Perspectives of Law and Public Administration
Volume 13, Issue 3, October 2024
Table of Contents
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Abstract:Cohabitation, being a social phenomenon, is evolving significantly in recent years, where in social aspects it is claimed that nothing can prevent a man and a woman, beyond marriage, to give life to a stable relationship, thus realising a cohabitation that is known differently as more uxorious. The existential choice to give life to cohabitation and to the basic human rights is characterised by the seriousness of goals and sustainability. Social factors point out that there are many reasons that lead to cohabitation, among which can be mentioned the avoidance of legal restrictions arising from marriage, the will to benefit from material goods or the avoidance of necessary requirements as happens in the crowning of marriage. However, even though it has evolved as a case, cohabitation still faces prejudices, especially in the religious aspect. In essence, menage de fait is an expression of the individual’s freedom to choose, and this is the reason why some foreign experiences tend towards the complete legal integration of de facto cohabitation with that of marriage, especially in terms of property and inheritance, excluding adoption or fertilisation artificial. Based on the historical and comparative analysis between the current legal framework in relation to that of other countries, this study focuses more on the interpretation of the legal vacuum of cohabitation, including the right of inheritance, the division of property and other consequences in case division.
Keywords: legal responsibility of cohabitants, cohabitation contract, parental responsibility, property division, judicial procedures.
JEL Classification:K15, K36
DOI: 10.62768/PLPA/2024/13/3/01The Legal Regime of Cohabiting in Inheritance Law in the Republic of Albania
Page 352 - PhD. student Denise Cătălina MARTALOG
Some Considerations Concerning the Imputation of Liberalities Made to a Non-reserving HeirAbstract:Legal inheritance presupposes the existence of some categories of heirs expressly regulated by law, who reap from the deceased’s estate in the quotas and order established by law. There is a category of legal heirs called reserved heirs, protected by imperative rules against the will of the deceased, when they try to disinherit them directly or indirectly. The will of the deceased manifested through liberalities is the essence of testamentary inheritance. Testamentary freedom represents the rule of inheritance law, the bequeathed having the opportunity to dispose of his wealth as he wishes. When the two types of inheritance coexist, and the deceased disposes by liberality in the presence of reserved heirs, in order to comply with the rules of legal inheritance and to divide the deceased’s wealth efficiently and correctly, it is necessary to determine precisely the part of the inheritance on which the liberality ordered by to de cujus. The study aims to analyse the situations that may arise when the deceased, in the presence of the reservators, disposes liberally in favour of a nonreservator heir and to identify balanced solutions that do not contravene the rules of legal inheritance and satisfy the principle of testamentary freedom.
Keywords: legal inheritance, reserved heir, liberalities, imputation, reduction of excessive liberalities.
JEL Classification: K15, K36
DOI: 10.62768/PLPA/2024/13/3/02
Page 359 - PhD. candidate Ermonda ZOGIANI
The Role of Trademarks in Kosovo: Steps Towards Harmonisation with the EU Normative FrameworkAbstract:The main aim of this paper is to analyse the treatment and importance of trademarks in Kosovo and the need to harmonise the legal framework of the Republic of Kosovo with that of the European Union. The inadequate legal framework, which led to inconsistencies between local and European legislation, caused numerous problems in practice, regarding the ineffective implementation and insufficient protection of these rights. To avoid these legal gaps and find adequate solutions to the identified problems, a new legal infrastructure was created with the entry into force of Law No. 08/L-075 on Trademarks in Kosovo, with the aim of promoting the economic development of the country by encouraging businesses, increasing investment, ensuring fair competition and protecting consumers. The amendment of this law comes as a necessity for its compliance with EU Directive 2015/2436 and Directive 2004/48/EC of the European Parliament and of the Council. Trademarks are of great importance, especially in the business sector, because further development of this legislation will create a safe environment for businesses, which will have an impact on the economic development of the country. In this paper, we have used comparative historical and case study methods. The result of this paper will contribute to further improvements of our trademark legislation, as well as to the legal doctrine in Kosovo that lacks such.
Keywords: trademarks, industrial property, harmonisation, judicial protection.
JEL Classification: K22, K33
DOI: 10.62768/PLPA/2024/13/3/03
Page 364 - Professor John C. MUBANGIZI
Artificial Intelligence, Human Rights and Sustainable Development: An African PerspectiveAbstract:This article explores the opportunities and challenges posed by AI technologies in Africa. It examines the potential risks of AI exacerbating existing inequalities, infringing on privacy rights, and perpetuating digital colonialism. The article investigates the unique challenges that Africa faces in harnessing AI for human rights and sustainable development by examining the intersection of AI, human rights, and sustainable development from an African perspective. It highlights the importance of context-specific approaches that take Africa’s cultural and ethical considerations into account. Through case studies of a few African countries, this article provides insights into the existing policy and regulatory landscape. It emphasises the need for inclusive policymaking processes that involve diverse stakeholders, including civil society organisations, marginalised communities, and indigenous groups. The article concludes with recommendations on how AI can be ethically deployed to advance human rights and sustainable development goals on the African continent. A case is also made for a human rights-based approach to artificial intelligence and sustainable development.
Keywords: artificial intelligence, human rights, sustainable development, technology, Africa.
JEL Classification: K24, K38, K39
DOI: 10.62768/PLPA/2024/13/3/04
Page 374 - PhD. student Liviu Alexandru NARLĂ
Reflections on the Timely Application of the Civil Law in the Heritage MatterAbstract:After 1989, in the context of Romania’s return to representative democracy, the transition to the market economy, the start of the Euro-Atlantic integration process and Romania’s accession to the European Union, an extensive resistematization of the legislative corpus was imposed, with the Civil Code finally being adopted, which under art. 220 para. (1) from Law no. 71/2011 for the implementation of Law no. 287/2009 regarding the Civil Code, published in the Official Monitor of Romania, Part I, no. 409 of June 10, 2011, entered into force on October 1, 2011. In essence, the Civil Code from 2009 ensures the inheritance in general and the unworthiness of the successor in particular, a modern, flexible and coherent regulation, at the same time capitalising on the solutions proposed in the civil codification projects from 1940 and 1971, as well as those from foreign codifications, with mainly from France, Italy and Québec. The entry into force of the Civil Code from 2009, however, has generated a difficult challenge for practitioners of the law regarding the method of time applications of the civil law on inheritance, with especially in terms of the opening of the inheritance, its transmission and devolution, the report successions can stretch even over decades. In this context, the present approach aims to provide a coherent interpretation regarding the civil law applicable to the legal acts or facts found in closely related to the relationship of succession law.
Keywords: retroactivity; ultraactivity; legacies; indignity.
JEL Classification: K15, K36, K39
DOI: 10.62768/PLPA/2024/13/3/05
Page 390 - Lecturer Sandisiwe MNTWELIZWE; Lecturer Paul S. MASUMBE
The Response of Labour Law to COVID-19 Related Dismissal in South AfricaAbstract:The outbreak of the COVID-19 pandemic in 2020 imposed sudden and severe hardship on several businesses. It not only resulted in fatalities, but it also caused significant numbers of job losses. As a result of the COVID-19 outbreak employees in the workplace had to adapt to the new normal and certain constitutional rights were limited. Many employees were retrenched, and as a result, these COVID-19 retrenchments were not procedurally or substantively fair. The post COVID-19 period has highlighted that much work needs to be done to reform our existing labour laws. During pandemics, current labour regulations do not help. As a result, the question arises as to how far the Labour Relations Act 66 of 1995 protects employees in the workplace in times of public health emergencies. This article will look at how labour laws responded to COVID-19 retrenchments. It will also go over the forms of dismissal and important judicial decisions handed down during the COVID-19 period that support the idea that retrenchments made during the COVID- 19 period were unfair. Thus, the authors will examine how to maintain the promotion of justice in the workplace and provide a discussion of law reform ideas that can be used to address the employment law-related flaws of the COVID-19 period will be presented in order to avoid the same challenges during pandemic periods that the country may face in future.
Keywords: COVID-19 retrenchments, labour laws, development of new labour laws, Labour Relations Act 66 of 1995.
JEL Classification: K31, K32
DOI: 10.62768/PLPA/2024/13/3/06
Page 402 - PhD. student Samuel MIREUȚĂ
Good Administration in the View of the Institutions of the European Union. Theoretical and Practical AspectsAbstract:The right to good administration is provided by the Charter of Fundamental Rights of the European Union. This right presupposes that any person is recognised as having the right to benefit, as regards his problems, from impartial, fair treatment and within a reasonable time from the institutions, bodies, offices and agencies of the Union. The guardian of this right is the European Ombudsman. This concept of good administration is associated with the rule of law, legality, transparency, efficiency, effectiveness, democracy and implies that the institutions of the European Union must comply with certain standards. The author proposes as objectives: (i) Analysis of the right to good administration in the existing documents at the level of the European Union: the Charter of Fundamental Rights, the Maastricht Treaty on the European Union, the Lisbon Treaty on the functioning of the European Union, the European Code of Good Administrative Behaviour; (ii) refer to the specialised literature in the analysis carried out; (iii) to refer to case law. The author uses content analysis as a qualitative research method. The study shows different paradigms regarding the concept of good administration.
Keywords: good administration, EU institutions; maladministration, legality, rule of law.
JEL Classification: K23, K33
DOI: 10.62768/PLPA/2024/13/3/07
Page 417 - Professor Carlos RODRIGUES; Professor Ana CAMPINA
The Economic Importance of Franchising in Portugal – (Re)Analysis of the Franchising ContractAbstract:If we analyse the ‘2018/2019 Franchising Census’ carried out by the APF – Portuguese Franchising Association, we see that in Portugal, and for the year 2018, Franchising generated a turnover of more than 8 billion euros, which corresponded to 3.96% of the national GDP. This turnover is the result of the ‘Franchising Contracts’ signed by the 528 active brands, distributed among Services, with 57.7% of the preference, followed by Commerce, with 29% and Restaurants, with 13.3%. When we look at the levels of initial investment by Franchisees, we see that this initial investment was up to €25,000.00 for 43.6% of Franchisees, €25,000.00 to €50,000.00 for 26.5%, €50,000.00 to €100,000.00 for 17.7%, €100,000.00 to €250,000.00 for 9.9% and, finally, with an investment of more than €250,000.00 for the remaining 2.2%. In other words, more than 70% of the initial investment by franchisees did not exceed €50,000.00. The relevance of these figures for the Portuguese economy is the basis for presenting a legal (re)analysis of the ‘Franchising Contract’ in the Portuguese legal system, using a logical-deductive methodology of the legal regime of this type of contract.
Keywords: franchising, franchising contract, franchisor, franchisee.
JEL Classification: K12, K22
DOI: 10.62768/PLPA/2024/13/3/08
Pages 426 - PhD. Liviu-Alexandru VIOREL
The Right of Litigant Parties to Information Regarding Reasons, Defences and Claims in the Exercise of the Principle of Adversariality in the Civil Process. The Perspective of French LawAbstract:This article aims to identify the concrete content of three rights deriving from the principle of adversariality in the civil litigation, i.e. the right to know, the right to information and the right to understand and, consequently, to establish a logical correlation between them. Next, the article aims to establish the concrete content of the right to know together with the requirements that the right to information must meet, with the analysis of the temporality of this right. We used as methodological pillars the bibliographic research, the comparative method using French doctrine and regulation, the inductive method to highlight the existence of the triplet right to know – right to information – right to understanding within the construction of the principle of adversariality and to extract the conditions associated with the right to information. The article tends to highlight the need to be aware of the importance of the right to information regarding reasons, defences and claims in the civil process, often disregarded in practice. It warns the participants in the civil process, be they parties or the Court, that the basis of the right to an effective adversarial litigation is necessarily the right to information and that its requirements must be met.
Keywords: the principle of adversariality, the right to know, the right to information, the right to understand, temporality.
JEL Classification: K15, K41
DOI: 10.62768/PLPA/2024/13/3/09
Page 432 - LLD. Candidate C. B. D. SELANE; Professor Kola O. ODEKU
Critical Analysis of Post-1994 Progressive and Transformative Legislative Instruments Introduced to Build Skills and Capacities in South AfricaAbstract:The South African government seeks to tackle poverty, unemployment and inequality via the deployment and use of quality education at the tertiary level. To accomplish this, Technical Vocational Education and Training Colleges (TVET Colleges) have been strategically introduced and established as intervention tools to ensure that skills and capacities are required to address socio-economic challenges facing the country. To this end, students would be trained to receive the requisite skills to make them competent in their chosen vocation where they would utilise the skill and competency to stand on their own after graduating by establishing a vocation, enterprises, ventures where they are selfemployed and even employ others, or have the skills that are deployable in the workplace with minimal supervision to discharge the job requirements. The most potent tool that underpins the realisation of this is through the introduction of post-1994 progressive and transformative instruments that speak to the effective implementation of skills, capacity and capability to fill skill gaps and shortages to deliver and fulfil the development agenda of South Africa.
Keywords: training, competency, skill shortages, capacity building, employability, development and growth.
JEL Classification: K30, K33, K38
DOI: 10.62768/PLPA/2024/13/3/10
Page 439 - Assistant professor Przemysław ZDYB
Parties to Proceedings in Cases of Issuing Decisions on Environmental DeterminantsAbstract:The aim of this study is to present rules on establishing the catalogue of parties to proceedings in cases for issuing decisions on environmental determinants. The analysis, based on investigation of the law in force and examination of the law in the historical angle, shows that entities that to whom an authority refuses to grant the status of a party in proceedings for issuing an environmental decision find it difficult to evidence their legal interest in these proceedings due to no access to relevant documents and case files.
Keywords: decision on environmental determinants, party to administrative proceedings, administrative proceedings, environmental law.
JEL Classification: K23, K32
DOI: 10.62768/PLPA/2024/13/3/11
Page 450 - PhD., lawyer Petre Andrei ȚÂRU
Aspects of Comparative Law with Regard to the Business Decision Rule. Particularities of the Liability of the Administrator of the Company Relating to the Liability for the Insolvency of the CompanyAbstract:This study analyses the rule of business decision in the laws of several states and focuses on similarities, but also differences between regulations. At the same time, it is a rich source of analysis on the way in which insolvency germs and regulations on the liability of company managers are reflected in the legislation of several states. The elements presented broadly argue essential aspects of the national legislation, but also the legislative regulations of other states, but the peculiarities and similarities mentioned focus on the specificity of our legislation. The terms of comparison reveal important and clear aspects regarding the liability of the natural person with management/management position in a company making an incursion into the Anglo-Saxon legislation and practice of origin, but also in laws and jurisdictions.
Keywords: business decision rule, comparative law, liability of company administrators/directors, insolvency.
JEL Classification: K22
DOI: 10.62768/PLPA/2024/13/3/12
Page 460 - PhD. student Ariadna GRIGORE
Simulation: An Institution with a Past and a FutureAbstract:Simulation was and still is a way to hide the real will of the parties. This mechanism can, in most cases, have an illicit purpose consisting of defrauding creditors or heirs or even tax evasion, but it can also have a noble purpose. This institution has been known since antiquity, embodying the Roman legal genius. Romanian private law evolved as the needs of society imposed changes, the Romanians being a very, thorough people in terms of analyzing the aspects brought up in practice, an analysis that led to the perfection of the legal system. In ancient Roman law, numerous cases of simulating a reality were distinguished, among which the claim action granted to peregrines, adoption, in iure cesio and fictitious actions will be mentioned. In the Roman province Dacia, there was also the fiction of ius italicum, and in the Romanian Countries the institution of simulation appears in the "Legal Manual" of Andronache Donici, a concept taken over and supplemented by the Callimachus Code. The present study includes two parts, the first in which simulation applications and the evolution of this institution over time are presented, and the second part in which simulation is analyzed from the point of view of contemporary legislation and the implications arising from the simulation of certain acts. Emphasis is also placed on doctrinal solutions, following the case study on the current situation and resulting conclusions. Among the qualitative legal scientific research methods used in this study are the logical method, the comparative method and the historical method.
Keywords: simulation, antiquity, public deed, secret deed (countersigned).
JEL Classification: K15
DOI: 10.62768/PLPA/2024/13/3/13
Page 471 - Associate professor Martinus M. SELEPE
The Mechanisms That Will Ensure Efficient Supply Chain Management Processes of the South African State-Owned EnterprisesAbstract:This study explores the various mechanisms that will ensure efficient supply chain management processes in South African State-Owned Enterprises (SOEs). The main objectives of the study are to identify the best strategies that will enhance efficiency within the State-owned entities and to examine the current situation of SOEs procurement and Supply Chain Management processes in South Africa. The study will also examine the challenges of supply chain management within the SOEs. The South African Government does not have adequate expertise to implement public procurement policy framework, supply chain management enablers, strategies, policy, and enforcement of government procurement rules and regulations. This leads to management failure, compliance shortcomings, waste, and fraudulent activities. The study adopted the conceptual approach relying heavily on secondary data to demonstrate the role of the mechanisms that will enhance efficiency in the SOEs. The study concludes by giving an exposition of the South African Legislative Framework governing supply chain management practices.
Keywords: supply chain management, government, state-owned entities, legislation and mechanisms and public sector.
JEL Classification: K22, K23
DOI: 10.62768/PLPA/2024/13/3/14
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