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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.

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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.

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Considerații de drept comparat privind regimul juridic al mărcilor – S.U.A. versus România

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Considerații de drept comparat privind regimul juridic al mărcilor – S.U.A. versus România

Author(s): Ruxandra Vișoiu / Language(s): Romanian / Issue: 02/2021

Although in our daily activity we work mainly in the Romanian law (or, at most, the European law), we are firm supporters of the need to broaden our horizons and to understand the foreign legal systems in order to enrich our knowledge, but also to grow as professionals of law; in particular, when we refer to countries such as the United States, an important economic power, with a solid system of law, from which we can draw the inspiration ourselves. This type of „legal inspiration” helps us a lot to understand other systems of law and to collaborate in cases such as the enforcement of foreign legal decisions, the application of foreign law in local files, helping companies to develop their businesses also in other parts than the country of origin – including Romania. In addition, the Romanian law has been substantially improved over time, having as source of inspiration the legal provisions from other countries. The trademark law – the need to explore and compare the systems of Romanian and American law – resulted, first of all, from the practical need, but also from the desire for knowledge. Although at first glance it looks very different, the U.S. trademark system is very similar to the Romanian one. There are the aspects that could be improved if we found a way to include them in our own legal system. There are some similarities, but also differences, between the regulation of trademarks in the Romanian and American legal systems, and we have tried to highlight some of them. Primo Angeli, an expert in brands, mentioned: „A great trademark is appropriate, dynamic, distinctive, memorable and unique.” Thus, whether we call it brand or trademark, we are not as different as we might think.

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GPS Investigations under Constitution of Japan – Comparison with the U.S Cases.

Author(s): Yuichiro Tsuji / Language(s): English / Issue: 1/2018

This paper reviews GPS investigations in Japan and the United States. In 2017, the Japanese Supreme Court held that warrantless GPS search was illegal. The case reviewed in this article illustrates the boundary of permissible investigation using advanced technology and highlights the fact that rapidly developing technology challenges legal research. In the 2017 decision discussed in this paper, law enforcement challenged the permissible scope of investigating warrantless GPS searches; a challenge common in other countries, like the U.S. The U.S. Supreme Court has already decided this case in United States v. Jones decision in 2012. Both of Japanese and American decision takes similar reasoning for their decisions.

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IDENTIFYING THE RIGHT OF A PERSON AGGRIEVED BY A PUBLIC AUTHORITY IN THE CONSTITUTION OF ROMANIA, IN THE CONSTITUTION OF REPUBLIC OF MOLDOVA AND IN COMPARATIVE LAW

Author(s): Cătălin-Radu Pavel / Language(s): English / Issue: 2/2020

The current study aims to present selective aspects regarding the right of a person aggrieved by a public authority and the findings in the Constitution of Romania, in the Constitution of Republic of Moldova and in comparative law. The right of a person aggrieved by a public authority is regulated by the Article 52 of the Constitution of Romania. The right of a person aggrieved by a public authority in Romania ensures and protects the manifestations of will of the citizens in relation with the public authorities, as well as with other rights, freedoms and citizens' interests, thus ensuring a good administration of the state in favor of the citizens. The methods used in drawing up this study are: the comparative method, the historical method, the logical method, the sociological method and the quantitative method. The results of this research have highlighted the findings in the Constitution of Romania, in Constitution of Republic of Moldova and in comparative law about the right of a person aggrieved by a public authority.

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RATIO LEGIS OF NORMS ON THE REGULATION OF NATIONAL HEALTH INSURANCE IN THE LAW OF REPUBLIC OF INDONESIA NUMBER 40/2004 CONCERNING NATIONAL SOCIAL SECURITY

Author(s): Bram B. Baan,Suhariningsih Suhariningsih,Abdul Madjid,Yuliati Yuliati / Language(s): English / Issue: Special/2020

The objective in the enaction of the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System is that everyone has the rights to get social security in order to be able to fulfill proper basic needs for their life and increase their dignity towards the realization of a prosperous, fair and wealthy Indonesian society that appropriate and fulfills the sense of justice in accordance with the mandate of the Constitution of the Republic of Indonesia. This paper analyzes the objectives in the enaction of the Law on National Social Security System of the Republic of Indonesia. The argument in this paper explains that the purpose in the implementation of Health Insurance, which is part of social security, is to achieve Universal Health Coverage for all Indonesian citizens so that all citizens can easily access health services. However, until now this has not been achieved, and some articles in the Law of the Republic of Indonesia Number 40 of 2004 concerning National Social Security System are contradicting to Article 28 H Paragraph (2) and Article 34 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

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RECONSTRUCTING THE ASSIGNMENT OF INDONESIAN NATIONAL ARMY’S (TNI) DUTY IN COUNTERING TERRORISM

Author(s): Widarsono Widarsono,Prija DJATMIKA,Herman Suryokumoro,Dhiana Puspitawati / Language(s): English / Issue: Special/2020

In analyzing legal materials, one of the applied techniques as contained in the research method is reconstructive. Reconstructive analysis technique for legal materials comes from the term reconstruction. The meaning of reconstruction in the context of analysis is in term of the building of the material object under the study according to critical epistemology based on the value to be achieved, so that a new juridical construction is formed. There construction of the meaning of a legal rule is carried out by initially understanding the meaning in a particular regulation or article in a law by being systematically connected based on philosophical and analytical approaches. In reconstructing laws and regulations regarding counter-terrorism, this research refers to several theories, including the rule of law theory, the theory of authority, and the theory of legislation. The content of the laws and regulations that need to be reconstructed is the title of the law that regulates the eradication of terrorism, and regulations related to authority between Indonesian National Police (POLRI) and Indonesian National Army (TNI), as well as the role of National Security Council (DKN) in the ideal laws and regulations, which if referring to the Law Number 5 of 2018, it seems to be played by the National Counterterrorism Agency (BNPT) with all its special limitations related to the eradication of terrorism. With regard to regulatory reconstruction, that the title of the current legislation, namely the Law on the Eradication of Criminal Acts of Terrorism, should be revised to use a broader title, for instance into the Law on the Eradication of Terrorism, by omitting the phrase ‘Criminal Acts’ due to its use, the term ‘Criminal Acts’ seems to reflect to be only on the field of Criminal Justice System. Despite of that, the problems regulated in counter-terrorism are broader than that, because they involve TNI in overcoming acts of terrorism as part of TNI's duties from military operations other than war, and are carried out in accordance with the main duties and functions of the TNI. From the epistemological aspect, there are quite fundamental changes related to the aassignment of TNI and POLRI in dealing with terrorism. The regulation regarding TNI and POLRI certainly cannot be separated from the discussion on the authority of the two institutions, given the intersection of authorities.

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Responsibility to Protect and Human Security: Doctrines Destroying or Strengthening the Sovereignty?

Author(s): Jenna Uusitalo / Language(s): English / Issue: 1/2018

Responsibility to protect (R2P) and human security are controversial doctrines which reflect the international politics rather than purely defend their original legal aims. Simultaneously both doctrines demonstrate the change in the international law and politics as well as challenge the classical perception of the sovereignty. Through the practical examples the present article illustrates how these doctrines are affecting to sovereignty and discusses some selected problems attached to the interventions applied under these principles. Essentially the article argues that, despite their noble ideology, doctrines of R2P and human security are too extensive to be applied coherently by the international community, but that they can nevertheless have potential to strengthen sovereignty.

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The Importance of the Directive 2011/83/EU for the Transposition of the Directive 1999/44/EC into the Polish Law in the Field of the Seller‘s Liability for Physical Defects of Goods

Author(s): Michał Hejbudzki / Language(s): English / Issue: 1/2018

The Author examines the importance of the Directive 2011/83/EU for the transposition of the Directive 1999/44/EC into Polish law in the field of seller‘s liability for physical defects in the item sold. These considerations were prompted by the Act on Consumer Rights of 30 May 2014 including the amended provisions on liability under warranty which entered into force in Poland on 25 December 2014. The aim of the considerations included in this article is to identify new limits of liability for the quality of goods, which were determined by revised provisions of the Civil Code resulting from the aforementioned Act and to show the significance of the implementation of the Directive 2011/83/EU into the Polish law for this process. The matter of the analysis was subjected to both the subjective limitations, i.e. it was reduced only to seller-consumer legal relationships, and to the objective limitations, i.e. related only to liability under warranty for physical defects resulting from sales contracts.

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Vanishing Set-Aside Authority in International Commercial Arbitration

Author(s): Meng Chen,Chengzhi Wang / Language(s): English / Issue: 1/2018

Traditional set-aside theory is subject to considerable challenges as a result of an uncompromising trend towards autonomy and internationalism in international arbitration. The silence and ambiguity of international law regarding enforcement of set-aside arbitral awards allow some states to abandon their own set-aside authority or ignore set-aside decisions made by competent courts. This article presents a range of evidence that demonstrates the enforcement of set-aside arbitral awards has become a common phenomenon. This article first introduces robust academic debates regarding set-aside authority. Then this article exposes omission and ambiguity in the legal source, which leads to confusion in enforcement proceedings of set-aside arbitral awards. This article describes and analyses selected cases and practical data in order to summarize the approaches taken by national courts when reviewing foreign set-aside decisions. Finally, this article briefly evaluates the most promising solutions to the contradictory enforcement proceedings of set-aside arbitral awards.

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Резенция за книгата на Ралица Костадинова „Условното осъждане по българското наказателно право“

Author(s): Ralitsa Ilkova / Language(s): Bulgarian / Issue: 1/2020

The review is dedicated to the monograph entitled “Suspended Sentence under Bulgarian Criminal Law” by Ralitsa Kostadinova. In the book the author has pointed her scientific research in an academic area, namely that of suspended sentence, which so far has not been subject of a thorough and in-depth scientific analysis in Bulgaria, but at the same time it is of great practical significance in particular with regard to the work of the judicial bodies. The monograph under review undoubtedly contributes to the criminal legal theory.

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