Normative Act Research Articles

The Transposition of Directive (EU) 2019/1151 into Romanian National Law

"Directive (EU) 2019/1151 of the European Parliament and of the Council amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law, which was adopted by the European Parliament on 20 June 2019 and entered into force on 31 July 2019 (hereinafter as: Directive), is the first of two directives in the company law package. Promoting the use of digital tools and processes is the main purpose of the Directive, which involves three main things, i.e. enabling: online filing and accessing of company information, the online formation of certain types of companies, and the online registration of branches. In Romania, the transposition deadline of the Directive has been extended to 1 August 2022, with the authorization of the European Commission. The recent legislative evolution in the field of company law within the Romanian national law gives cause for hope. However, a normative act aiming at the implementation of the Directive into Romanian legislation is still far from completion, so the transposition procedure remains to be an ongoing process. The legislative evolution of the Romanian company law is quite dynamic despite the significant delay in the transposition of the Directive."

On the uncertainty of the legal regulation of the state registration of the lease agreement of a building or structure

The reform of civil legislation through the adoption of separate laws and amendments to certain sections of the Civil Code of the Russian Federation has caused the appearance of many contradictory and uncertain provisions in this normative act. The article considers one of such cases concerning the state registration of a lease agreement for a building or structure. The purpose of state registration of a real estate lease agreement is to establish in the Unified State Register of Real Estate in respect of real estate encumbrances arising from a real estate lease agreement; as a result of entering information about the lease agreement into the register, the rights of the lessee become known to all third parties (potential buyers, mortgagees and others). Currently, a significant place in the regulation of relations on the state registration of a real estate lease agreement is occupied by judicial practice, compensating for the shortcomings of legislation. The authors analyse the gradual development of judicial practice of the Supreme Arbitration Court of the Russian Federation, and then the Supreme Court of the Russian Federation on the application of norms on the state registration of lease agreements of a building or structure. Taking into account the established judicial practice, in order to improve the legal regulation of the lease agreement of buildings and structures, it is proposed to amend paragraph 2 of Article 651 of the Civil Code of the Russian Federation, thereby eliminating the contradictions between the general rules on the conclusion of the contract and special rules on the lease agreement of buildings and structures.

Confidentiality in Mediation in Resolving Property Disputes: Reality and Challenges

Mediation is a process based on the interests of the parties, which increases the mediator's rights to the extent permitted by the disputing parties. The story of the apple heart and rind related to mediation also seems to be easily understood, but, at the same time, it is considered to be a complex problem. In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In fact, this regulation requires a change to specify clearly what type and amount of information a mediator is required to provide to a minister. Also in This work is explained the legitimate grounds for breach (break) of confidentiality. in the course of obligation to disclose information by another court decision, the court should only require the disclosure of information directly related to the case from the mediation participants. At the same time, the restriction that information should be disclosed only to an adequate and proportionate extent to a lawful purpose can be considered as a useful tool for the protection of a legitimate purpose – the confidentiality of information. Ultimately one of the important functions of a mediator for the successful completion of mediation in business disputes is to focus on the interests of the parties.

Pretrial risk assessment instruments in the US criminal justice system—what lessons can be learned for the European Union

Abstract This article explores the possibilities of using artificial intelligence (AI) in the European judicial area with a special emphasis on risk assessment instruments and the justification of their use in determining the likelihood that a defendant at large will seek to thwart the goal of criminal proceedings. In this regard, experiences in the application of various risk assessment instruments in US judicial practice are first analysed. Then the European normative framework established at the level of the Council of Europe and European Union (EU) law is considered with special emphasis on the ‘Proposal for a Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence’ as a key normative act that will determine the long-term preconditions for the application of the risk assessment instruments in the criminal proceedings of EU Member States. Finally, an attempt is made to give answers to some specific questions that arose from the implementation of AI in EU criminal justice systems taking into account the presumption of innocence, the right to an objective and impartial judge and the principle of proportionality.

For the Issue of Normative Acts Regulating Inclusive education

The article discusses the legal frameworks of different countries, which is important for a better understanding of inclusive education.It should be noted that the fourth goal of sustainable development is to provide the quality education. Everyone should receive equal education, eliminate inequality in the educational system, increase the number of qualified teachers - unicef.org.ge. This implies that all people should be educated regardless of their peculiarities, except in the case of mental retardation. Consequently, in addition to the two main missions - Education and Science- the university has a third mission. It is a quality life-long education and community development through a variety of projects. Therefore, the introduction of inclusive education at the highest level is a direct demand and need. This is regulated by the existing legislative and normative acts in this field.It is noteworthy that in the context of globalization, legislative norms are formed taking into account all the principles and norms offered by the international community. Protecting the rights of people with disabilities is an important issue, but it must also be done by providing additional guarantees of their equality and discrimination. One of the main point is that no person shall be denied a right to an education.The article discusses mainly the cases of Sweden and Georgia. We studied laws and regulations in these countries. All these documents highlight that all people have the right to education and every state must respect this right. The legislation is arranged differently in every country and in many countries it is in the process of refinement. However, it should be noted that a lot is being done in Georgia, but there is still a lot to be done.

Oczekiwania i kierunki zmian

This study is devoted to the analysis of the provision of Article 193 of the Constitution of the Republic of Poland, which authorizes each court to submit a legal question to the Polish constitutional court about the compliance of a normative act with the Constitution, ratified international treaties or the act, if the answer to a legal question depends on the resolution of a case pending before the court. It is worth considering the expectations and directions of changes of the analyzed institution against the background of the applicable legal provisions. The practice of applying a legal question to the Constitutional Tribunal needs to be examined. During these more than thirty-five years, the constitutional measure has undergone some transformations. The main goal of this work is to assess the title legal question through the prism of over three decades of its operation.

Considerations regarding the EC Regulation no.261/2004 from the Perspective of the Protection of Passengers, but also of Air Transport Operators

The study regarding the interpretation and application of the provisions of the EC Regulation no. 261/2004 aims to highlight theoretical and practical aspects outlined since the entry into force of this normative act and until now. The European legislator has adopted this normative act, with direct binding force for the member states of the European Union, in order to ensure a protection of passengers who have concluded air transport contracts with different effective air transport operators. In essence, passengers are consumers and air carriers are in a dominant position, as a contracting party, in this type of contract, which is usually one of accession. However, the interpretation and application of this normative act in the different Member States has generated non-unitary practices from the perspective of the terms defined by the Regulation, but also unfair practices in the sense of forming an immoral market in which the right to compensation is traded.

Systematization of legislation as a way to ensure the effectiveness of legal regulation: theoretical and legal aspects

The analysis of the current state of legislation indicates that there are several problems, the solution of which can significantly increase the effectiveness of legal regulation. Achieving a high level of quality of legislation is possible by creating a certain model of systematization of legal norms, as well as the formation of a structured system of legislative acts. Systematization of legislation as a type of law-making should become a starting point in solving the problem of inefficiency of legal regulation, since it is the primary link of the mechanism of legal regulation. It wasconsidered that there was a need to provide a unified concept of reforming administrativeand tort law, which should be based on scientific and practical conclusions basedon the dynamics of changes in legislation. The author defends the position of full codification of administrative liability in compliance with the principles of completeness and consistency in a single normative legal act. In order to achieve certainty of the legal regulation of administrative liability, taking into account the two-level system, it is proposed to establish a single form of codification of norms in the legislation of the constituent entities of the Russian Federation.

Requirements for the Content of a Court Decision in the Norms of the Statute of Civil Procedure of 1864

The article analyzes the content of the norms of the Statute of Civil Procedure of 1864 in terms of requirements for a court decision. The article considers the existence in the norms of the specified normative legal act of such requirements to the court decision as legality, validity, motivation and fairness. A comparative characteristic of the norms of the Statute and the norms of the current legislation governing civil legal proceedings, in terms of requirements for a court decision, is made. A conclusion was made about the historical continuity of legal regulation regarding the content of these requirements.

Approval of the new judicial map: A priority of the Albanian justice reform

The justice reform that was crowned in our country with constitutional and legal changes in 2016, aims to reorganize existing institutions in the field of justice and establish new constitutional institutions that aim to increase public confidence in more effective justice. One of the main normative acts that are part of the justice reform in Albania is the adoption of law no. 98/2016 “On the Organization of the Judiciary in the Republic of Albania”, which provides, inter alia, the approval of the new judicial map, based on the criteria and principles of territorial distribution of courts of general jurisdiction, courts of appeal and special courts, including administrative courts. Based on this normative act, it turns out that the new judicial map has not been finalized yet, which is approved by the Ministry of Justice in cooperation with the High Judicial Council. Related to the content of the new draft judicial map in the discussion process, the question that arises is whether “out of 22 courts of general jurisdiction of the districts, including six administrative courts of first instance, including six courts of appeal of general jurisdiction, which are supposed to be reorganized. in 12 courts of general jurisdiction, two administrative courts of first instance and one court of appeal of general jurisdiction “would it be a real opportunity to increase the quality of judicial activity, within a fair legal process? There is a postulate in jurisprudence that is “delayed justice is denied justice”. Based on this postulate, the new judicial map has urged the debate regarding the fact that the resolve of court proceedings as soon as possible, as well as the unification of case law due to the centralization of courts, should not jeopardize access to the parties and interest group for a fair and public process by a competent, independent and impartial tribunal established by law. The lack of resources in the judiciary, due to the vacancies with judges and prosecutors that are currently being created at all levels of the justice system, cannot serve as an excuse for the concentration of courts through a new judicial map without analysis of other social and economic factors, which, as we analyzed above, directly affect the delivery of a more efficient and effective justice than what we currently have.

Понимание конституционности в философско-правовом дискурсе: мнимые и подлинные альтернативы

Ensuring compliance of legal acts with the constitution is a problem of legal dogma and practice, as well as of the philosophy of law. In the latter, these ques­tions are linked with more general problems of validity of normative orders, in­cluding a legal one. In positivist philosophy of law, there are two alternative ap­proaches to their understanding – analytical jurisprudence and legal realism. The first describes the legal order as a system of norms, where the validity of a norm is determined by its compliance with a norm of higher level. However, because of the ambiguity of constitutional text it is often impossible to give a definite answer on the conformity of law with the constitution. The recognition of a law as constitutional depends upon the discretion of the constitutional re­view body which decides a case. These approaches of the analytical philosophy of law are practically identical to the legal realists position according to which a normative text doesn’t have any meaning before it’s interpretation by the autho­rized body, that determines a real content of a text. Within the framework of these areas of legal thought, the idea of ​​ constitutional review loses any meaning, and the effectiveness of the constitution, not only its supremacy, is called into question. Non-positivist approach is a genuine alternative to this understanding of constitutionality. According to it the limiting of public authorities and human rights realization are the purposes of a constitution. In formal legal sense, consti­tution as a normative act only fix those principles that guarantee the proper orga­nization of government. These principles express the essence of the constitution and serve as standards of constitutional review. Such understanding of constitu­tionality justifies different interpretations of constitutional text, and at the same time sets limits to it with the help of agreed understanding of general principles.

Стадии судебного разбирательства в Калмыцкой степи во второй половине XIX – начале ХХ в.: особенности правоприменительной практики

The article aims to study the stages of the trial in the Kalmyk steppe in the second half of the 19th century and to identify special law enforcement practices. The study is based on the analysis of the imperial legislation and documentary materials from the funds of the National Archive of the Republic of Kalmykia. The legal norms of Section II, On Judicial Proceedings in Ulus Zargo, of the Provisions on the Administration of the Kalmyk People (1847) can be grouped according to the thematic principle: the purpose and sources of legal proceedings in the ulus courts; participants in the trial; punishment; execution of punishment. Unfortunately, the legislator in this normative act did not consider in detail the procedure of the proceedings, which determined the relevance of the article. The study is based on the principles of scientificity and objectivity. The research methods were: reconstructive, which restored the stages of judicial proceedings; comparative historical, which revealed the general patterns and features in the functioning of judicial proceedings in the Kalmyk steppe; and historical genetic, which established the cause-andeffect relationship in the judicial proceedings’ development. In the course of the study, the authors emphasize the analysis of the case management practice of the ulus directorates in the field of judicial proceedings, thus highlighting their three main stages in the Kalmyk steppe in the specified period. The first stage is the preliminary investigation; the second is the trial itself; the third is the execution of the verdict. The authors note that the Provisions of 1847, for the first time in the imperial legislative practice on regulating the vital activity of the Kalmyk people, took into account the level of their well-being in the punishment. The authors conclude that the legal proceedings in the Kalmyk steppe during the analysed period were characterised by the following features: (1) the incompetence of judges, who had a low level of education, not to mention legal literacy, was typical for this period; (2) the judicial system was not independent from the administrative power, because ulus guardians and their assistants played an essential role in the work of ulus Zargo, and since 1892 they started managing the courts; (3) despite the fact that, after the judicial reforms of Alexander II, openness, adversariality, equality of the parties were declared as the basic principles of justice, the ulus Zargo did not implement these principles, since these reforms did not apply to foreign societies of the Russian Empire.

ОСОБЛИВОСТІ ВЗАЄМОДІЇ ПРАВООХОРОННИХ ОРГАНІВ УКРАЇНИ З КРАЇНАМИ ЄС В УМОВАХ ВОЄННОГО СТАНУ

Peculiarities of the interaction of law enforcement agencies of Ukraine with the EU countries in the conditions of martial law. The aforementioned scientific article outlines the issues of ensuring the cooperation of law enforcement agencies of Ukraine with EU countries in conditions of martial law. The theoretical and practical interest in the study of the legal security of military security is primarily related to the socio-economic and geopolitical changes that have taken place around the world in recent years. In modern realities, Ukraine faces many problems, the solution of which is directly related to the identification and analysis of sources of real and potential threats to national interests. The purpose of this article is to study individual forms of cooperation between law enforcement agencies of the EU and Ukraine under martial law. The author comes to the conclusion that the effective functioning of pan-European cooperation of states in the field of expert forensic and operational investigative activities is possible under the condition of constructive and multifaceted cooperation of the Council of Europe and the European Union both at the institutional level of the specified international organizations and within the framework of the activities of individual structures. The practice of applying an arrest warrant, as one of the aspects of mutual recognition of court decisions in criminal cases, has successfully proven that cooperation in the field of justice and internal affairs along the lines of expert-criminological and operational-investigative activities is possible without the harmonization of criminal and criminal-procedural legislation of European states, as well as without the creation of a model pan-European criminal code. The successful application of the European arrest warrant also gave the EU the opportunity to move even further in the direction of mutual recognition of court decisions – to develop several European warrants, including warrants for witness statements and investigations. The European Investigation Warrant is a special mechanism for the execution of one or more investigative measures within the framework of the investigation of crimes in the requested state in order to obtain evidence. Separate legal instruments were integrated into a single normative act, which contributed to the process of codification and progressive development of international law and replaced the traditional system of providing legal aid in criminal cases. The European Union, using new legislative powers in the field of expert forensic and investigative activities, moved to adopt legally binding normative acts that do not require national ratification on the most urgent issues of ensuring security and law and order in the EU.

Selected Aspects of the Europeanization of Public Finance Law

This article deals with selected aspects of the Europeanization of public finance law. For this reason, the article focuses on some important sources of European public finance law and their impact on the budgetary discipline of member states. In this context, the attention is paid to the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), which is not a normative act, but it is an international treaty outside the EU law whose provisions are binding on the member states that have signed this treaty. The article also presents a seeking for budgetary coherence within the European Union member states and then it presents an evolution of budgetary discipline of member states. The main aim of the article is to confirm or disprove the hypothesis that the compliance with the binding mechanisms of the budgetary discipline of the member states introduced after 2010 is always well enforceable. The scientific methods used in the article are analysis and synthesis, description and comparative methods.

Legal status of business partnerships under the legislation of the Republic of Kazakhstan and the Russian Federation

The progress of market relations without fail requires a theoretical understanding of the various legal forms of doing business, where special attention is given to business partnerships. In world practice, such enterprises are successfully used for small and medium-sized businesses. At the present stage, this legal form is used to create short-term joint ventures, especially for the implementation of short-term investment projects. The issues of the legal status of business partnerships as a factor of sustainable development are traditionally widely covered in civil law, at the same time, the legal status of business partnerships of the Republic of Kazakh-stan and the Russian Federation should be given more attention in the context of the realities of today's innovative processes and reforming national legislation. The research using approbation of a set of scientific methods made it possible to reveal legal approaches to the study of business partnerships, to analyse the relevant cur-rent legislative framework, to assess its effectiveness and compliance with the re-quirements of updated business processes. The article substantiates that business partnerships are the most accessible legal form of doing business in many coun-tries, while also remaining the prevailing form in the territory of the Republic of Kazakhstan and the Russian Federation. In turn, it was stated that the legislation of the Russian Federation is only on the way of its comprehensive reform in the field of legal regulation of the position of business partnerships (general and lim-ited partnerships), which requires a balanced development and adoption of a sin-gle federal normative legal act.

ЩОДО ЗАПОБІГАННЯ ІНДИВІДУАЛЬНИМ ТРУДОВИМ СПОРАМ

The paper analyses the peculiarities of prevention of labor disputes through the implementation of grievance procedures at the enterprise level. The existing mechanisms for resolving individual labor disputes in Ukraine cannot be called fully effective, which is primarily due to the lack of balanced legislative regulation of this issue. In addition, the result of the resolution of an individual labor dispute does not always lead to the satisfaction of the interests of both sides of the employment relationship – the employee and the employer. In this regard, an important place in the current labor law belongs to the procedures for preventing labor disputes. These procedures are generally implemented at the local level, through the prism of consideration by the employer of the grievances of employees related to the existing conflict situations in the working environment. National legislation does not contain any requirements for employers to deal with employee grievances. Such procedures can be part of the employer's internal labor rules and regulations, or be developed in the form of a separate local normative act of the employer. The grievance procedures are not uniform and primarily depend on the organizational structure and economic capabilities of a particular employer. But in any case, such procedures must: be developed and approved with the active participation of trade unions or other employee representatives; set quick deadlines for implementation and avoid unnecessary formalism; contain effective measures to ensure the safety of confidential information; be simple in content; ensure that employees are informed of all steps and measures taken as part of the grievance procedure; ensure the right of employees to be accompanied by trade union representatives or other employees at all stages of consideration of complains; ensure the principle of equal rights and opportunities for men and women. The adoption of the grievance procedures at the enterprise enables employees and employers to independently resolve individual conflicts that arise in the field of work and may subsequently result in labor disputes. A properly functioning procedure for handling employee claims will not only help prevent labor disputes, but will also allow prediction and elimination of their occurrence in the future. In addition, the existence of such a procedure, which is also aim at resolving conflict situations directly between employees, will have its overall positive effect, strengthening among employees a sense of fairness, coherence of interests and trust in the employer.

The Genoa Decree and Normative Acts Adopted after the Collapse of the Morandi Bridge in an Economic Perspective

The fall of the Genoa bridge caused considerable damage to the economy of the city leading to repercussions for the north-western area of Italy. After a brief review of the costs caused by the bridge collapse, the legislation leading up to the Genoa decree, adopted immediately after the incident, has been analysed. The legal act contains an organic collection of specific norms to mitigate the economic consequences, with special regard to the manufacturing and maritime sector. The economic impact of the locally adopted provision is also the subject of analysis. Due to the exploratory nature of the work, particular attention has been paid to the role played by expectations and credibility of politicians' statements.

Некоторые аспекты сравнительно-правового анализа правового режима особо охраняемых природных территорий в Республике Корея и Российской Федерации (на примере озера Байкал)

As part of the implementation of the project for building the concept of international legal protection of Lake Baikal, supported by the Russian Foundation for Basic Research, the main components of the modern legal regime of specially protected natural areas in the Republic of Korea are considered. Based on the comparative legal method of research, the genesis of the formation of a system of specially protected natural areas in the Republic of Korea is analyzed, the main features of the modern components of this system are considered, and a number of statistical data in the study area are given. A detailed analysis of the provisions of the main normative act regulating public relations in the field of creation, management and development of protected areas - the Act on Natural Parks of the Republic of Korea is given. A general idea of the composition of special legislation in the area under study is given. A number of conclusions have been drawn that allow transposing the accumulated experience in the formation, management and development of the protected area system in the Republic of Korea to the relevant law-making, managerial and law-enforcement field of activity in the Russian Federation, primarily in terms of preserving the unique ecosystem of the UNESCO world natural heritage site – Lake Baikal.

Wyrok o braku niezgodności jako trzeci rodzaj rozstrzygnięcia przed Trybunałem Konstytucyjnym

It is not specified in the Constitution nor in the Constitutional Tribunal Act what should be the exact formula of a ruling concerning constitutionality of the challenged normative acts. There are two main types of relationship between the normative acts which are indicated in the course of review of the norms, namely conformity and non-conformity. However, a ruling that the subject of the challenge conform or does not conform to the basis of review may not always precisely describe the relationship between the two norms. In some circumstances it is recommended to deploy other formula which will describe such relationship in a more adequate manner. In practice, a third formula of rulings has been developed in the jurisprudence of the Constitutional Tribunal, i.e. a ruling that a certain legal provision is not inconsistent with a specified constitutional provision. It differs in its meaning from the rulings on conformity and non-conformity. On the basis of the hitherto jurisprudence of the Constitutional Tribunal two sets of circumstances which lead the Tribunal to rule on the challenged provision’s lack of inconsistency with the normative act of higher rank may be distinguished. The formula is not inconsistent with has been applied both in order to confirm constitutionality of the challenged regulation and where the basis of review has been found inadequate with the challenged norm. At present the formula is not inconsistent with is extremely rarely used to indicate simple conformity. In the majority of cases it is applied in order to emphasise the lack of adequacy between the questioned regulation (the subject of a challenge) and the indicated normative act of higher rank (basis of review). If the basis of review is adequate with the subject of a challenge it means that there is a common ground of reference and the necessary connection between the two provisions that will enable an assessment of their interrelation. In the most recent Tribunal’s case law it is expressly underlined that it is the initiator of the proceeding that is under the duty to prove the adequacy between the norms. In the reasoning for his application he should bring forward arguments which will demonstrate, at least implicite, that the chosen basis of review is relevant and appropriate. Such a demonstration of the adequacy supplements the course of determining the scope of the constitutional review by defining the content of the provisions indicated as the basis of review and the subject of a challenge which are to be confronted against each other. In practice, the adequacy of the basis of review is often so obvious that there is no need for the Tribunal to put forward in the reasons for a ruling any arguments which will support it. The question of the kind of relationship existing between the subject of a challenge and the basis of review constitutes a first stage of the adjudication to the merits of the case in the proceedings before the Constitutional Tribunal. Where there is a lack of an adequate relation between those regulations, adjudication upon the constitutionality is objectively impossible since there is no appropriate ground for assessment of the challenged regulation. Failure to prove adequacy between the subject of a challenge and the basis of review results in an issuance of a judgment that the norms are not inconsistent. It should be qualified as an incomplete ruling as to the merits of the case. A judgment which includes a formula is not inconsistent with does not interfere in the actual legal system, nor does it directly affect the application of the challenged regulation in practice. However, it may indirectly affect courts’ rulings in particular cases. Being under the influence of the Tribunal’s judgment on the lack of inconsistency courts might refrain from applying particular regulations in some cases. Adjudication on the lack of inconsistency falls within the scope of the Tribunal’s competence to review hierarchical conformity of normative acts. It does not rebut the presumption of constitutionality of the challenged regulation. However, it also does not totally prevent subsequent review of the challenged regulation with the same basis of review. Such review wall be admissible providing that the adequacy between the challenged regulation and the basis of review will be pointed out and proven.

The Ostmarkgesetz of 14 April 1939 – One of the Normative Grounds of the Annexation Of Austria

The article presents the political and legal changes that accompanied the passing and then the introduction of the Ostmarkgesetz in Austria in 1939. It also contains a detailed analysis of the structure and layout of this normative act. The Ostmarkgesetz was extremely important because it thoroughly changed the administrative organization and introduced a new administration of the state in this area. The consequences had a significant impact on the Austrian legal order. This law is considered to be one of the main tools of the direct annexation of Austria by the Third Reich. This was the beginning of the subsequent war conquests of the Nazi state.