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Business law course

Business law course

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Published by Animalus Maximus
chapter 1-9
chapter 1-9

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Published by: Animalus Maximus on Feb 15, 2014
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Business Law_course 0_Introduction
 OCT - 12 - 2013 C.Stoica, Dreptul afacerilor
Contracte, Editura ASE, Bucureşti, 2012;
S.Cărpenaru, Tratat de drept comercial român, Ed. Universul Juridic, Bucureşti, 2013;
 R. Dimitriu, Romanian Industrial Relations Law, Ed. Intesentia, 2007;
S.Angheni, M.Volonciu, C.Stoica, Drept comercial (curs universitar), Ed. CH Beck, Bucureşti, 2008;
C. Lefter, R. Dimitriu, O. Maican, Civil Law, Ed. Economica, Bucureşti, 2000;
 F.Baias, E.Chelaru, R.Constantinovici, I.Macovei (coord.), Noul cod civil. Comentarii pe articole, Ed. CH
Beck, Bucureşti, 2012
Business law_course 1_Legal Rule
 OCT - 13 - 2013 LEGAL RULE THE STRUCTURE OF A LEGAL RULE Each legal rule has an internal structure named the formal-logical structure and an external structure called the technical-juridical structure. The formal-logical structure of a legal rule This structure shows the internal parts of a legal rule and their aims. Thus, any legal rule, usually, has three parts or elements of structure, as follows: a) the hypothesis. It is the part of a legal rule that describes the circumstances when a certain behavior is requested. The hypothesis can be determined
 when the circumstances are very detailed or indefinite
 when the circumstances are generally provided. b) the provision or command. The command is the substance, the core of the legal rule. It prescribes what the person, the subject of law shall do under the circumstances provided for by the hypothesis. Taking into account how precise the behavior provided for by legal rule is, the command might be absolutely determined or relatively determined. The command is absolutely determined, for example, when legal rule refers to an action or to a non-
action, such as: “the merchants should be incorporated”, “the seller is obliged to warrant the buyer”, “the judge is forbidden to”
 The command is relatively determined when legal rule allows the subject of the law to choose his own
behavior, such as: “the owner may take any
appropriate decisions”.
 c) the sanction
 It is a part of a legal rule that specifies whose are the consequences in case of the non-
observance of the rule’s command.
 It means that this part of the internal structure of a legal rule specifies the penalties the judge can take
against those who do not comply with the rule’s command. According to the determination rank the
penalty can be: - absolutely determined
 in this case the judge cannot modify it. For example the nullity of a contract; - relatively determined
 in this case, law provides for a minimum and a maximum limit of the penalty and the judge might choose the concrete penalty in accordance with the gravity degree of the fact, the
perpetrator and his relapse into crime status. E.g. “the fine is from 100.000 up to 5.000.000 lei”, “the penalty is prison from 2 up to 5 years”;
 - alternative penalties
 in this case the judge might choose between 2 penalties, such as prison or criminal fine; - cumulated penalties
 in this case law provides for two or many penalties for a specific crime, such as prison and withdrawal of rights (e.g. loss of parental authority or loss of associate right).
It should be mentioned that it is not necessary for a legal rule’ to have in the same article of law all these
three parts together. Frequently, the hypothesis or the sanction of a legal rule can be included in another normative act, or in another article, but the legal rule cannot ever be deprived of its command. The technical-legal structure of a legal rule Legal rules are usually included into normative acts, the so-called laws, governmental decisions, ministry orders, and so on. Any normative act is divided into paragraphs, articles, sections, chapters, titles, parts or books. The main element of this structure is the article. As it was mentioned above, it is not necessary that all the three elements of structure of a legal rule belong to the same article. More frequently an article can include many legal rules or a legal rule may be included in many articles.
 Due to the fact that a lot of legal rules apply within a specific moment in time and in a particular state, it is important to find out which are the main features of each category of legal provisions. Thus, different criteria are used to classify the legal rules, as follows: A) According to the object under settlement, there are as many legal rules as branches of law are. Thus, there are constitutional legal rules, administrative legal rules, civil legal rules, labor legal rules, etc. B) According to their juridical force, the legal rules form a hierarchic system similar to the hierarchy of
the state bodies which adopt them. Thus, in the top of this hierarchy there lie the state Constitution and other fundamental laws, further, there are ordinary laws and decrees and then decisions and
government orders, and finally ministry’s orders and instructions.
 This hierarchy has a great importance when there are, and usually this is the case, many legal rules adopted by different state bodies for the same field of social behavior. In this case, a well-known principle is used to solve any possible confusion: the legal rules endorsed by the superior state body have priority to apply. C) According to
the behavior’s character requested, the legal rules can be classified as imperative rules
and disposal rules. 1) The imperative rules are those which require a specific action (imposed rules) and those which forbid a specific action (prohibitive rules). We emphasize that it is not possible to depart from imperative legal provisions and law forbids any contrary agreements as well as any restrictive interpretation. a) The imposed rules are those which expressly provide for the obligation to do something, e.g.
“the seller has two main obligations, to deliver the goods and to be responsible for it”
b) The prohibitive rules are those which forbid a specific action, e.g. “the judge is forbidden to pass
general provisions through his rulings. 2) The disposal rules are those which allow the subjects of law to choose their behavior. These rules can be : a) permissive rules which allow the subjects of law to choose from the options provided for that one
which fits better to their interest, e.g. “the landowner may build
 or till on his land anything he wants to. b) suppletive rules which allow the subjects of law to choose their behavior and if they do not, the
provision of law applies, e.g. “the agreements legally concluded have the force of law between the
contracting p
 D) According to the extend of their application, legal rules are general rules, special rules or exception rules. 1) The general rules apply either within the entire system of law or within one of its branch, as being the greatest comprehensive rules; 2) The special rules have a limited sphere of application, according to the specific criterion or the qualities of people. It should be noted that there is a close connection between general and special
rules. Thus, sometimes a rule can be called “general” rule as compared to a second rule, or “special” rule
as compared to a third one. This classification appears to be very important when two legal rules have equal vocation to apply. In this case, always the special rule has priority to apply. 3) The exception rules allow the subject of law or the judge to depart from a general or a special rule and thus their interpretation and application is very strict.

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