"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.

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 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.

Administrative Law and Public Administration in the Global Social System

Author(s): / Language(s): English / Publication Year: 2021

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.

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.

Amendments to transfer pricing regulations since 2019 – selected issues

Author(s): Miłosz Kłosowiak / Language(s): English / Issue: 28 (4)/2019

The aim of this paper is to describe the changes in the law that have taken place in the area of transfer pricing regulations starting 1 January 2019. First, the essence of the legal structure of transfer prices is presented. Then, the changes in the reclassification and omission of transactions for the purpose of transfer pricing, the catalogue of transfer price estimation and verification methods, and simplified settlement rules and changes in transfer pricing documentation are specified. The research method used in this research consists in analysis of legal acts using the literature on the subject. Based on the analysis, it may be concluded that, on the one hand, changes in the law were aimed at removing administrative burdens from taxpayers which the legislature considered unnecessary and, on the other hand, the scope of powers of tax authorities was extended and the potential severity of tax sanctions was increased.

An Outline on the Right to Water in the EU System

Author(s): Francesco Anastasi / Language(s): English / Issue: 1/2020

Water is a fundamental resource for the birth, development of human civilization. The right to water is one of those rights that transcends and embraces the whole history of man and society. However, in our contemporary society the right to water seems something new, almost a post-modern innovation. Research at European level has taken up the challenge and the scientific water community is committed to rapidly developing and transferring management solutions that make our cities more liveable and the negative pressures on the availability of good quality water for uses increasingly irrelevant potable and civil. In this context it is important to develop a regulatory and legislative approach that does not settle for damage-repair dynamics but an approach aimed at prevention and planning directed towards two contexts: procurement and recycling-reuse.

Analele Științifice ale Universităţii Alexandru Ioan Cuza din Iași, seria Ştiinţe Juridice

Frequency: 2 issues / Country: Romania

Scientific Annals of Alexandru Ioan Cuza University of Iași, Juridical Sciences Series, is a publication with tradition in the field of legal sciences.

The Journal includes research work of teachers, visiting professors, researchers and PhD students from the Faculty of Law of Alexandru Ioan Cuza University of Iasi.

Annals of Alexandru Ioan Cuza, Juridical Sciences Series contain analysis of specific issues of law, subscribed to the four cardinal points of legal taxonomy - Public Law, Criminal Law and Criminal Sciences, Private Law, International and European law - dubbed the reviews and comments of jurisprudence.

ANTE ROMAC – DRAGOMIR STOJČEVIĆ AND THE FOUNDATION OF YUGOSLAV ROMANISTICS

Author(s): Nebojsa Randjelovic,Sara Mitic / Language(s): English / Issue: 2/2020

Ante Romac and Dragomir Stojčević, one a professor at the University of Zagreb and the other a professor at the University of Belgrade, have left a mark on a time period with their work, and implanted their opus into the foundations of romanistics on Yugoslav territory. Their scholarly opus was big, and their cooperation fruitful. With all the greatness of their opus, it is worth particularly highlighting their joint work on a collection of rules and sentences of the Roman law in Latin Dicta et regulae iuris and the famous monograph by professor Romac Dictionary of Roman Law. By means of a specific scholarly approach with explanations and a specific methodology of presenting and defining the institute of Roman law, these books have become a classic of Yugoslav romanistics.

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.

ARE UNIVERSAL HUMAN RIGHTS UNIVERSAL?

Author(s): Ildus Yarulin,Evgeny Pozdnyakov / Language(s): English / Issue: 71/2021

One of the issues constantly discussed in the context of human rights is their assessment as universal or relative. International human rights norms are universal, which corresponds to the nature of human rights. The process of universalization of human rights began after the second world war with the creation of the United Nations, whose Charter declared its determination to reaffirm faith in the fundamental rights of the individual, in the equality of men and women and in the equality of nations large and small. These intentions of the organization were confirmed by the adoption of universal documents: the International Bill of Human Rights, including the Universal Declaration of Human Rights of 1948, the International Covenants on Human Rights, opened for signature on December 16, 1966, and other acts. However, the problem lies in the fact that human rights recognized at the international level as universal and enshrined in international instruments, which must be respected by all and everywhere, lose the signs and qualities of universality under the influence of various socio-cultural, national traditions and customs, religious and other factors, and acquire the meaning or status of relative ones.

Axiology of Administrative Discretion (gyōsei sairyō) as Well as Administrative Guidance (gyōsei shidō) in Japan from the Perspective of Judicial Control

Author(s): Hiroshi Kaneko / Language(s): English / Issue: 3/2020

In Japan, the Court often examines the technical aspects of administrative discretion if there was a proper decision-making process. Such control could rely too much upon each judges’ viewpoint, which elements in the whole process of administrative discretion have critical gravity to evaluate (kōryo kachi). The pre-war legal scholars suggested the best way to increase judicial protection on the citizens’ rights endangered by administrative discretion. The need to establish robust legal theory based on it the Court guarantees the balance between smooth enactment of administrative measures and maintenance of social justice is still enormous. Administrative guidance was, for a long time, out of the scope of judicial control. This institution is Japan’s original so that its implication well exceeds the standard understanding of mere instruction in other legal cultures. The Japanese Court acknowledges the existence of “forced consent” behind it more frequently in recent years.

BETWEEN JUDICIAL REVIEW AND THE EXECUTIVE - THE PROBLEM OF THE SEPARATION OF POWERS IN COMPARATIVE PERSPECTIVE

Author(s): Robert Siuciński / Language(s): English / Issue: 2/2020

Judicial review of the executive is an essential element of democracy. It ensures the legality of administration. It is obvious that for adequate protection of rights of individuals, judicial review should be effective. There are two models of judicial review: the cassation and the merit one. The first of them is based on assumptions derived from the Austro-Hungarian regulations dating back to the nineteenth century. It assumes that the competence of the administrative court is only to issue two types of rulings. Some European countries uses the merit review elements were introducted into the proceeding before the administrative court. This model of judicial review, which is characteristic for French solutions, gives to administrative courts the possibility to ingeration in administrative action. It seems interesting to consider which of these models of judicial review is more effective when it comes to protecting the rights ensured by the proper fulfilment of judgements and what are the advantages and disadvantages of both systems in the light of separation of powers.

Beyond Compliance: odpověď autorů

Author(s): Jan Petrov,Katarína Šipulová,David Kosař,Hubert Smekal,Ladislav Vyhnánek / Language(s): Czech / Issue: 2/2021

In this article, the authors of the monograph Domestic Judicial Treatment of European Court of Human Rights Case Law: Beyond Compliance (KOSAŘ, D. et al. Routledge, 2020) respond to the essays of commentators included in this symposium. We reinstate the fundamental building blocks of the monograph and elaborate some of the book’s arguments on the background of the commentator’s essays. The article reflects on the critical points raised by the commentators. The first part explains the methodological basis of our approach to the judicial treatment of ECtHR case law. The second part elaborates on how to integrate commentators' comments into the framework developed in the monograph. Finally, the article invites a discussion on how to follow up with research on the treatment of the ECHR and the ECtHR case law in domestic settings.

Born to Polish same-sex parents – a case study. A human rights perspective on birth certificate transcriptions

Author(s): Karolina Mendecka / Language(s): English / Issue: 32 (4)/2020

This article is a case study regarding a recent resolution of the Supreme Administrative Court in Poland (the SAC). The Court found that a transcription of a foreign birth certificate, in which two people of the same sex are registered as parents, is not allowed under the Polish law and is contrary to ordre public. This paper focuses primarily on two aspects regarding the resolution. First, it addresses whether the best interest of the child principle was given due consideration. Second, it analyses whether the possible discriminatory treatment on the grounds of sexual orientation of the parents was adequately examined, with particular reference to the jurisprudence of the European Court of Human Rights (the ECtHR). This paper is divided into four parts. The background information pertaining to the issues at stake as well as the case itself are addressed in Part 1. Part 2 briefly summarises the SAC resolution and the judgement. Part 3 concentrates on deconstructing the best interest principle as an international and national standard. In Part 4 the ECtHR case-law is examined in order to provide a human rights perspective on the matter. This article concentrates on providing the perspective of a child and on the jurisprudence of the European Court of Human Rights, as it is a well-recognised international law-applying body that raises the threshold and quality of respecting human rights in the European continent. The final part summarises the paper and presents the conclusions. It is going to be demonstrated that in light of the ECtHR jurisprudence, the SAC failed to adequately analyse that a difference in treatment of same-sex parents in comparison to other unmarried couples is reasonable, pursues a legitimate aim and that the treatment is proportional. Moreover, it will be argued that the SAC unsuccessfully demonstrated why primacy had been granted to the interest of the state and public order, instead of that of a child. The main goal of this paper is to highlight the importance of endorsing the child’s perspective and the compelling need to carefully consider the child’s best interest – in each and every case that involves their fate. In order to achieve the purpose of this study, the research is based on the evaluation of the universal human rights documents relevant to the topic, as well as the analysis of the ECtHR jurisprudence related to the subject.

Breastfeeding as a (Non)Exclusive Right of Women in Labor Relations – the European Approach

Author(s): Juraj Hamuľák,Denisa Nevická / Language(s): English / Issue: 1/2020

The authors of presented article deal with the issue of breastfeeding in labor relations. The current Slovak legislation allows only women to take a breastfeeding break. The authors wonder whether the regulation in question is still efficient in the 21st century and does not cause problems rather than benefits in practice. In foreign legislation, it is standard that a man, the child’s father, can under certain conditions take a breastfeeding break. The article analyzes Slovak legal norms and compares them with Spanish, Italian and Portuguese legal regulations as well as the chosen decision of the Court of Justice of the European Union regarding breastfeeding break. Methods of analysis, comparison and synthesis were used, which enabled the authors to form comprehensive conclusions as well as suggestions de lege ferenda. The authors’ opinion is, that the legal regulation of breastfeeding break in Slovakia needs to be amended in order to provide a father with the breastfeeding break under certain circumstances.

Captatoria conditio: meaning and admissibility in the light of freedom of testation. Analysis of selected legislations of Western European countries.

Author(s): Anna Paluch / Language(s): English / Issue: 32 (4)/2020

The purpose of this paper is the presentation and analysis of the testamentary disposition, present in some foreign legal orders, known by the Latin name captatoria conditio, being a particular type of conditional appointment to inheritance. The analysis includes functions of captatoria conditio and axiological doubts related to it. In the research, the examination of applicable laws and the comparative methods were used, which allowed the analysis of the form and functions of captatoria conditio and its prohibition in foreign legal orders. Conducted in such a way, the research led to the conclusion that particular systems of the law of succession include different regulations regarding the validity and effectiveness of captatoria conditio. On the basis of the analysis of the functions of captatoria conditio, this paper presents the thesis that in the case of such a disposition mortis causa there is not any excessive interference with the autonomy of the beneficiary mortis causa because he or she is always entitled to reject the inheritance. This conclusion speaks for the admissibility of captatoria conditio if the conditional appointment to inheritance is possible in a given legal system. Axiological doubts do not give arguments for the prohibition of captatoria conditio.

Child Marriage and the Failure of International Law: a Comparison of American, Indian, and Canadian Domestic Policies

Author(s): Marcy J. Robles / Language(s): English / Issue: 1/2018

What is child marriage? The recognized definition does not adequately encompass the experience of child marriage. Child marriage stems from many elements, including coercion, force, and economic deprivation. Furthermore, child marriages have a long-term effect on child spouses, ranging from psychological damage, to health complications, to education and personal limitations. This paper argues that current international treaties and agreements do not specifically or directly address the issue of child marriage. Of those that make an attempt to, fail as a result of lack of enforcement or too much deference to religion as an exception of child marriage prohibition. In comparing three countries – The United States, India, and Canada, it is clear that Canadian policies work best and should be implemented on a larger scale. Current U.S. policies do not fully combat the child marriage phenomena, and although it is ahead of India in this area, it still has a long way to go in terms of development.

CIVIS ROMANUS SUM

Author(s): Nataliya Kiselova / Language(s): Bulgarian / Issue: 2/2020

Citizenship is a political and legal relationship between a person and a state. The expression Civis Romanus sum! declares the full realization of the rights of the Roman citizen in the Roman state and guarantees him immunity during his stay outside Rome. This understanding of citizenship is carried over into the modern state and as an social institution has played an important role. In Roman law Status includes three main elements inherent in every person – freedom (Status libertatis), Roman citizenship (Status civitatis) and marital status (Status familiae), and the change in this status leads to loss of civil rights (capitis deminutio). The modern elements of the status of Bulgarian citizens will also be considered.