2. Noua procedură de executare silită a obligațiilor de „a face” stabilite pe calea contenciosului administrativ
2. The new forced execution procedure of the obligations “to do” established through contentious-administrative law

Summary/Abstract: Disciplinary offense represented by “breach of the legal provisions on incompatibilities and prohibitions concerning judges and prosecutors” and governed by art. 99 letter b) of Law no. 303/2004 on the status of judges and prosecutors, republished, not new in the field as it also existed before the changes brought by Law no. 24/2012, including the Law no. 92/1992 on judicial organization, and takes into account all the actions or inactions of the judge or prosecutor, which disregard the legal rules on incompatibilities and prohibitions. Incompatibilities and prohibitions of the magistrates can be classified into several categories. Thus, on incompatibilities, we have the incompatibility of the office of judge or prosecutor with any other public or private office, and the incompatibility of a judge or prosecutor office with the effective exercise of such offices; and, with regard to prohibitions, they can be professional; commercial; political; social, but also prohibitions concerning the exercise of other positions, or prohibitions on the dignity of the position. The legislator does not impose any condition for the existence of disciplinary offense in terms of the material element of the objective side, so that disciplinary offense is committed when violating a legal text governing incompatibilities or prohibitions applicable to magistrates. In terms of the subjective side, disciplinary offense may be committed both intentional and unintentional; the motive which led to the judge or the prosecutor acting, as well as their pursued aim do not require the existence of the subjective side, as they can be considered only when performing the individualisation of the sanction applied. In this context, we must also consider the provisions of art. 99 letter i) first case of Law no. 303/2004 also governing a disciplinary offense closely related to that subject to the analyse, namely the failure to comply with the duty to refrain when the judge or prosecutor knows that there is one of the causes provided by law for its refraining. We consider that disciplinary offense covered by art. 99 letter b) of Law no. 303/2004 is general in that it covers all the incompatibilities and prohibitions applicable to the magistrates, while the disciplinary violation regulated by art. 99 letter i) has a special character and applies only where the judge or prosecutor knows that there is one of the causes provided by law for refraining thereof and fails to make the refrain statement. The purpose of the contentious-administrative procedure is, undoubtedly, the concrete protection of the legitimate interests and rights of the claims against abuses of the public administration. As such, simply obtaining a final court order shall not represent the final stage of such a judicial approach, as the next stage shall consist of its enforcement, discretionarily or by forced execution. This study aims at examining, including from the historical perspective, the way of regulating the enforcement of the final court orders establishing obligations “to do” in charge of the defendant authority (regularly, the obligation to issue an administrative provision or to perform an administrative action), ruled by the administrative court. By choice, we are interested in the provisions of the recent Law no. 138/2014, a piece of legislation which brought certain relevant amendments not only to the Code of civil procedure, but also to the Administrative Law. In this context, the provisions of art. 24-25 of the Law no. 554/2004, regarding the imposition of penalties, penalties for delay, respectively the determination of the final compensatory damages for the non-performance of the obligation “to do” shall be in conjunction with those of the Code of civil procedure, especially art. 891 and art. 905, which describe in detail the manner in which such coercive measures and remedies may be effectively decided by the enforcement court.

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