Perspectives of Law and Public Administration
Volume 11, Issue 4, December 2022
Table of Contents
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Professor Jānis TEIVĀNS-TREINOVSKIS; Ph.D. Igors TROFIMOVS
1. Possibilities of Applying Forensic Methodology in Latvia and the European Union➤Abstract:The aim of the work is to perform an analysis of certain crimes related to property threats. To analyse the methods and tactics of detection and investigation of the types of criminal offenses under research and on the basis of a detailed study of the peculiarities of the committing of the criminal offenses under research, to develop effective and up-to-date methods of their identification. The following scientific research methods have been used in the development of the work: the teleological method of interpretation; the comparative method; the method of analysis and synthesis; the methods of induction and deduction; the modelling method. Main conclusions: the main problems in the field of the detection and prevention of crime over the last 30 years are that most criminalistics concepts run far behind the requirements of the modern era; changes in tactics related to identification and detection of property crimes have been largely technical in nature, they are lacking a sufficiently high level of theoretical basis to take into account modern technologies used to commit crimes and significantly changed structure of criminalistics characterisation of criminal offenses.
Keywords: criminalistics, methodology, investigation, threat object, psychological condition.
JEL Classification:K42
Page 477 - Assistant professor Oana ADĂSCĂLIŢEI
2. Compliance and Conformity in Maritime Labour Law. The Maritime Labour Convention➤Abstract:The Maritime Labour Convention (MLC 2006) contains all updated maritime labour standards and provides effective procedures to ensure their implementation by the Member States, as well as a mechanism for monitoring compliance. As an element not found in any of the International Labour Organization's (ILO) conventions, its provisions introduce a certification system for social and working conditions on merchant ships. The Maritime Labour Convention of 2006 establishes three distinct levels of regulatory authority in the maritime industry: flag state, port state, and maritime labour supply states. The system established to ensure compliance with the provisions of the Convention consists of inspections, reports, monitoring measures, and legal proceedings in accordance with the applicable legislation. The verification of conformity concerns only compliance with the working and living conditions on board ships. In the event that the fundamental rights of seafarers as provided for in Article III of the Convention are violated, the only way to remedy this is to resort to national enforcement mechanisms or supervisory procedures established under the ILO Constitution. In this article, we intend to present the actual procedures that ensure the implementation of maritime labour standards by the Member States. The article is based on ILO sources and EU legislative provisions and is accompanied by a doctrinal analysis.
Keywords:Maritime Labour Convention, flag state responsibilities, port state responsibilities, labour-supplying states responsibilities, on board and onshore complaint procedures.
JEL Classification:K31
Page 491 - PhD. student Sofia COZAC
3. The Concept of Public Policy in the Case of Annulment of Arbitral Awards➤Abstract:The present article focuses on drawing up the definition of "public policy" in respect of claims for annulment of arbitral awards. Public policy in this case is defined by certain nuances, which have been further developed by national and international case law. The purpose of the analysis is to provide a comprehensive presentation of this concept, through a comparative analysis, both in relation with the concept of public policy as outlined by the Civil Code, as well as in relation with the national and international doctrine and case law.
Keywords: arbitration in Romania, Romanian Code of Civil Procedure, public policy, arbitral rules, international private law, annulment of the arbitral award.
JEL Classification:K15, K33, K39, K49
Page 505 - Professor Milan POČUČA; Professor Jelena MATIJAŠEVIĆ
4. Criminal Acts in the Field of Economic Crime in Banking Operations in Serbia➤Abstract:As defined by the law, a bank is a stock company with the head office in the Republic of Serbia, which has a National Bank of Serbia licence for work and which performs deposit and credit activities, and which may also perform other activities according to the law. The number and variety of the forms which may be assumed by economic crime is extremely dynamic and, consequently, complex. This particularly pertains to the forms of economic crime in banking operations, considering the fact that such activities are very important for business and legal operations in national economies. A significant characteristic of current banking operations is the wide application of information and communication technologies, without which no modern business field may be conceived. Taking the primary topic into account, the paper initially treats the definition and the basic features of economic crime and the criminological characteristics of the forms assumed by economic crime in banking operations. This is followed by a focus on the normative aspect of the criminal and legal regulations of the Republic of Serbia in the sphere of norms concerning criminal acts of economic crime in banking operations, whereas the research part of the paper deals with the frequency of criminal acts of economic crime in banking operations when the work of judicial authorities in Serbia is concerned, bearing in mind the criminal proceedings conducted against adult perpetrators. Methodology-wise, the paper is founded on the theoretical analysis of relevant modern stands in theory, the normative, analytical and deductive methodological framework and the basic quantitative data analysis. The primary legislative source consulted in the research section of the paper is the Criminal Code. The reference period analyzed in this section is the 2018-2020 three-year period, and the data which are analyzed are the officially registered data of the Statistical Office of the Republic of Serbia.
Keywords: banking operations, economic crime, criminal code, securities, payment cards.
JEL Classification:K14, K22, K42
Page 514 - Lecturer Anamaria GROZA
5. The European Patient, between the Values of the European Union, the Public Health Policies of the Member States and the Free Movement of Services➤Abstract:The European citizen who leaves his state of residence to receive medical treatment in another Member State of the Union, is a beneficiary of the free movement of services. Therefore, European citizens should be treated in the host states identically/similarly to the nationals of these states, and the restrictions on mobility, including by the home state, should be analysed from the perspective of the legitimate purpose, necessity and proportionality. But the serious problem of financial resources bars this ideal. For this main reason, European Union law has provided for a system of prior authorisation in the case of patients who want to be treated in other Member States, authorisation on the obtaining of which the reimbursement of the expenses incurred by the patients is conditional. The Court of Justice made this system more flexible for the benefit of patients, but the full reimbursement of medical expenses was recognized only in the case of treatments which have the advantage of not generating a disability. In a Union whose values are human dignity, respect for human rights, social solidarity, the financial impossibility of European citizens with serious diseases of benefiting from effective medical treatments in another Member State, demonstrates the inconsistency of European law with its values.
Keywords: public health, cross-border medical assistance, authorisation, reimbursement of expenses, free movement of services.
JEL Classification:K29
Page 523 -
6. Assessing the Means of Evidence by Forensic Reports in Criminal Cases of Business➤Abstract:The new era of forensic investigation of criminal cases means currently a challenge for the judicial bodies in their duties of finding truth during the criminal proceedings. In achieving this purpose, the role of forensic evidence is as bigger as the forensic reports provide the judges and prosecutors with pertinent, conclusive and genuine data the criminal decisions shall be based on. The current research focuses on assessing the means of evidence by forensic expertise reports in the criminal cases of business, which present a high interest both for the area of forensic science and the decision-making process in criminal cases. In this respect, it has been identified three particular criminal cases related to the field of business. They refer to the cases of economic offenses, business-related corruption, and organized crime. The work uses a qualitative research methodology with elements of case-law references in the field of business. The results obtained during the conceptual study have stated that the forensic reports submitted by the forensic experts contribute to solving the criminal cases related to the field of business and making solutions as long as they are corroborated with the other means of evidence administrated in the criminal proceedings. The research conducted has been directed to the idea that, as a general rule, the forensic reports do not have a pre-established judicial value, although they provide scientific evidence, which are also very difficult to be reversed. Considering all these aspects, the conclusions state that assessing forensic reports in criminal cases of business is a complex activity which the judges should pursue in order to pronounce legal and evidence-based decisions.
Keywords: criminal proceedings, field of business, forensic reports, assessing means of evidence, scientific evidence, criminal cases of business.
JEL Classification:K14, K42
Page 532 - Postdoctoral research fellow Oyesola ANIMASHAUN; Professor Howard CHITIMIRA
7. Is the Covid-19 Pandemic Rewriting the Rules of Corporate Governance in Nigeria?➤Abstract:The corona virus (Covid-19) pandemic which started as a public health emergency swiftly evolved into a global financial and economic crisis of epic proportions. Thus, it had a far-reaching effect on Nigerian corporations. The advent of Covid-19 seems to have changed the guiding principles of corporate governance from the agency theory to stakeholder theory due to the heightened expectations for societal engagement from corporations in Nigeria. For instance, the management of Access Bank which donated 1 Billion and other materials like ambulances to the Federal Government of Nigeria, decided to downsize staff by 75 percent in the same week. The outcry by the public on the challenges caused by the aforesaid huge donation vis-à-vis the redundancy policy led Access Bank’s management to reverse its earlier decision and for the regulatory body for the banking industry, the Central Bank of Nigeria, to prohibit all banks in Nigeria from retrenching their employees during the pendency of the pandemic. The article examines the impact of Covid-19 on corporate governance in Nigeria through the prism of stakeholder theories of corporate governance. The authors submit that Covid-19 has a profound effect on corporate governance in Nigeria and it seems to be inducing a review and amendment of certain provisions of Companies and Allied Matters Act, 2020 to promote good corporate governance in Nigeria.
Keywords: Covid-19, corporate governance, corporate law, management, directors, stakeholder theories.
JEL Classification:K22, K32
Page 545 - Associate professor Cristian DUMITRESCU
8. Strategies for Developing Monetary Policy in Emerging Countries➤Abstract:Monetary policy is a primary element of economic policy, as with its help central banks can act and influence both the demand and supply of money in the economy. The main purpose of monetary policy measures is to ensure price stability, effective control over inflation, as well as the stability of the national currency. A very important aspect to highlight about the European Central Bank is that the objective of monetary policy aims at the strategy of maintaining price stability and the inflation rate at lower levels. Any decision is the product of a procedure that involves the assembly of a large number of primary information. The monetary policy decision is also subordinated to these procedures, but simple information, regardless of its degree of organization and hierarchical processing, does not seem to be sufficient to be able to make a decision.
Keywords: monetary policy, European monetary integration, financial stability, price stability, inflation targeting, emerging economy, European Central Bank (ECB), convergence process.
JEL Classification:K22, K34
Page 566 - PhD. student Gabriela TEODORU
9. Legal Restrictions on the Sale of Forest Land in Romania. Comparative Analysis with French Law➤Abstract:At European level, there is a general tendency of forestry policies to extend and strengthen the individual rights of land owners. Member States, especially those in Central and Eastern Europe, retain some legislative levers, especially regarding the sale of forest land, forest management, exclusion and withdrawal rights. All these measures that some Member States apply with regard to privately owned forests are aimed at avoiding the accentuated fragmentation of forest lands and the excessive exploitation of forests, in order to ensure sustainable development. The right of pre-emption represents one of the measures that Romania keeps in order to be able to achieve these objectives, having a regulation comparable to other Member States, which considered that a control is still required in terms of forest land sales. In France, changes to the Forestry Code in 2012 introduced a right of preemption in favor of the state or nearest neighbors, whereas previously, the owner was free to decide to whom to sell the forest land. The French legislation regarding the right of pre-emption is closest to the Romanian one in this matter. Considering that there is no common EU forestry policy, it is appropriate that in the next period legal professionals analyze all the difficulties that will appear in the application process of different national and regional jurisdictions, as well as the practical way in which their application is likely to lead to achieving the objectives assumed by the legislator. Surely, sooner or later, the Member States will have to agree on a common policy in forestry matters, and the research undertaken during this period will be used for the correct evaluation of the normative framework to be adopted at the Union level.
Keywords: legal conditions for acquiring forest land, right of preemption, legal preemptors, sustainable development, restrictions, exclusion and withdrawal rights.
JEL Classification:K11, K12, K15
Page 572 - Senior lecturer Jean Chrysostome KANAMUGIRE; LLB student Emmanuel Nkulukeko RADEBE
10. Analysis of the Right to Basic Education in South Africa➤Abstract:The right to basic education refers to the learning needs appropriate to the experience and age of the learners. It contains primary and secondary educations where learners perform educational activities to achieve learning outcomes. The Constitution provides the right to basic education and states that everyone has the right to basic education as well as adult basic education. Every child must access basic education so that he or she can develop his or her talents, mental and physical abilities. The right to basic education is measured on the four important principles, namely availability, accessibility, acceptability, and adaptability. The right to basic education still experiences some challenges, such as lack of sufficient schools, classrooms, transport of learners, properly trained teachers, delivery of teaching and assessment materials in an environment that is conducive to learning. The choice of language of instruction is also still a challenge in exercising the right to basic education. There is a quest to include children with different disabilities in the learning activities for basic education. The room for improvement in necessary in the education sector to ensure that the right to basic education is adequately available to all learners in South Africa.
Keywords: education, right to basic education, learners, availability, accessibility of education.
JEL Classification:K10, K33, K38
Page 586 - Professor PhD. habil. Iulian NEDELCU; Master student Andreea-Constanța-Mihaela NEDELCU
11. Currents of Thought Regarding the Rule of Law. The “Rationalist” School and the Social Contract➤Abstract:Among its most prominent representatives, Réné Déscartes, a special personality, characterizing himself as „full of enthusiasm", discovering the foundations of an admirable science", it lays the foundations of modernity, a science that places man at the center of scientific and philosophical concerns. If antiquity pays special attention to collectivity, man being only a means to achieve its goals, for modernity, the goal is man. The true orientation towards self-knowledge begins with Déscartes, through that famous maxim "cogito ergo sum" (I think therefore I exist) which highlights human reason and aims to place man at the center of the entire universe. It is established with Déscartes, legal formalism, and this because its philosophy eliminates any possibility of a given reality imposing itself as such. Déscartes' cogito is therefore the expression of the existence of a fortress that cannot be invaded by the collectivity and the human interiority that is revealed to be foreign to any social inclusion. In other words, "the irreducibility of the individual and the social is constituted in the reason for Déscartes' silence on the political”. However, it can be seen in his work how "he fights tyranny and supports the legitimate monarchy in its absolutist sense”.
Keywords: the foundations of science, scientific and philosophical concerns, human reason, "cognito ergo sum".
JEL Classification:K10
Page 597 - PhD. student Alina ILIESCU
12. Some Assessments of the Maintenance Contract Free of Charge➤Abstract:Traditionally, the free maintenance contact is qualified as a donation, the solution being based mainly on the similarities between it and the life annuity contract. That solution, formulated before the entry into force of the current Civil Code, when the maintenance contract did not enjoy its own rules, remained optimal after 2011, even though, at present, in addition to the fact that there are special rules applicable to it, no essential elements such as legal differences between the services arising from the life annuity contract and those having their source in the maintenance one, but also those resulting from the conclusion of a donation. In addition, since its nature as an act with the title free of charge is unequivocal, it is also necessary to clarify its belonging to the subcategory of liberalities or disinterested acts. This is because, under the law of other States, the maintenance contract is configured as one for consideration, and for the situations in which the conventional maintenance claim is free of charge, the opinions are much more diversified. Analyzing these aspects and identifying sufficient arguments, we support the sui generis character of the maintenance contract free of charge, an act that is on the border between liberalities and disinterested contracts.
Keywords: contract, maintenance, liberality, disinterested contract, sui generis contract.
JEL Classification:K12
Page 605 - Lecturer Nqobizwe Mvelo NGEMA
13. Ultimate Recognition of Polygynous Muslim Marriages and the Abolition of Child Marriages in Muslim Marriages: An Appraisal of Women Legal Center Trust v. the President of RSA➤Abstract:Muslim communities have settled in South Africa more 300 years ago, but their religious marriages were not recognised in South Africa. Muslim marriages were denied recognition merely because they are potentially polygynous in nature. This non-recognition has created many hardships for Muslim women. These hardships has prompted the Women Legal Centre (WLC) to institute a class action compelling the government to enact legislation recognising Muslim marriages. The Supreme Court of Appeal ordered for the recognition of Muslim marriages for all purposes and for the abolition of child marriages in Muslim marriages. The SCA Judgment was later confirmed by the Constitutional Court. The decision of the SCA is appraised; however, to permit marriage of a person under the age of 18 under certain circumstance might defeat the very aim of having the minimum age for marriage in the first place. This is so because Muslim marriages are notorious for permitting child marriages.
Keywords: recognition of polygynous Muslim marriage, abolition of child marriages, Muslim personal law, South African Law Reform Commission.
JEL Classification:K36
Page 613 - Associate professor Ana ȘTEFĂNESCU
14. Considerations Regarding the Conditions for Retaining Tenure for Teachers Who Must Retire and for Reinstatement or Continuation of Employment for Those Retired➤Abstract:This study presents the conditions for maintaining the tenure of teachers who have to retire and for the reinstatement or continuation of employment of retired teachers, as they emerge from the analysis, not simple and necessarily in its entirety, of the provisions of S. 289 of Law no. 1/2011 on national education, of which only those of paragraphs (1), (3), (6) and (7) are still applicable. Especially in the light of the new form of paragraph (7) introduced by item 37 of Article I of Government Emergency Ordinance no. 117/2013 due to the fact that, as noted in its explanatory memorandum, by Constitutional Court Decision no. 397/2013, the previous form of this paragraph was declared unconstitutional. The analysis of this decision is conclusive from the perspective of the teleological method of interpretation, which together with the logical, historical, systematic and grammatical method helps us in our legal research to provide solutions; each university had/has to transpose the provisions which are difficult to interpret into a methodology approved by the university senate, providing for the other legal and procedural conditions. The study is also important from the perspective of the new draft of the higher education law which seems to omit the criticisms and conclusions of the Constitutional Court referred to above.
Keywords: education law, draft law on higher education, age 65, retirement, continuing to work as a tenure teacher, continuing to work and reinstatement of those who have retired.
JEL Classification:K31
Page 621 - Lecturer Anca-Jeanina NIȚĂ
15. The Standardized and Uncontroversial “Administrative” Approach to Judging Contravention Complaints, Invalidated by Decision No. 404/2022 of the Constitutional Court of Romania➤Abstract:The aim of this study - occasioned by the Romanian Constitutional (RCC) Decision. No. 404 of September 21, 2022, we bring back into discussion the obligation of the legislative forum not to ignore the principle of the security of legal relations in the component related to the clarity, accessibility, and predictability of the law. The legislative proposal for the amendment and completion of Government Ordinance (GO) no. 2/2001 on the legal regime of contraventions (PLx 598/2021) - based on the standardization of the contravention procedure and the introduction of the written procedure, in the council chamber, with the removal of the subpoena of the parties, in the case of specific complaints, in order to make justice more efficient. The opinions of the Legislative Council and the Superior Council of the Magistracy are observed and analyzed - through the lens of its considerations and effects, RCC Decision no. 404/2022 by which the notification of unconstitutionality formulated by the People's Advocate was admitted. It is argued that the fundamental mission of justice as an act of judicial justice and as a public service cannot be subordinated to a purely administrative approach, which abandons the requirements of the rule of law and mutilates the right to a fair trial. Considering the many changes and additions to GO no. 2/2002, respectively attempts to change invalidated by the administrative litigation court, we conclude with the observation that legislation for the sake of legislation is a practice that must be abandoned, the need to adopt a Contraventional Code being brought back into discussion.
Keywords: Constitutional Court of Romania, administrative law, contravention complaints, legislative process.
JEL Classification:K23, K41
Page 631 - Assistant professor Mejd Aures BENLALA
16. The Characterization of the Demand Deposit as a Loan under Fractional Reserve Banking: A Critical Legal Analysis➤Abstract:Under fractional reserve banking system, banks activity and operations rely primarily on demand deposits, which are often known as current accounts, especially when it comes to granting loans. Consequently, bank deposits are the primary source of ‘inexpensive’ funding for commercial banks. This article aims to analyze and discuss the widely agreed upon characterization of the demand deposit as a loan contract. Since all today’s legal systems consider the demand deposit a loan contract, this article attempts to challenge this characterization by discussing the arguments and building blocks of the loan theory and examining the essence of both contracts through the lens of law and jurisprudence. The paper concludes that the demand deposit contract cannot be considered a loan contract, with supporting solid arguments from economic and legal perspectives.
Keywords: fractional reserve banking; jurisprudence; demand deposit contract; loan contract; civil law; common law; hybrid legal systems.
JEL Classification:K12, K15, P40
Page 638 - Lecturer Ovidiu Horia MAICAN
17. International Aspects of Pollution➤Abstract:The transboundary effects of industrial accidents must be analyzed in the context of Romania’s position as European Union member. During the Baia Mare accident in 2000, Romania was not member of European Union. Key principles of international environment law are included in multilateral conventions and other international legal instruments. The issue of transboundary effects of indstrial accidents is an important problem in north America too, mainly in United States of America. Finally, the liability regime is very important in order to cover the damages produced by such dangerous activities.
Keywords: pollution, international law, environment law, Romania, European Union.
JEL Classification:K21, K33
Page 650 - Professor Ismail ZEJNELI
18. General Views on Legal Entities as the Subject of the Criminal Offense➤Abstract:In addition to natural persons whom the law recognizes as subjects of the law, the law also recognizes the subjectivity of other persons as bearers of rights and obligations or legal persons. In contemporary criminal law, the form of criminal liability for legal entities has also been introduced, and depending on the national systems of the states, we come across several models that regulate the liability of legal entities. In some legislations, the criminal responsibility of legal persons for the commission of criminal offenses is not foreseen, but only the misdemeanour responsibility is regulated by a special law, in other legislations they are based on the regulation of the responsibility of legal persons for the commission of criminal offenses by special laws (thus, Slovenian, Croatian, Kosovar legislation, etc.), while in Anglo-Saxon criminal law and in most European criminal legislation, it means the responsibility of legal entities for the actions of its bodies and responsible persons, in the framework of general criminal legislation. In the Republic of North Macedonia, with the Amendment of the Criminal Code of Macedonia of 2004, criminal liability is also provided for legal entities and a special system of criminal sanctions. It is about innovation that contains a variety of specifics in relation to the general concept of the criminal offense: criminal responsibility for legal entities, which is collective and presumed in nature, as opposed to the responsibility of natural persons, which is individual and subjective.
Keywords: legal entity, criminal responsibility, legislation.
JEL Classification:K14
Page 662 - Lecturer Lucian-Sorin STĂNESCU
19. Indicators for Measuring Constitutional Efficiency. An Evaluation of the Romanian Constitution after 30 Years➤Abstract:Explainig the concept of the effectiveness of the constitution requires, first, as in a mathematical equation, the identification of the classic criteria of normative validity of a fundamental law, i.e. the supremacy of the law, the separation and balance of powers, the existence of the rule of law, the effectiveness of the guaramtees of respect for human rights, the application of specific sanctions in case of constitutional slippages. The introduction into this equation of some variables such as the optimal lifespan of a constitution, the stabilit of the fundamental law or the phenomenon of citizen participation is necessary to draw conclusions on some effects susch as its succes, legitimacy and ofelimity, as well as the happiness of its citizens. By applying this method of analysis to the Romanian Cosntitution of 1991, the study aims to verify whether it was able in its existence of three decades to ensure the achievement of its initial goals, as well as its normative and non-normative functions, which what should be reflected in its ability to regulate conflicts in the constitutional space, the force of imposing its specific norms and sanctions, to ensure the optimal and sustainable functioning of state institutuions and to create and obtain the faithful employment of its beneficiaries in respecting its supremacy, as an expression of their ideal of a politically constituted society.
Keywords: indicators for measuring constitutional efficiency, the optimal lifespan of the constitution, constitutional ofelimity, citizens happiness.
JEL Classification:K40, K42
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