Perspectives of Law and Public Administration
Volume 12, Issue 3, October 2023
Table of Contents
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Professor Ana PAVLOVSKA DANEVA; Assistant professor Konstantin BITRAKOV
Abstract:This paper deals with the core preventive anti-corruption authority in the Republic of North Macedonia (hereinafter: Macedonia), which is the State Commission for Prevention of Corruption (hereinafter: SCPC). The main research question is: can and does the SCPC effectively control the public administration as per its legal competencies and does it therefore prevent corruption successfully? The final objective is to provide critical observations in terms of the SCPC’s functions, tasks, and powers, as well as its performance and the effects of its work, which would later allow for recommendations for improvement. In other words, the paper will indicate that a discrepancy exists. By law, the SCPC is the key authority for prevention of corruption in the public administration. In reality, the SCPC’s successes are rather humble – the administrative corruption has hardly been eliminated. The content of the paper reflects its object and the idea behind it. It shall pay attention to the existing research in terms of the prevalence of corruption in the Macedonian public administration (so that the national context is given), the role of the SCPC by law and its performances.
Keywords: State Commission for Prevention of Corruption, corruption, public administration, anti-corruption authorities, Republic of North Macedonia, prevention.
JEL Classification: H83, K14, K23Macedonian State Commission for Prevention of Corruption: Can It Effectively Control and Prevent Corruption in the Public Administration?
Page 294 - Lecturer Camelia SPASICI
Difficulties in Implementing European Contractual Institutions in National Common LawAbstract:Romania's accession to the European Union has produced profound legal changes, including in legislative, doctrinal and practical terms. In matters of contract, the provisions of the European directives on the regulation of legal relations between professionals and consumers have created and continue to produce disputes, especially in the field of the harmonisation of the new consumerist institutions to the common national law. At the present stage, the general theory of the contract is subject to pressure exerted by the new rules, full of vitality, of the law of consumption or competition law. The main consumerist institutions subject to the national implementation process are: pre-contractual obligations, unfair terms and the consumer's right of withdrawal. The study insists on the difficulty of harmonizing the above institutions, in the context of the new legislative changes in the field, especially of the Emergency Ordinance of the Government. no. 58/2022. The work is structured in four sections: "The common law contract and the consumption contract", "Pre-contractual obligations: conditions of validity special to consumption", "Unfair terms: manifestations of pre-contractual will" and "Consumer withdrawal: denunciation of progressive consent".
Keywords: contract in civil law, consumer contract, pre-contractual obligations, unfair terms, consumer's right of withdrawal.
JEL Classification: K15, K33
Page 307 - Associate professor Dragoș DINCĂ; Lecturer Bogdan BERCEANU; Lecturer Cristina NICOLESCU
Comparative Aspects Regarding the Civil Servants Professional Training in the Local Public Administration in RomaniaAbstract:This paper investigates the legal and institutional framework necessary for the implementation of the right and obligation of civil servants to continuously improve their skills and professional training as stated in the Romanian Administrative Code (Emergency Ordinance no. 57 /2019). In order to highlight this right of civil servants, we carried out a bibliographic analysis presenting legal aspects regarding the obligations of training, the priority areas of training and improvement topics at the local public administration level. As research methods, a short questionnaire was conducted among local public institution employees - from three different territorial administrative units of the local public administration – 1st District of the Bucharest City, the Onești Municipality, and the specialized body of Hunedoara County, in order to see how the civil servants use the right for professional training. The results of the study should outline the degree of participation in training courses, the subject courses attended and the perception regarding the utility of training topics, of the civil servants.
Keywords: regulations, civil service; long life learning, courses, skills, performance.
JEL Classification: H83, K23
Page 319 - Research professor Howard CHITIMIRA; Postdoctoral research fellow Elfas TORERAI
A Legal Analysis of Work-Care Leave Policies and the Promotion of Gender Equality in the South African WorkplaceAbstract:The United Nations (UN) has come up with several Sustainable Development Goals (SDGs) for its 2030 vision. One of these SDGs deals with the need for all countries to promote gender equality. The gender equality goal is premised on empowering women and girls with various economic opportunities. The assumption is that in many countries, including in South Africa, women and girls are marginalised socially, culturally, economically, and politically. To this end, it should be noted that the South African constitution promotes equality for all persons. It also provides for fair labour practices. Labour statutes such as the Labour Relations Act 66 of 1995 (LRA), the Employment Equity Act 55 of 1998 (EEA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) provide for, inter alia, the realisation of gender equality in the South African workplace. This includes promoting a health balance between work and care obligations for women. While gender equality is a noble goal, its pursuit exposes some of the underlying inequalities that have not been fully addressed in South Africa. Historically, labour rights have been skewed against African or black men in the South African workplace. In the euphoria of a democratic South Africa, the new push has been to promote equality of men and women in the workplace. This tends to overlook the fact that African men have hardly enjoyed work-care obligations. In this regard, the South African labour laws offer very little for the African men. Consequently, little has been done to provide men with better work-care conditions in the South African workplace. Thus, despite efforts to promote gender equality, women still disproportionately shoulder the care burden in South Africa. This article provides that a lot needs to be done to promote gender equality and balance how the rights of both women and men are protected in the South African workplace.
Keywords: Sustainable Development Goals, gender equality, workplace, labour rights, marginalised.
JEL Classification: K31, K38
Page 336 - PhD. Tincuța GUDANĂ VRABIE
Mentoring Management in Public Administration Performance DevelopmentAbstract:The performance of public administration is the guarantor of public management based on knowledge and adaptability of economic and social conditions to the modern requirements of society. The accumulation of ideas, experiences and performance achieved so far in public administration can be improved by providing public mentoring? The answer to this question will lead to the conceptualisation of mentoring for the public sector as a way to achieve performance in the public sector, through sectoral participation in individual and collective performance development and thus the professionalisation of the public sector. Fostering the development of skills and emphasising qualities of managers and non-managers will result in the shaping of individual professional identity and organisational culture identity. Optimisation of mentoring programmes is required by the flow and mobility of staff in public administration, who can achieve performance by adapting the mentoring process to the demands imposed by social, economic, cultural, political and professional conditions.
Keywords: public sector, public management, mentoring, performance, public administration
JEL Classification: H83, K23
Page 348 - Senior lecturer Jean Chrysostome KANAMUGIRE; LLM student Phakisho Jerry MELLO
Violent Strikes and Their Effects on Fundamental Rights in South AfricaAbstract:The Violent strikes are serious problems in South Africa. However, the international and regional legal frameworks, the Constitution as well as the national legislation provide for the protection of the right to strike for employees. Workers are therefore entitled to exercise their right to strike under the prescribed legal frameworks. The strikes are frequently characterised by violence and harm in every sector. There are compelling reasons for employees to embark on strikes and they are discouraged from engaging in acts of misconduct during strikes. Violent strikes have devastating effects on the fundamental rights of individuals. They usually cause injury to members of the community and non-striking workers. Therefore, they unreasonable and unjustifiably limit the freedom to exercise the fundamental rights. The use of violence during strikes is a major concern as it negatively defeats the purpose of strikes. Such violence has a negative impact on the lives of non-striking employees and undermine the rights to property, dignity, trade, freedom and security of the person. Striking employees must take reasonable steps to avoid violence and ensure the protection of fundamental rights of all other persons during the strikes.
Keywords: right to strike, employees, employers, workplace, fundamental rights, violence.
JEL Classification: K38
Page 354 - Professor Natalia Veronica STOICA; PhD. student Liviu Alexandru NARLĂ
Reflections on the Successional Representation of the Unworthy RenunciantAbstract:The efforts to adopt a new Civil Code, initiated in the period 1999-2004 and finalized in 2011, aimed to expand the scope of representation in succession cases, including cases involving unworthy heirs and renunciants. However, legislative stagnation partially prevailed, as the Law no. 287 of 2009 on the Civil Code, with amendments introduced by Law no. 71/2011 for its implementation, only regulated the possibility of representation for unworthy heirs and not for renunciants. The partial modernization of the rules on representation in succession raises new questions and the need for answers. In the current context of the regulation of representation in succession, we aim to address the legitimate question of whether an unworthy heir can renounce inheritance and, if so, whether a renunciant unworthy heir can be represented by their descendants. We note that in the legal doctrine associated with the Civil Code of 1864, no speculation was made regarding this legal situation, as an unworthy heir could not be represented in succession, and such a discussion would have been pointless. Therefore, we will present the historical and evolutionary journey of the institution of representation in succession, from Roman law to modern times, as well as the winding path of adopting a new Civil Code in this area. By doing so, we can reach a valid conclusion regarding the issues addressed in this material.
Keywords: representation; unworthiness; renouncer; inheritance.
JEL Classification:K15, K39
Page 365 - Senior lecturer Moffat Maitele NDOU
Traffic Rules in Gated Communities in South Africa: A Reflections on Mount Edgecombe Country Club Estate Management Association Ii (Rf) NPC v. Singh CaseAbstract:In a recent Supreme Court of Appeal judgment in Mount Edgecombe Country Club Estate Management Association II (RF) NPC v. Singh 2019 (4) SA 471 (SCA) (Mount Edgecombe v. Singh), the court found that a homeowner’s association has the power to regulate traffic on the roads within a gated estate. The SCA found that, since the roads were private roads, and the National Road Traffic did not apply; the owners of the properties within the estate were contractually bound to comply with the rules of the homeowner’s association. The homeowner’s association was entitled to make traffic rules and to police such rules in the roads within the estate. The SCA found also, in passing, that even if the roads were public roads, the owner of property in the estate would still be contractually bound by the rules. Such rules would not be against public policy. This submission argues that the SCA is correct that the roads are private roads, and the property owners are contractually bound by the rules. However, the position would be different in respect of public roads. The homeowner’s association may only enforce the rules by displaying road signs and they can only do so if they are authorised in terms of section 57 of the National Road Traffic Act. Displaying road signs on a public road without authorisation is an offence and if the roads in Mount Edgecombe v. Singh were public roads, it would be against public policy to enforce the rules. The homeowner’s association would need to seek authorisation before enforcing such rules.
Keywords:public road; private road, traffic offences, gated community; public policy; domestic employee; contractual relationship; road traffic signs; speeding; authorisation.
JEL Classification: K25
Pages 375 - Associate professor Dinu OSTAVCIUC; Associate professor Constantin RUSNAC
Methodological Recommendations Regarding the Initial Stage of Investigating Crimes from Previous Years in Which the Person Who Can Be Accused Was Not Placed under the Indictment, after the Suspension of the Criminal ProsecutionAbstract:In the elaborated article, the authors addressed the existing tactical-procedural peculiarities at the initial stage of investigation of crimes from previous years in which the person who can be charged was not placed under the indictment, after the suspension of the criminal investigation. Although the criminal procedural legislation that regulates the activity of suspending and resuming criminal prosecution during the last decade has not undergone essential changes, the subject of the investigation of crimes from previous years in which the person who can be charged, from a forensic point of view, has not been placed under the indictment, has not been sufficiently researched. In this sense, it is necessary to develop methodical recommendations that would govern the activity carried out by the person carrying out criminal prosecution at the initial stage of investigation of crimes from previous years in which the person who can be charged was not placed under the indictment, after the suspension of the criminal prosecution.
Keywords: undetected crimes, suspension, resumption, criminal investigation, criminal case.
JEL Classification: K39
Page 387 - LLM. Candidate T. MUDZIELWANA; Professor Kola O. ODEKU
Reinvigorating the Right of Access to Adequate Housing and the Institutions Responsible for the Enforcement of This Right in South AfricaAbstract:Essentially, this paper reiterates the constitutional obligation to ensure that there is ample access to adequate housing in South Africa. The paper contends that in order to provide and deliver this constitutional right to the poor and the needy in South Africa, government has established various institutions to accomplish this objective. However, the paper notes that despite this, officials responsible to perform and deliver have dismally failed to ensure unhindered delivery. It is against the backdrop of these persistent failures that the enforcement mechanisms of the Constitution and legislation compelling performance and delivery is being usually invoked by the victims. The paper accentuates broad accountability enforcement culminating unto access and delivery.
Keywords: adequate housing, South Africa, government, human rights.
JEL Classification: K30, K33, K38
Page 399 - Lecturer Mihaela Emilia MARICA
Elements to Be Considered Prior to Summoning the Employee to a Disciplinary Investigation. Establishment of Disciplinary Misconduct Committed by the Employee and the Conditions for Disciplinary LiabilityAbstract:Given the mandatory nature of the preliminary disciplinary investigation procedure, this disciplinary process to which employees are submitted can be divided into three main phases, namely the phase prior to the employee's summoning, the moment of the employee's hearing and the phase following employee's investigation. Clarity on these stages and the proceedings corresponding to each of them, is essential for the validity of the disciplinary sanction. As the disciplinary process is complex both in terms of the current regulatory framework and judicial practice, the present article addresses some aspects of the preliminary disciplinary investigation procedure, with special focus on the problems identified in the phase prior to the employee's summoning to the disciplinary investigation. We will consider both descriptive technical elements and elements that generate significant divergences or controversy over practical matters. The comparative law elements presented will also highlight how other legal systems regulate issues relating to the procedure for imposing disciplinary sanctions. The legal regulations of Bulgaria, the United Kingdom, Cyprus, New Zealand are presented.
Keywords: disciplinary procedure, disciplinary sanctions, employee, work discipline.
JEL Classification: K31
Page 414 - Associate professor Camelia Daciana STOIAN; Lecturer Cristian MĂDUȚA
Interdisciplinary Collaborative Public Policies at Community Level in the Enforcement Process of Penalties and Non-custodial MeasuresAbstract:As the relationship with the persons under private law empowered to manage the execution of the range of non-custodial measures and punishments in this sphere is currently outlined at the legislative level, the nuances that limit access to the profession are identified. This aspect harms in practice both the person responsible for safety measurement and the judge who is delegated with the execution, the probation department and last but not least the professional mandated with the expertise regarding the state of health of the person in question. Since 2014, the Council of Europe's Report "A juvenile criminal justice adapted to children: from rhetoric to reality" has motivated the considerations regarding justice related to children, which mentions the need for minors in conflict with the law to have access above all to treatment and special staff. The proposed law restores the right to the vision required from the level of practitioners with reference to the recontouring of the provisions of article 20 of Law no. 253/2013 regarding the execution of punishments, educational measures and other non-custodial measures ordered by judicial bodies during the criminal process, in accordance with the goal of the regulation, namely to ensure the legal order by guaranteeing the balance that must exist between the protection of society and the reintegration in the community. At the same time, the terminations of the Ferenda law proposal will demonstrate the need for corroboration with normative acts that regulate the way of exercising the various liberal professions through units without legal personality necessary in terms of providing medical assistance at ambulatory level, both in the preventive and in the of recovery.
Keywords: practice, public service provider, public practice, administrative law.
JEL Classification: H83, K23
Page 420 - Lecturer Nqobizwe Mvelo NGEMA
Apostasy and Blasphemy in the Context of Somalia’s International Human Rights ObligationsAbstract:The legal framework of the Federal Republic of Somalia does not explicitly forbid apostasy but explicitly prohibits blasphemy against Islamic religion, object of worship and people venerated by Islam. If a person leaves Islam, he is ostracised by his kindred and the entire community. If he is a businessman, he would lose customers. If you are a jobseeker that is declared an apostate it becomes difficult to secure a job until you revert to Islam. The hatred against non-Muslims and non-believers is so deeply rooted in Somalia that many apostates has been persecuted in different ways. An apostate cannot inherit from a Muslim parent or ancestor and vice versa. The current application of blasphemy laws that exalt Islamic faith over other revealed religions is not in line with human rights obligations.
Keywords: apostasy, blasphemy laws of Somalia, human rights, obligations.
JEL Classification: K33, K38
Page 425 - PhD. student Adina GUȚIU
Challenges Brought by Climate Change in the Field of Administrative LawAbstract:The paper wishes to analyze the challenges that the interdisciplinary approach on climate change and ancillary obligations will bring in the field of administrative law, by analyzing EU legislation in this respect. Climate change has become a rising global concern, significantly affecting administrative policies, regulations, and administrative processes. Considering these challenges, administrative law legislation and jurisprudence have evolved and adapted to address the new requirements. At the regulatory level, the impact of climate change on issues such as urban planning, protection of natural resources, project permitting, and environmental governance is taken into account. The article paves the way for solutions and suggestions for improving the legal and administrative framework to meet the challenges raised and highlights the importance of legal and administrative collaboration in developing the most appropriate policies and regulations.
Keywords: administrative law, climate policy, environmental regulation, pollution control, environmental reporting, sustainability.
JEL Classification: K23, K32, Q56, Q58
Page 431 - Lecturer Aurel Octavian PASAT
European Court of Human Rights - Developer of Legal Doctrines. Theoretical BasesAbstract:The purpose of the paper is to analyze the contribution of the European Court of Human Rights to its transformation into a viable solution for the protection of human rights, fulfilling its role as "developer of legal doctrines regarding human rights", a role conferred by the object and purpose of the European Convention on Human Rights, for the maintenance and development of the democratic society model. Moreover, the evolution of the European Court of Human Rights in the last two decades has undoubtedly had a major effect in order to mediate the applicants to access justice, but also on the national courts that must correctly interpret the Convention, in the cases that are subject to judgment, on the basis of the principle of subsidiarity.
Keywords: European Court of Human Rights, fundamental freedoms, jurisprudence, the principle of subsidiarity, the domestic legal system.
JEL Classification: K33, K38
Page 439 - Researcher Mathibedi Frank KGAROSE; LLM. student Daphney Katlego MAKHUBELA; LLM. student Lebo Caroline SETAISE
Is Load Shedding Another Pandemic, Post COVID-19 at Institution of Higher Learning in South Africa?Abstract:In 1994, the African National Congress (ANC)-led government implemented a Reconstruction and Development Programme (RDP) program that entailed providing South Africans with stable and regular electricity supplies. Government through the state president declared COVID-19 a pandemic in 2019. Institutions of higher education resorted to introduce online teaching and learning as a method of ensuring that section 27(1) (a) (b) of the Constitution of the republic of South Africa was executed. Load shedding brought numerous challenges in the education settings in the institutions of higher learning. The crisis led to institutional economy and disrupted academic performance at institutions of higher learning. The purpose of this paper is to examine whether load shedding can be regarded as a pandemic post COVID-19. Access the impact of load shedding at institutions of higher learning. Therefore, this is a conceptual paper and it relied on existing data for analysis and interpretation. The paper recommends that institution of higher learning should invest in alternative sources of energy, and develop an effective communication strategy.
Keywords: institutions, learning, energy, load shedding, teaching.
JEL Classification: K32, K38
Page 447 - PhD. student Costin Răzvan CHIRIȚĂ
Civil Capacity of Legal Persons under Insolvency Proceedings with Regards to Property Transfer Deeds➤Abstract:The insolvency procedure is a special procedure, derogating from common law regarding the method by which commercial companies identify means of recovery of the activity in delicate moments of their existence. Under this aspect, we will analyze how the civil capacity is affected, the possibility of companies to conclude certain categories of property transfer deeds, both from the perspective of acquiring and from the perspective of alienating these rights. Our analysis will focus on answering to what extent the role of the receiver and the syndic judge represents a limitation of the civil capacity and especially if it can be discussed about a lack of it in the insolvency procedure. We will go through the legislation, jurisprudence, and doctrine at the national level, and where the answers will not be sufficient, we will tangentially analyze, through comparative law, the legislative solutions promoted at the level of European legislation and of other states that share a legal system like the national one.
Keywords: insolvency, legal entities, Law no. 85/2014, civil capacity, transfer of property.
JEL Classification:K15, K22
Page 457 - Lecturer Radu Ștefan PĂTRU
About the Competent Court in the Matter of a Litigation Regarding the Annulment of a Decision Whose Object Is the Release from a Public Management Position➤Abstract:The present study will analyze the aspects related to the competent court in the matter of the request for annulment of a decision ordering the release from a public management position, from the perspective of decision no. 5746/2022 of the High Court of Cassation and Justice. The supreme court in Romania established that in the mentioned situation the provisions of the Administrative Code prevail over the provisions of Law no. 554/2004 of the administrative litigation. This decision, which is based on a litigation registered before the Dolj Court, has a particularly important role in the matter of jurisdiction in a delicate issue of administrative law.
Keywords: administrative litigation, Administrative Code, public servant, High Court of Cassation and Justice.
JEL Classification:K23, K41
Page 465 - Lecturer Ovidiu-Horia MAICAN
Treaty of Lisbon – An European Constitution?➤Abstract:Europe has changed, the world has changed. The 21st century brings new challenges and new opportunities. The interaction of economies and peoples worldwide, whether by communication, trade, migration, shared security, concerns or cultural exchange, is in constant evolution. In such a globalised world, Europe needs to be competitive to secure economic growth and more and better jobs, in order to achieve an overall sustainable development. Climate change calls for a response that must be both global and local. Demographic change has shifted some of the old certainties about the patterns of how society works. New security threats call for new strategies and policies. In all these areas, Europe needs to be equipped for change.
Keywords: Constitution, European integration, federalism, future, Romania.
JEL Classification:K33
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