Code (provision of § 1041) and presents legal statements of the prominent exponents of the various legal schools of interwar Czechoslovakia, the legal traditionalists and the supporters of the School of Pure Law Theory. The doctrine of versio in rem is still in the centre of attention of the modern legal scholars in the Czech Republic. The doctrine of versio in rem was adopted in the new Czech Civil Code, but without reflecting the results of the interwar discussion.

Activity forms of municipal authorities and prospects for its development in Ukraine

Author(s): P. A. Trachuk,Iryna Nesterova / Language(s): English Issue: 155/2021

The authors attempt to explore the nature of local public authority, its sources of legitimacy, its types and forms. An idea of the constitutional and legal bases of the organization and activity of local public authorities and its bodies is given there. The existing systems of local self-government in different states are analyzed; attention is focused on the difference between the concepts of “self-government” and “management”. The problems of administrative reform in Ukraine in the context of globalization are analyzed there.

ADMINISTRACYJNOPRAWNE MECHANIZMY ZWALCZANIA AFRYKAŃSKIEGO POMORU ŚWIŃ (ASF)

Author(s): Paweł Czechowski / Language(s): Polish Issue: 87/2021

The article presents the genesis of the occurrence and origin of the African Swine Fever virus (ASF). In the absence of the discovery of a vaccine against the ASF virus, the only form of combating it is the application of administrative legal mechanisms characteristic of sanitary and veterinary law. The subject of the analysis are the administrative and legal mechanisms used to fight the ASF virus: the bans, orders, and mixed structures. The legal analysis performed was based on the legal regulations of the European law and the Polish national law. The final remarks include an assessment of the effectiveness of the doscussed legal mechanisms.

ADMINISTRATIVE ENFORCEMENT PROCEEDINGS FROM THE COMPARATIVE PERSPECTIVE OF LEGAL SYSTEM OF ISRAEL AND POLAND

Author(s): Jan Olszanowski / Language(s): English Issue: 02/2018

In the most general meaning enforcement is the implementation, by the competent authorities, of the coercive measures with a view to obtaining the discharge of an obligation vis-à-vis a creditor on the legal base3. Carrying into effect of judicial decisions, as well as of other judicial or non-judicial enforceable titles in compliance with the law which compels the defendant to do, to refrain from doing or to pay what has been adjudged. Enforcement proceedings are a set of measures taken in connection with enforcement following the lodging of an enforcement application. Generally, two parties are involved in execution proceedings. One is defined by law as the winner or creditor. The other party is defined as the debtor. The most important in enforcement proceedings is to balance between the protection of the rights of debtor and the effectiveness of the proceedings, which is connected with the rights of creditor. This is the consequence of the range of rights of debtor and the catalogue of enforcement measures which may be implement in enforcement proceedings.

Administrative Law and Public Administration in the Global Social System

Author(s): / Language(s): English

This volume contains the scientific papers presented at the 3rd International Conference “Contemporary Challenges in Administrative Law from an Interdisciplinary Perspective” that was held on 9 October 2020 online on Zoom. The conference is organized every year by the Society of Juridical and Administrative Sciences together with the Faculty of Law of the Bucharest University of Economic Studies. More information about the conference can be found on the official website: www.alpaconference.ro. The scientific studies included in this volume are grouped into two chapters: Administrative Law in the Global Social System and Public Administration in the Global Social System. This volume is aimed at practitioners, researchers, students and PhD candidates in juridical and administrative sciences, who are interested in recent developments and prospects for development in the field of administrative law and public administration at international and national level.

ADVISORY OPINION AND PRELIMINARY RULING PROCEDURE – A COMPARATIVE AND CONTEXTUAL NOTE

Author(s): Marija Daka / Language(s): English Issue: 3-4/2020

The apropos of this article is Additional Protocol No. 16 complementing to the European Convention on Protection of Human Rights and Fundamental Freedoms that recently came into force. This paper presents the main common and differing elements of two non-contentious procedures before supranational courts. The advisory opinion procedure of European Court of Human Rights (ECtHR) and the preliminary ruling procedure marked by unprecedented success before the Court of Justice of the European Union, -as at least prima facie- similar types of proceedings. The paper also analyses cross-cutting issues arising from the application of both procedures in the same case arising before designated national court or tribunal. Although the purpose of the advisory opinion is to achieve and maintain efficiency bearing in mind that the ECtHR is victim of its own success the paper outlines some of serious doubts and assumptions whether in current format and in foreseeable future this purpose will be achieved. Furthermore, the paper also takes a closer look at the procedural aspects of the first advisory opinion delivered by ECtHR given its importance as we can draw at least some conclusions on the functioning of this type of procedure. Lastly, the paper -in comparative spirit- also refers to the relationship of the ECHR and the European Union Law as the two main trustees within the European multilevel system of rights protection.

AFGHANISTAN UNDER TALIBAN: A NEW REGIME POSES A THREAT TO INTERNATIONAL STABILITY

Author(s): Valeri Modebadze / Language(s): English Issue: 1/2022

The purpose of this study was to see whether the Taliban regime poses a threat to the international community. The research primarily examined the threats that the formation of a theocratic regime in Afghanistan poses to neighboring countries and the international community. With regards to research methods, a document analysis method was used to obtain valid information and to analyze and describe the complex situation in Afghanistan. A wide array of documents and scholarly articles were analyzed to obtain reliable and objective information. This research revealed that the Taliban has not changed at all and still rules Afghanistan with medieval methods and strategies. Since the Taliban takeover of Afghanistan, the economic situation has deteriorated considerably and people face severe hardship. Therefore, hundreds of thousands of Afghans want to leave their homeland and migrate to the West. The Taliban violates constantly human rights and discriminates against women, ethnic and religious minorities. The Taliban has transformed Afghanistan into a narco-state. Neighboring countries fear that Afghanistan might become a hotbed of terrorism and extremism again.

Afrykański pomór świń i interwencyjny odstrzał dzika – podstawy prawa unijnego i krajowego

Author(s): Magdalena Sitek / Language(s): Polish Issue: 44/2019

The ASF virus has been spreading among wild boars for over a decade in several European countries, including Poland. As a result, there are quite numerous infections among domestic pigs as well. Therefore, numerous EU and Member State regulations have been published in this respect and a biosecurity procedure has been introduced. One of its elements is to hunt wild boars in areas vulnerable to the ASF virus. The increase in the number of infections among wild boars and the appearance of numerous outbreaks of this disease among pigs prompted the Polish authorities to allow a significant increase in the amount of wild boar hunting. This decision aroused debate on the legitimacy of such a solution. The purpose of this study is to analyse the provisions of EU and Polish law regarding the legitimacy of an increase in the amount of wild boar hunting in Poland.

Ain’t that funny?

A jurisprudential analysis of humour in Europe and the U.S.

Author(s): Natalie Alkiviadou / Language(s): English Issue: 1/2022

This paper provides a legislative and jurisprudential comparative of European and U.S. case Law on humour. Whilst the Europe-U.S. comparison, in the ambit of expression, has been looked at extensively, there has yet to be a focus on the varying ways in which humour is treated in the two spheres. What will become evident is the intricacy of cultivating just legal tests to be used by the judiciary in deciphering an inherently abstract theme. At the core of these tests at the European level, is a balancing exercise between the right to offend and the right to be free from offence. However, the multitude of available interpretative routes, in addition to the array of differing human responses to humour, renders such tests and their application legally fragile. This reality raises concerns vis-à-vis the fundamental right of freedom of expression and becomes particularly topical within the current digital age and the “polarizing dynamics of social media” Godioli (2020:1). The analysis will demonstrate that humour receives much greater protection in the U.S. Framework due to the First Amendment whereas the highest regional human rights court in Europe, namely the European Court of Human Rights is quick to limit humorous speech on grounds of offending others, thereby demonstrating a backsliding of the fundamental freedom of expression, including humorous expression in the region.

Alan Watson: Legal Transplants. An Approach to Comparative Law (The University of Georgia Press, Athens and London, 1993)

Author(s): Oliver Antić / Language(s): Serbian Issue: 4-6/1997