Perspectives of Law and Public Administration
Volume 13, Issue 2, June 2024
Table of Contents
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PhD. candidate Aida BEKTASHEVA
Abstract:The impact of foreign investment on the human rights generally has increased and interaction between them has shown to be complex in nowadays. Human rights considerations enter into the discourse of international investment law since increasing number of states are beginning to include references to human rights in their investment treaties and investor-state contracts, in particular for the new generation of investment treaties. Human rights related issues have played a vital role in various contexts of investment proceedings as w ell and whether an investment tribunal can apply to human rights law depends both on the relevant jurisdictional clause and the applicable law. To consider all this issue, the article takes a qualitative approach by examining secondary data, in particular, difference concepts, legal documents and applying case law as well. Moreover, in order to present existing window of opportunity for States, article outlined some findings and recommendations.
Keywords: applicable law, arbitration, investment law, investment treaties, human rights.
JEL Classification:K33, K38
DOI: 10.62768/PLPA/2024/13/2/01Reshaping International Investment Regime from Human Rights Perspective
Page 201 - PhD. student Ane Fany NOVITASARI; Lecturer Thohir LUTH; Lecturer DJUMIKASIH; Lecturer Nur CHANIFAH
A Comparative Analysis of the Interpretation of Maturity Under the Law of Marriage across ASEAN CountriesAbstract:Annually, child marriage endangers the lives and prospects of millions of youngsters. Despite regulations regulating the minimum age for marriage, this practice is prevalent and troublesome in several nations. Child marriage persists in several regions worldwide despite being disapproved upon in some civilizations. The present work aims to analyze the idea of maturity within the context of marital law. This study involves normative legal research utilizing philosophical, statutory, and conceptual approaches. The methods employed for analyzing legal materials are surveying, questioning, reading, reciting/recalling, and reviewing using logical reasoning. The investigation reveals that the idea of maturity in marriage legislation in countries including Indonesia, Malaysia, Brunei Darussalam, and Vietnam is mostly based on setting a minimum age for marriage, despite the fact that age may not accurately reflect a person’s maturity level.
Keywords: adulthood, marriage, law, ASEAN.
JEL Classification: K15, K36
DOI: 10.62768/PLPA/2024/13/2/02
Page 210 - Professor Florentina Camelia STOICA; Lecturer Cristina COJOCARU
Harmonization of Procedures in Romania with the Regulations of the EU Member States on the Limited Liability CompanyAbstract:The latest legislative amendments to Companies Law no. 31/1990 are expected to be well received by the business community, being described by the legislator, among others, as a relaxation of the conditions for registration and operation of the Limited Liability Company. Thus, significant changes concern the elimination of the minimum value of the share capital for this type of company, as well as the emphasis of the new provisions on the will of the shareholders regarding the transfer of shares, by removing the term of opposability to transfer provided in favour of third parties. Without claiming a thorough analysis of the matter, the article aims to highlight the most important aspects of these legislative changes.
Keywords: limited liability company, Romanian Companies Law no. 31/1990, share capital, transfer of shares.
JEL Classification: K22, K33
DOI: 10.62768/PLPA/2024/13/2/03
Page 218 - Associate professor Flavia Lucia GHENCEA
Advantages and Constraints from the Perspective of Adopting the AI Act for the Public Administration in RomaniaAbstract:The AI Act is a proposal with an exclusively innovative character in the legislative field, being the first law developed by a major regulatory body in the field of artificial intelligence (AI). The law operationalizes AI applications in three risk categories. First, it considers applications and systems that create an unacceptable risk. Second, high-risk applications are subject to specific legal requirements. Lastly, applications not explicitly banned or listed as high-risk are largely left unregulated. If the path of this act was, without a doubt, a particularly difficult one, the practical application will certainly raise several practical problems, depending on the states that will implement it. We propose, in this work, an analysis of the European normative act, from the perspective, on the one hand of the intentions pursued by the European legislator and, on the other hand, of how Romania will implement the AI legislation. We refer to possible situations in which the Romanian public administration will find itself through the prism of the advantages it can obtain, on the one hand, but also, on the other by the prism of the constraints imposed by the regulations in force. We conclude with some proposals to the legislator in the perspective of obtaining concrete advantages following the implementation of this act.
Keywords: AI Act, digital Europe, public administration, digitalization.
JEL Classification: H83, K24, K33
DOI: 10.62768/PLPA/2024/13/2/04
Page 224 - Lecturer Bledar ABDURRAHMANI
Enforcing EU Legislation on Tourism in Albania: Challenges of Tourist Protection on the Travel Package ContractsAbstract:The study provides the challenges enforcing EU legislation on tourism in Albania, focusing on tourist protection in the travel package contract. The primary objective is to evaluate the role of the European Union in improving the legislation in the tourism sector in member states or aspiring ones, and the legal instruments used to govern tourism in the EU and Albania. The main aim is to highlight the alignment of domestic tourism legislation with community law and assess whether it has improved the standards for tourist services. This paper supports the hypothesis that the slow implementation of legal reforms in tourism enterprises is not contributing to the expected success of this sector. To prove this hypothesis this study relies on the analytic research method, theoretical consultation with important legal documents in tourism, and the historical interpretation of the legal reforms carried out during this period. The study also uses the comparative method to examine the impact of the criteria set out in European Union legislation in tourism and their transposition into domestic law in the context of Albania’s EU integration. Strengthening consumer rights is a challenge for countries in a perpetual transition like Albania. Undoubtedly, the protection of the tourist consumer, even though at first sight it represents protection ‘for luxury services’, is one of these objectives of general consumer protection. Therefore, it is necessary, not only that the Albanian legal framework regarding travel package contracts complies with Community law, but also that the tourist consumers be sensitized about their rights, as well as that the enforcement of the law by the responsible institutions should be strengthened. The main findings are that even though there is a legal basis aligned with community law that regulates and protects the interests of the tourist consumers in the travel package contract, it has not provided the appropriate effects due to the lack of tourist entrepreneurs’ willingness in the field of tourist travel to enforce legal requirements, negligence of the customers to protect their rights and mainly of the state authorities in enforcing the law.
Keywords: European Treaty, EU Directive, EU regulation, tourism law, travel package.
JEL Classification: K33, K38
DOI: 10.62768/PLPA/2024/13/2/05
Page 238 - Lecturer Geronimo Răducu BRĂNESCU
The Role of Digital Technology in Improving Food Security: Challenges and OpportunitiesAbstract:In today’s world, where artificial intelligence and digital technologies are widely used, this study seeks to investigate their impact on food security activities. The key role of digital technology in this area is highlighted, in particular in addressing challenges and providing opportunities for safe and affordable food for the whole population. The article discusses how supply chain monitoring and tracking, smart agriculture implementation, and the use of data analytics and artificial intelligence can all help to ensure the food system’s sustainability and efficiency. These can be supplemented successfully with communication and awareness via mobile applications and online platforms that increase consumer engagement and responsibility. On the other hand, the article also highlights the challenges associated with the intensive use of artificial intelligence and digital technologies in terms of accessibility and data security. To summarize, rational use of digital technologies and artificial intelligence is critical for developing a sustainable, safe, and crisis-resilient food system.
Keywords: food security, digital technology, artificial intelligence.
JEL Classification: K24, Q18
DOI: 10.62768/PLPA/2024/13/2/06
Page 247 - PhD. student Andrei IACUBA; PhD. student Georgian Ionuț STAN
Constitution Supremacy and the Reasonable Limits of Case Law Reversal within the Framework of Constitutionality ControlAbstract:Undoubtedly, constitutional supremacy can lead to spacious social peace in a constitutional democracy. The fact that the other laws in the normative hierarchy are valid and conform to the fundamental act leads to juridical security for the subjects of law. Sometimes, to guarantee the supremacy of the constitution, a constitutionality review is established through a constitutional litigation court, at other times, this review is left to ordinary courts, thus guaranteeing constitutional supremacy in both ways. Contrary to the purpose of guaranteeing constitutional supremacy, constitutional courts can disconnect themselves from what they protect – the constitution, and through undesirable case law reversals, the content of constitutional norms can be disregarded. In this context, it is necessary that some reasonable limits be brought into discussion.
Keywords: constitution, supremacy, limits, case law reversal.
JEL Classification: K10, K19
DOI: 10.62768/PLPA/2024/13/2/07
Page 255 - Associate professor Kristinka JANCE; Lecturer Mirjam RECI
The Approximation of the Albanian Procurement Legislation with the EU LegislationAbstract:Public procurement is a process performed by the Contracting Authorities which select the Economic Operators through a public competition, to enter into public contracts for the provision of goods, services, or works, against payment from public funds. The area of public procurement is very important in the management and spending of public money because public procurement is the environment where public money is filtered to have the least possible misuse, and financial stability of state institutions so that they are more consistent in the functioning and development of professional activities. Therefore, in this context, the present paper will analyze the Albanian perspective on public procurement to comprehend its alignment with EU legislation. This paper is coherent with the integration process requirements imposed on Albania and will demonstrate the positive achievements reached and the long path ahead to become a member of the European Union family.
Keywords: public procurement, legislation, Albania, EU procurement legislation.
JEL Classification: K23, K33
DOI: 10.62768/PLPA/2024/13/2/08
Pages 265 - PhD. student Vlad-Ionuț MUSCA
Democratizing the Access of Romanian Investors to Trading Financial Instruments through Specialized PlatformsAbstract:By writing this paper, we aim to follow the evolution of Romanian retail investors’ access to trading financial instruments and cryptocurrencies through online platforms or specialized applications. We will follow the historical evolution of the participation of Romanian retail investors in trading on the capital market, the way in which access to trading is achieved, focusing in particular on the impact brought by the emergence of online platforms and mobile applications on the field. We will analyze the increase in the number of individuals using these specialized trading platforms, the cost of trading, but also the impact that this wave of new investors has generated on the prices of financial instruments and cryptocurrencies traded. We will also follow the reaction of the financial supervisory authorities in relation to the phenomenon, on a wider European and American level. Last but not least, we will also analyze the recent reaction of the Romanian legislator to this new reality as well as the simplification attempts from the point of view of the declaration of taxable income resulting from the trading of financial instruments, indicating the financial advantages and disadvantages generated by the current legislation for the Romanian investor, natural person.
Keywords: trading platforms, retail investors, financial instruments, cryptocurrencies.
JEL Classification: K22
DOI: 10.62768/PLPA/2024/13/2/09
Page 272 - LLM. M. Econ. Michał NAJMAN
Legal Protection of the Whistleblower. The Possible Consequences of Shifting Public Administrative Duties to the IndividualsAbstract:The European Parliament and the Council (EU) on October 23, 2019 adopted Directive 2019/1937 on the protection of persons reporting violations of EU law. It aims to improve the enforcement of EU laws and policies by increasing the ability to effectively detect violations of the regulations. The means to achieve this goal is to guarantee the protection of individuals who, because of their work (sensu largo), have information that proves a violation of EU law and is thus harmful to the public interest, and report these violations or disclose them to the public (whistleblowers). What is more, the Directive shifts public administration duties to the individuals. The article is an attempt to answer the question of whether the regulation of the protection of whistleblowers finds legal and social justification as well as to indicate the benefits and risks of granting whistleblowers special legal protection. The article ends with an assessment of the importance and implementability of the discussed regulation at both the social and economic levels.
Keywords: whistleblower, misstatements, financial markets.
JEL Classification: H83, K22, K23
DOI: 10.62768/PLPA/2024/13/2/10
Page 280 - Lecturer Mihaela MARICA
The Decision to Discipline the Employee with Some References to Its Communication through Online Means of Communication. Elements of Comparative LawAbstract:Domestically, the field of labour discipline is a complex one, both in terms of legislation and case law. In order to provide a better understanding of how these regulations are implemented in practice, this article reviews some theoretical and practical issues concerning the validity of the decision to discipline an employee, with a focus on the doctrinal and jurisprudential problems identified with regard to the time limit within which the employer may issue the disciplinary decision, the content of the disciplinary decision, the individualisation of the disciplinary sanction in relation to the conclusions of the Disciplinary Committee, and the communication of disciplinary decisions by online means. In addition, in order to provide a clearer technical and legislative overview of the regulations on the issuing of a sanctioning decision, the regulations of other countries are also relevant to this objective, and comparative law elements will be closely examined. Thus, the legal systems of France, Cyprus, the United Kingdom and Georgia are considered.
Keywords: disciplinary decision, disciplinary misconduct, disciplinary liability, work discipline.
JEL Classification: K31
DOI: 10.62768/PLPA/2024/13/2/11
Page 288 - Assistant professor Dimitrios DEVETZIS; PhD. candidate Simos SAMARAS
Consumer Protection Safeguards after the AI ActAbstract:The long-awaited introduction of the AI Act, notwithstanding its originality, does not introduce any regulation outside the existing framework. It supplements the safeguards provided in numerous sectors of the EU legislation, inter alia, consumer protection. An examination of the basic EU law along with national legislation of the most influential legal orders, i.e. the French and German one, and model rules of the Draft Common Frame of Reference (DCFR) confirms that the new AI Act sheds light on pre-existing vague legal concepts. In this respect, this novel piece of legislation promotes a better understanding of traditional notions of law applicable to the modern digital reality without introducing totally new rules. Accordingly, certainty of law is reinforced where consumer protection had languished, not because of legislative shortage, but for facts and situations described as necessary conditions of certain rights were contested on the basis of contrary possible interpretations of decisive terms. Ultimately, the very importance of the AI act regarding consumer protection lies not in the introduction of new rights and obligations, but in a multiple practical assistance to the implementation of existing rules adjusting thus the traditional legal concepts with technological development beyond their original scope.
Keywords: AI Act, AI Convention, consumer protection, comparative law, contractual fairness, data protection, Draft Common Frame of Reference, EU law, good faith, information accuracy, product safety.
JEL Classification: K11, K15, K24
DOI: 10.62768/PLPA/2024/13/2/12
Page 298 - Associate professor Rodica Diana APAN
Debt Counseling from the Directive No. 2023/2225 on Credit Agreements for Consumers and Perspectives for TranspositionAbstract:The present research aims at analysing the regulation of debt advice at European level contained in Directive 2023/2225. The research reveals, at this date, at the national level, the lack of express regulation for the conduct of independent, impartial counselling of people in debt or about to become in debt. The research also identifies that the only category of counselling known and regulated at the national level, where credit is the main source of indebtedness, is consumer counselling by creditors and credit intermediaries. The regulation of independent debt advice under Directive 2023/2225 has yet to be transposed at the national level. The challenge of identifying the entity/entities that will provide independent debt advice is the one to which this study responds, and has profound social-economic implications, as this category of advice is a solution to prevent over-indebtedness.
Keywords: (over) indebtedness, debt counselling, financial services, financial education, consumer associations, consumer information and advice centres, prevention of financial exclusion, vulnerable consumers.
JEL Classification: K22, K33
DOI: 10.62768/PLPA/2024/13/2/13
Page 310 - Lecturer Pumza NOMNGANGA; Lecturer Paul S. MASUMBE
Prevalence of Undue Delays in Criminal Proceedings: Realising the Right to a Speedy Trial for Crime Victims in South Africa?Abstract:Prevalence of undue delays in criminal proceedings in South Africa poses serious implications not only for the accused person’s right to a fair trial but also for the rights and interests of crime victims. The South African criminal justice system is overburdened. This is because crime in South Africa is currently at an all-time high, resulting in a clogged court system. Due to this overburdened system, the entire criminal justice system is hampered, and cases take longer to resolve. The impact of these undue delays on crime victims, firstly is that justice delayed is justice denied and society resorts to commit vigilantism as they have lost faith in the criminal justice system. Secondly, there has been a perception from the society that the criminal justice system is biased and favors the rights of offenders or accused persons. In Rodrigues v National Director of Public Prosecutions and Other 2019 (2) SACR 251 (GJ), the court when dealing with undue delays for the first time, rights and interests of crime victims were considered even though the matter took more than 40 years. This judgment revealed the importance of the realisation of speedy trial rights for crime victims. Using the qualitative research method, the literature in this article indicates that the enactment of the right to a speedy trial for crime victims can be beneficial to all parties involved in criminal proceedings to curb undue delays in criminal proceedings. This article outlines the causes of undue delays in criminal proceedings, the impact that these delays have on specific crime victims and argues for the implementation and enforcement of the right to a speedy trial for crime victims in South Africa.
Keywords: crime victims, criminal justice, speedy trial, undue delays, victimisation.
JEL Classification: K14, K38
DOI: 10.62768/PLPA/2024/13/2/14
Page 319 - Associate professor Carmen Adriana DOMOCOS
From the Informatic Crime to the Informatic CriminalityAbstract:Although the digital world brings enormous benefits, it is also vulnerable. Cyber space incidents, either intentional or accidental, are rising to an alarming level and could disrupt the provision of essential services. State economies are already affected, to a great extent, by cybercrime activities against individuals, public and private sectors. Virtual criminals use more and more complex methods for penetrating into computer systems, such as critical data theft or repositories. Cyber security has become a component of the security of all states, which, according to international conventions and treaties, can be achieved through the knowledge, prevention and counteraction of attacks and threats, as well as by diminishing the vulnerabilities of cyber infrastructure for the effective management of all security risks prevention, and fight against cybercrime and, last but not least, cyber defense. The provision in the new Criminal Code of possible or facilitated offenses by new information and communication technologies, in particular crimes against the security and integrity of systems and computer data, is a necessary action to synchronize our criminal law at the highest level with European law and as well as the necessary response to the exponential growth of this type of crime.
Keywords: informatics crime, informatics criminality, informatics data and systems, cybercrime.
JEL Classification: K14, K24
DOI: 10.62768/PLPA/2024/13/2/15
Page 331 - PhD. candidate Fat MUSTAFI; Professor Ismail ZEJNELI
The Relationship between the Victim and the Perpetrator in the Mediation ProcedureAbstract:The victim and the victimizer or the criminal are often found in interactions and various interactive relationships The victim and the victimizer in some cases of victimization are always in some relationships and relationships from before, these relationships and relationships can be of various natures, in most cases they are parental relationships, marital relationships, cohabitation or engagement relationships, family or even neighborly love ties.Restorative justice is an approach to justice oriented towards the possible repair of damage caused by a crime or conflict. An essential element of restorative justice is the active involvement of parties, victims, perpetrators, and when appropriate, community members, who voluntarily come together with the help of a mediator to talk about the harm and its consequences, as well as to identify ways to repair them. Restorative justice aims to bring justice to people and considers participation as an important human value that connects people. The focus of restorative justice is on what people perceive as a fair and safe experience in the phase after a crime or conflict has occurred. The purpose of restorative justice is to create a safe environment for sharing feelings (such as fear, anger, sadness) that have arisen as a result of conflict or crime and to talk about possible solutions for repairing the damage.
Keywords: restorative justice, mediation, victim, perpetrator.
JEL Classification: K14, K42
DOI: 10.62768/PLPA/2024/13/2/16
Page 339 - Erratum
