Review of Law and Social Studies
Volume 1, Issue 2, December 2024
Table of Contents
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- Associate professor Liliana TYMCHENKO
Legal Heritage as a Basis for the Protection of Freedom and Equality. Example of the KaraitesAbstract:The article offers a vision of the problem of protection of freedom and equality through the study of the legal heritage of the Karaite people. The totality of legal traditions, the orientation of the life of Karaites to the strengthening of historical and legal values are studied. The starting point of the discussion is three approaches to the question of the origin of the Karaite people. Particular attention is paid to the totality of values reflected in the religious and political culture of Karaites. The author used the literary heritage of the Karaite people, referring to the lines of the poetic work of Simonas Firkovicius, journalistic generalizations of the Karaite magazines "Karaite Word" (“Karaimskoye Slovo”) and "Karaite Thought" (“Mýsl Karaimska”), as well as scientific works of modern scholars. It is shown how the concepts of "freedom" and "equality" were enshrined in the legal heritage of Karaites, the formation of which took place under the influence of Jewish and Muslim philosophers. Legends about Anan Ben David and Abu Hanifa are given. Based on the materials of the study, it becomes obvious that the Grand Duchy of Lithuania, Rus and Semigotia tolerated different religions and cultures. This tradition is closely integrated into the modern Lithuanian legal culture. However, there are still numerous questions about the boundaries and subjects of such a tolerant attitude. This is due to the fact that there are contradictions in approaches to the study, restoration and interpretation of historical events and facts. As a result, they complicate the reconstruction of legal history. The sources of the legal history of Karaites are extremely limited and require further research and interpretation. The author of the article substantiates the hypothesis that one of the best approaches to promoting democracy in the state is to protect the most vulnerable categories of the population. It is then that cultures mutually enrich each other and contribute not only to cultural but also to economic development. The historical example of the relationship between Karaites and the Lithuanian-Ruthenian-Semigothic society is a clear example of how a minority, without assimilation, becomes an active part of the state.
Keywords:equality, freedom, human rights protection, Karaites, legal heritage.
JEL Classification:K33
Page 129 - PhD. student Ruxandra Andreea LĂPĂDAT
The Metamorphosis of the Free Access to Justice: Balancing Efficiency and Equity in Online Dispute ResolutionAbstract:Balancing between becoming an essential expression of free access to justice and an effective supplement in the sphere of the right to a fair trial, alternative dispute resolution (ODR) has become an increasingly commonplace in the digital era. However, this evolution encounters a paradox: on one hand, it bolsters faster access to justice, supporting the celerity component in the conflict solving, on the other, it complicates the access for vulnerable groups who do not use technology and cannot skillfully command its variances within the context of ADR. The paper calls for maintaining a balanced ecosystem in the virtual use of ADR, where efficiency does not erode the essence of equity. Furthermore, it aims to achieve the future goal of keeping technology as a mere means to achieve justice in any form, traditional or alternative, without digital justice branching off as a distinct entity. The article's conclusions seek to outline an answer to whether the technological use of ADR remains a facilitator of access to justice. Does it also encapsulate a realistic solution to the challenges concerning potential new rights, such as the right to be present online or the right to be served justice by a human being?
Keywords: digital justice, technology, fair trial, ODR.
JEL Classification:K10, K24, K38
Page 144 - Lecturer Cornelia Beatrice Gabriela ENE-DINU
Contemporary Economic Ideological Currents and Their Influence on the Evolution of Law: From Neoliberalism to SustainabilityAbstract:The study analyzes the impact of various current economic ideologies on business law regulations, focusing on ideologies such as neoliberalism, green economy, circular economy, and social economy. The main objective is to explore how these approaches influence legislation and policies in various economic and business sectors. The research employs a mixed methodology, including comparative legal analysis and case studies from different jurisdictions to highlight the variations in the implementation of these ideologies in legislation. Additionally, interviews with experts in the legal and economic fields, as well as an analysis of relevant legislative documents for each ideological current, are used. The results of the study show that neoliberalism promotes deregulation and reduces state intervention in business, which influences the legal framework in favor of a more flexible and competitive business environment. In contrast, the green and circular economies impose strict regulations on sustainability, forcing companies to adopt environmentally responsible business practices. The social economy introduces new norms in business law, emphasizing social responsibility and equity. The implications of this study suggest that the evolution of business law will continue to be deeply influenced by these economic currents, forcing a constant adjustment of regulations to address the new economic and social realities.
Keywords: current economic ideologies, business law, the green economy, sustenability, new economic and social realities.
JEL Classification:K22
Page 156 - Lecturer Dorina GJIPALI; Lecturer Pranvera BEQIRAJ
The Legal Framework and Potential Opportunities of Public Universities in Albania for Providing Services to Third PartiesAbstract:Public universities in Albania play an important role in serving the community and in training professionals who contribute to the economic and social development of the country. Law no. 80/2015, dated 22.07.2015 "On higher education and scientific research in institutions of higher education in the Republic of Albania" describes universities as centers of knowledge and innovation, with the mission to guarantee equal opportunities in education and to promote social cohesion. Furthermore, these universities offer an environment where teaching is combined with scientific research, preparing students for the challenges of the global labor market and strengthening ties with the community. However, the legal framework of services for third parties from these institutions remains unclear and often unimplemented. This article will examine the legal framework and practical obstacles that public universities face when providing services to third parties, as well as the benefits of international cooperation. Analyzing successful international practices and proposing strategic improvements, the study suggests that improving the legal framework and incorporating effective strategies can help Albanian universities play a wider role in serving the community and securing sustainable financial resources. The methodology used in this study is based on descriptive and comparative methods.
Keywords: services to third parties, legal framework, legal challenges, economic development, social cohesion, public universities.
JEL Classification:K10, K33
Page 168 -
Lecturer Lucian-Sorin STĂNESCU
The Influence of H.L.A. Hart’s Conception of Social Roles on the General Theory of Legal Responsibility and Liability and Its Reflection in Romanian Positive LawAbstract:Social roles would have remained a concept of the social sciences, if the analysis of the typology of (Romanian) criminal law sanctions would not allow a parallel between them and the punishments provided for certain legal "figures", which could reflect the reception and response of the law to such social entities. The realization of this parallel would not have been possible without reviewing the works of general theory of law and comparative law through which the concept of the English philosopher H.L.A. HART, who has the merit of having proposed the concept of social role as a basis or cause of responsibility and, in particular, of legal liability has penetrated the Romanian legal doctrine. In the following, we set out to verify the validity of H.L.A. Hart's theory of "social roles" as the basis of legal responsibility and liability in Romanian positive law, associating this sociological category with the legal concept of "natural person".
Keywords: social roles, natural person, responsibility, legal liability, positive law, system and typology of punishments in Romanian criminal law.
JEL Classification:K41, K42
Page 185 - Assistant professor Amit Kumar KASHYAP; Student Milan PRAJAPATI
Exploring the Distressed Assets Merger and Acquisition in India Under the Insolvency and Bankruptcy CodeAbstract:This paper examines the legal elements of distressed asset merger and acquisition (M&A) transactions in India, highlighting the specific risks and difficulties involved. Distressed asset deals need a strategic knowledge of the deal's worth, a focus on avoiding target company meltdowns during the sale, and immediate action to offset possible reputational harm. The implementation of the Insolvency and Bankruptcy Code (IBC) in India has significantly altered the landscape, transforming distressed assets from being disregarded by investors to becoming a genuinely beneficial investment opportunity. The IBC has played a pivotal role in alleviating challenges associated with banks' balance sheets, fostering the reallocation of capital for more efficient use. The study explores how the time-bound procedures mandated by the IBC have expedited the resolution process, enabled successful distressed asset acquisitions and contributed to the overall efficiency of capital deployment in the Indian market. The adoption of the Insolvency and Bankruptcy Code (IBC) in India has substantially transformed the environment, changing distressed assets from an afterthought by investors into a legitimate investment opportunity. The IBC has played a critical role in addressing difficulties related with banks' balance sheets, promoting capital reallocation for more efficient usage. The research looks at how the IBC's time-bound processes have accelerated the resolution process, allowing for successful distressed asset purchases and adding to the overall efficiency of capital deployment in the Indian market.
Keywords: distressed assets, insolvency, merger and acquisition, corporate insolvency resolution process, debt restructuring.
JEL Classification:G34, G33, K22, G38, M21
Page 200 - Associate professor Gheorghe COSTACHE; Police inspector Adrian COSTACHE
Early Education, the Foundation of Preventing Criminal PhenomenonAbstract:The development of society and the evolution of the sciences are fundamental factors in the overall progress and future well-being of people at global, regional and local levels. This development is in line with the practice accumulated over time and with an explosion in crime at all levels, with the crimes committed not infrequently taking precedence over the development of a legislative system to protect the population and the general interest of society. Preventing the commission of anti-social offences is a lengthy, cumbersome process which requires specialists in the field to anticipate possible shortcomings which can be used by those interested in circumventing the rules governing the whole of social life.
Keywords: crimes, prevention, legislation, education, drafting, adoption.
JEL Classification:K14
Page 212 - PhD. student Gabriela TEODORU
The Legal Regime of the Unilateral Promise to Sell. Delimitation from the Option AgreementAbstract:The promise to sale belongs to the broader category of preparatory acts (contracts), those that prepare the conclusion of a contract, if we accept that its conclusion can go through several stages: negotiations, expressing the option, unilateral promise, synalagmatic promise, etc. Creations of jurisprudence and doctrine prior to the current Civil Code, preparatory contracts, also known as provisional contracts, prior contracts, antecontracts or contract promises, represent the approach prior to the sale process. The conclusion of the sales contract is not carried out automatically in all cases, but following pre-contractual agreements that have the role of binding the parties from a legal point of view, they feeling the need for additional guarantees in order to perfect the contract in the future, constituting themselves separate contracts of the sale. A more detailed exposition of the legal regime of each type of preparatory contract leads to a better understanding of the differences between these contracts, the rules regarding their conclusion, the effects they produce and the manner of their execution. The delimitation of the option agreement from the unilateral promise to sell is required in the context where the risk of confusion is quite significant, since both the option agreement and the unilateral promise are contracts that confer a discretionary right to the beneficiary of the option, respectively to decide, or not, the conclusion of the foreseen contract. In the comparative analysis of the two operations, the type of obligation assumed in the case of each of the two is of interest, leading to the qualification of the legal nature of each, as well as the mechanism in which, in case of a positive option, the foreseen contract will be concluded.
Keywords: promise to sell, option agreement, preparatory contracts, discretionary rights, option to contract, pre-contract.
JEL Classification:K11,K12,K15
Page 221 - Lecturer Lucian GHEORGHE
The Legal Nature of the Romanian Seafarer’s Employment ContractAbstract:Objectives of the study - Every Romanian seafarer has the right to a safe and hazard-free job that respects the right to fair employment conditions, decent life on board ships, medical care and other forms of social protection, as provided for in the Maritime Labour Convention (MLC 2006) and its 2014 amendments, as well as in the Agreement concluded between the European Community Shipowners' Association (ECSA) and the European Transport Workers' Federation (ETF). According to the Government Emergency Ordinance (GEO) no. 50/2022, seafarers of Romanian nationality who work on board ships flying the Romanian or foreign flag must have a seafarers' employment contract signed by both the seafarer and the shipowner or a representative of the shipowner. Research methods used - in this paper we have used the analytical method and the synthesis method. Results and implications of the study - if the length of service, as regulated by the Labor Code, can now also be proven by Romanian seafarers through this regulation introduced by GEO no. 50/2022, the seniority in the specialty for seafarers is not regulated in our country. This escape of the legislator has a negative impact for this category of employees because they cannot hire, on land, in a suitable position when this condition of seniority in the specialty is imposed.
Keywords: maritime work, seniority, seniority in specialty, navigator, ship.
JEL Classification:K31, K39
Page 237 - Lecturer Anamaria GROZA
Independence of Judges and Unitary Judicial Practices – When Do They Become Irreconcilable? An Analysis from the Perspective of the Hann- Invest Judgment of the Court of Justice of the European UnionAbstract:The Hann-Invest judgment, handed down by the Court of Justice of the European Union (CJEU) on July 11, 2024, provides an excellent opportunity to capture the limits to which the mechanisms for the unification of judicial practice can go, from the perspective of the independence of judges. National measures to remedy non-unitary practices must be in line with the requirements stemming from the principle of judicial independence. In this article, we aim to analyse the compatibility with the rules established by the CJEU of three of the national civil procedural mechanisms for the unification of practice, namely the effects of cassation decisions, the judges’ evaluation criterion of judgments amended/dismissed/cancelled for imputable reasons and the courts’ non-unified practice sessions. The research conducted is descriptive and explanatory, accompanied by critical and comparative analysis. Both the independence of judges and the reduction of non-unitary judicial practices are necessary objectives. The Romanian legal system offers a balanced, though apparently not very efficient, solution to achieve both goals. The non-unitary practice meetings of the courts, as well as the quarterly meetings of the courts of appeal, which are also concerned with judicial practice, lead to the adoption of documents which, although not expressly binding for judges, are nonetheless influential in practice. Judges will most probably tend to align their practice with that adopted at the joint sittings, but this does not affect their independence.
Keywords: independence of judges, non-unitary practice, cassation decisions, judgments modified/dismissed/cancelled for imputable reasons, non-unitary practice sessions of the courts.
JEL Classification:K41
Page 244 - Lecturer Aurel Octavian PASAT
The Crime of Leaving a Person in Distress Without Assistance. Comparative Law StudyAbstract:In criminal law, the criminal offence of ‘leaving a person in distress without assistance’ refers to the act of abandoning or failing to render assistance to a person in immediate and imminent danger of losing his life or suffering serious bodily harm. It is important to see how this crime is treated in the laws of Romania, France and Italy to understand the similarities and differences. The study reflects differences resulting from different cultural and legal approaches, highlighting how each country perceives the moral and legal responsibility of individuals in emergency situations.
Keywords: offence, legal systems, criminal character, danger, omission, comparative law.
JEL Classification:K14
Page 257 - Lecturer Carol Ijeoma NJOKU
Exclusion of Women from Refugee Protection and Effects in the United States Gender Asylum JurisprudenceAbstract:The protection of female asylum seekers is one of the most mismanaged processes in international refugee law. Despite the ubiquity of gender related persecutions (GRP) around the world, survivors who flee abusive attacks face interpretation barriers in asylum countries. This is because of the perception of gender-based persecutions (GBPs) as “unConvention” matters without nexus qualification. International Refugee Law (IRL) created a huge disadvantage for women by omitting sex as a ground for refugee status and protection. Article 1. A(1) of the 1951 Convention Relating to the Status of Refugee (the Refugee Convention) established eligibility criteria to only those aliens who suffered or fear persecution under race, religion, nationality, political opinion and membership in a particular social group (MPSG). Although GBPs can occur on any of the Convention’s grounds, certain severe human rights violations are gender specific. Those are eliminated from the Convention’s conditions for protection. Findings by the 2002 Guidelines of the United Nations High Commissioner (UNHCR) indicated that women are more common victims of GBPs than men. Unfortunately, the elimination of their persecutory experiences from the scope of refugee protection have increased female vulnerabilities and inequalities. Despite the numerous developments by the UNHCR to reinforce the recognition of GBPs within the (MPSG), conflicting jurisprudence in the United States gender asylum attests to its lack of sustainability. Asylum claimants on GBPs are largely interpreted as “unConvention” refugees, while their persecutory experiences are perceived as “personal,” hence do not meet the burden of nexus. This study examines the issues affecting female disenfranchisement in IRL, impacts on the United States gender asylum, the prospects of integration of gender experiences in IRL as well as possible reforms in the United States asylum practice.
Keywords: refugee protection, asylum, United Nations High Commissioner, human rights.
JEL Classification:K33
Page 269 - Associate professor Luiza Cristina GAVRILESCU
The Incidence of Exemption from the Automatic Suspension of the Resolution of Appeals Filed by Creditors in Connection with Claims for the Recovery of Debts Prior to the Opening of Bankruptcy Proceedings of the Debtor Insurance CompanyAbstract:This study analyses the inconsistent judicial practice regarding the effects of opening insolvency proceedings for insurance companies on the appeals filed by both creditors and the insolvent debtor against court decisions resolving creditors’ actions to recover debts from the debtor’s assets, initiated before the opening of the collective proceedings. The aim is to formulate interpretative proposals to eliminate disparities between the solutions pronounced in such cases. The working hypothesis under consideration is of great practical importance, given the opening of bankruptcy proceedings against insurance companies that hold a significant share of the national insurance market and are inevitably involved in many litigations at various procedural stages.
Keywords: insurance company, insolvency, automatic suspension, debt recovery, unification of judicial practice.
JEL Classification:K22
Page 297 - Lecturer Ovidiu-Horia MAICAN
The Legal Regime of Competition in SwitzerlandAbstract:Competition policy plays a key role in promoting consumer welfare and market opening. Lack of competition is one of the main reasons for the high prices of many products and services in the Swiss market. Traditionally, Swiss competition policy has been relatively mild and unobtrusive, leaving a relatively uncompetitive internal market unchallenged. The impact of competition policy on economic development has therefore been neutral at best. However, as the slow pace of growth becomes an issue, a stronger competitive approach has been identified as a key factor in improving growth prospects. The 2003 Cartel Law Reform strengthened Swiss competition law, in particular by introducing direct sanctions for the most serious violations and a leniency programme, bringing it closer to that of the European Union and many other OECD countries. The Competition Commission has been given considerable new powers to combat private restrictions on competition. Following the agreement between Switzerland and the EU on cooperation and exchange of information between their competition authorities, which entered into force on 1 December 2014. Switzerland continued bilateral talks with Germany on cooperation between the respective competition authorities. Germany is Switzerland's most important trading partner. On November 1, 2022, Switzerland and Germany signed a cooperation agreement between their competition authorities. After the Swiss Federal Assembly approved the agreement, it entered into force on September 1, 2023. The agreement, like the agreement between Switzerland and the EU, allows competition authorities to apply competition law more effectively in cross-border cases and is drafted similarly to the agreement between Switzerland and the EU.
Keywords: Switzerland, competition, reform, European Union.
JEL Classification:K33
Page 309 - Professor Ismail ZEJNELI
Money Laundering as a Form of Organized CrimeAbstract:Dirty money is considered all the money earned from illegal and criminal activities, the authors of which try, in different ways, to introduce the money earned in a criminal way, into the legal market. Such a thing is certainly not easy to do; however, the same has happened, and unfortunately, it still happens nowadays. There are many ways in which it happens, such as entering money into businesses that do not work with invoices but with cash, or investing in games of chance such as casinos, betting, etc. Criminal activities are considered those activities related to organized crime, such as criminal activities related to corruption, activities related to narcotics trafficking, activities related to weapon trade, activities related to human trafficking, activities related to money laundering, etc. Regarding this very dangerous phenomenon, the legal infrastructure must be changed and a new law for its prevention should be issued. Also, for the purpose of fighting money laundering, local and international specialists in the field must be consulted, as the same now has already become an international problem.
Keywords: money laundering, economic crime, legislation, prevention.
JEL Classification:K14, K33
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