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Kodeks postępowania administracyjnego (Kpa) przewiduje wydanie decyzji umarzającej postępowanie w sytuacji, gdy organ administracji publicznej uzna, że prowadzone postępowanie administracyjne jest bezprzedmiotowe (art. 105 Kpa). W artykule przedstawiono problematykę związaną z umorzeniem postępowania administracyjnego w wyniku jego bezprzedmiotowości przez organy pierwszej instancji oraz zakres instancyjnej kontroli rozstrzygnięć umarzających postępowanie przez organy odwoławcze. W orzecznictwie sądowo-administracyjnym utrwalił się pogląd, zgodnie z którym w sytuacji, gdy organ pierwszej instancji umorzy postępowanie administracyjne z uwagi na jego bezprzedmiotowość, to organ odwoławczy nie może uchylić tej decyzji i w tym zakresie orzec co do istoty sprawy (art. 138 § 1 pkt 2 Kpa), gdyż tak wydana decyzja naruszałaby zasadę dwu-instancyjności postępowania administracyjnego (art. 15 Kpa). Organ odwoławczy w takich sytuacjach jest zob-wiązany do wydania decyzji kasacyjnej (art. 138 f§ 2 Kpa). W artykule przedstawiono pogląd o braku możliwości wydania przez organ drugiej instancji decyzji merytorycznej w prowadzonym postępowaniu odwoławczym w sytuacji uprzedniego umorzenia postępowania przez organ pierwszej instancji, w oparciu o analizę stosownego orzecznictwa WSA i NSA.(abstrakt oryginalny)The Code of Administrative Procedure (Kpa) provides for the issuance of a decision discontinuing proceedings in a situation where a public administration body finds that the on-going administrative proceedings have become irrelevant (Article 105 of the Code). This paper presents the problems related to the discontinuation of administrative proceedings by first instance bodies. The scope of the instance control of decisions discontinuing the proceedings was also presented, including the inability of the second instance authority to issue a substantive decision in appeal proceedings in the event of a prior discontinuation of the proceedings by the first instance authority. The existing court- and administration-jurisprudence has established the view that in a situation where the first-instance authority discontinues administrative proceedings due to its irrelevance, the appeal body cannot overrule the decision and in this respect decide on the essence of the case (Article 138 § 1 point 2 of the Code), because the decision issued in this way violates the principle of two instances of administrative proceedings (Article 15 of the Code). In such cases, the appeal body is obliged to issue a cassation decision (Article 138 §2 of the Code of Administrative Proceedings).(original abstract)
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Law no. 8/1996 on copyright and related rights was recently amended and supplemented by the Law no. 15/2019. This legislative event was determined by the necessity to transpose in the Romanian legislation the provisions of the Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabledand amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society. In essence, in Law no. 8/1996, were introducedart. 351 and art. 352, which regulates the conditions under which the reproduction, communication to the public, making available to the public, broadcasting and lending of a work or other subject matter for the benefit of persons who are blind, visually impaired or otherwise print-disabled, is permitted without the consent of the rightholder of any copyright or related rightand without payment. The other amendments and additions to the Law no. 8/1996 only serve to adjust some provisions of this law to the new rules introduced by art. 351 şi art. 352. In this situation also, the Romanian legislator made a „mot a mot transposition” of the provisions of the European legislation, without being concerned about their compatibility with other internal regulations regardingthe legal protection of intellectual creation. Inevitably, such a manner of transposition generates misunderstandings between the various provisions of the Law no. 8/1996 and even between the provisions of this law and other domestic laws, which generates sources for various doctrinal and jurisprudential interpretations. This study, makes both the analysis of the new regulations and the argumentation of some de lege ferendaproposals in order to remove some controversial legal issues related to the new legal provisions.
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Between the modification of the matrimonial agreement and the modification of the matrimonial regime the equal sign cannot be put, although there is an overlap. In the following we will analyze the two institutions, focusing on some special situations that may arise in practice (modification of the marriage agreement before marriage, modification after the conclusion of marriage, modification of the agreement by a minor, invalidity of the modification agreement), but also on the differences between them, marking the conditions under which each change occurs. Thus, the modification of the matrimonial agreement before the marriage does not have the effect of modifying the matrimonial regime that has not yet been born, the moment when the matrimonial regime will begin to produce legal effects between the spouses being that of the conclusion of the marriage. After the marriage is concluded, the modification of the matrimonial agreement can be done with or without affecting the matrimonial regime since, as we will show, this is a complex legal act, which may include other legal acts between spouses or between spouses and third parties that are not related to the regime. matrimonial. In contrast, the modification of the matrimonial property regime can only be done through a matrimonial agreement, respecting all the substantive conditions, form and publicity provided by the law.
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GDPR contains a consistent inventory of data subjects' rights. Some of these rights have been previously regulated (Directive 95/46 / EC), some rights have been evoked (without being expressly enshrined), and others have acquired normative status with the entry into force of the Regulation. Under the generic „Rectification and deletion”, some of the rights of the data subject are processed. The right to rectification, the right to delete data, the right to restrict processing and the right to portability. All these prerogatives relate to the right to respect for privacy and the right to the protection of personal data (the last one, stated in the preamble to the GDPR).
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The problem of collecting, managing, transporting and disposing hazardous waste is one of the most delicate challenges faced by the member states of the European Union. That is why this paper focuses on the hazardous waste, in a complex and comprehensive approach, referring to all the steps and operations that are undertaken in the aforementioned management process. Thus, the present study addresses the theoretical aspects of waste, starting with the concept of waste and continuing with waste classification, which will encourage a better understanding of its complexity. Thereafter, we shall emphasize the most important normative acts operating in this problematic field (all based on European legislation). The second part of the paper focuses on waste management, in the sense that we will refer to the hazardous substances registration, the labeling of products containing such substances, their transportation and storing, recycling and recovery (when it proves appropriate), as well as to the treatment and disposal (or neutralization) of hazardous substances. Given the importance of these activities which have great consequences on people's health and life, in the last part of the paper we shall refer to the necessary control over the way waste management is undertaken, especially concerning hazardous waste management. Likewise, references to more recently regulated issues will be enunciated, in relation to the extensive responsibility of the producer of goods containing hazardous substances for the environment and for human beings, so as to stimulate the production of environmental friendly goods and services as an essential component of the European Union's newintelligent environmental policies.
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After the fall of the Iron Curtain, the transition of former communist countries, including Romania, from centralized political regimes to liberal democracies has been difficult. This process has been marked by a series of challenges and attempts by which the „new democracies” have attempted to adapt and adopt legislation, including of constitutional nature, in order to correspond and respond to new standards that have already been shared for decades, by the „old European democracies”. One of the most present and active” agent” in this process of transformation and adaptation was, without doubt, the European Court of Human Rights. Though twenty-eight years have passed, this demarche has not been either short, easy or ended, but on the contrary. Many of the states concerned, including Romania, had, in fact, „transplanted” into their legal system not only values and principles that were not familiar to them, but also new institutions. Moreover, it was necessary for these institutions to be integrated and operate in a coherent system which involved solving and correcting numerous inconsistencies and malfunctions.Under this general umbrella, the aim of the present paper is that to find answers to questions such as: which were the effects of the ECHR and the ECtHR case-law for the Romanian legal system, including in respect of national legislation and national case-law? Are there certain issues/areas that have caused special problems? How has the Court exercised the margin of appreciation in relation to Romania? Is the Romania satisfied with how the margin is practiced? Are there examples of national judgments where the Romanian courts have rejected to implement ECtHR judgments? Have national organs, especially national courts, contributed to the jurisprudence of the ECtHR through a ‘judicial dialogue’?
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Rehabilitation is one of the basic institutions of criminal law with penal, social and moral effects that allows the formerly convicted persons to reintegrate into society by removing the prohibitions, revocation of rights and incapacity resulting from a conviction. Through rehabilitation, the convict is re-established the civil, political and social-economic rights recognized by law for all citizens, as long as they have proven a correction of social behavior, over a period of time. The usefulness of this institution is obvious, as the incapacity, revocation and limitations of rights, which are the legal consequences of the conviction, subsist after the completion of the criminal punishment, restricting the legal capacity of the convicted persons. Rehabilitation is also a measure of criminal policy by which the state seeks to stimulate criminally convicted people to reintegrate into society, by the trust invested in them and the possibility of removing social prejudices generated by a previous criminal conviction. Rehabilitation determines the restoration of the order of law, which was initially violated by committing the offense, as a result of the termination of the criminal law conflict generated by the offense. From the legal point of view, rehabilitation removes the results of the conviction, with effects in personam and generating solely future consequences, its object being the incapacity, revocation of rights, limitation of rights and prohibitions resulting from the conviction and which are perpetual, being extra-penal consequences intended to protect certain public interests.
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In the year of 2007, Montenegro adopted a new Constitution, which in the Article 14 regulates the separation of the religious communities from the state and stipulates that they are equal and free in performing religious rites and religious affairs. Article 46 of the Constitution regulates the right to the freedom of religion, in the manner that is not completely aligned with the Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Montenegro is one of the former Yugoslav Republics, where the Law on Legal Status of Religious Communities as of 1977, from the Communist period, is still in force and it is anachronistic. There isa great struggle now to bring in force a new law on religious denominations which to be in accordance with all the standards nowadays.
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In light of the Convention on Children’s Rights adopted by the General Assembly of the United Nations in 1989 and ratified afterwards by Romania, the state is obliged to take all corresponding measures to protect the child against any form of violence, harm or abuse, during the time in which the child is found in the care of any person whom they were entrusted to, following which, in all actions undertaken, the child’s superior interest is to prevail. The desire to discover their own past, with the inclusion of the institutional history in the case of children for whom a measure of special protection and of family identity and biological relatives has been disposed, is one of the most natural need of a person who grew up without parental protection, so that it’s satisfaction is imposed without hesitation. On this note, although the state assures a legal framework able to fulfill the desire of children and youngsters to know their own personal history, the bodies which have an essential role in the domain sometimes leave space for arbitration.
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While China is eager to demonstrate its leadership in the international arena through the Belt and Road Initiative, many countries along the Belt and Road are equally eager to welcome the Chinese’s investments in infrastructure-related projects. However, the authors submit that infrastructure projects are inherently susceptible to corruption. Worse still, the problem of corruption is rather rampant in some of the Belt and Road countries. As a party to the United Nations Convention against Corruption, China is duty-bound to assume greater state accountability. Despite the Chinese government has already implemented some impressive anti-corruption measures since President Xi Jin-ping took office in 2012, the authors argue that there is still much room for improvement for China in combating corruption, so as to keep theBelt and Road „clean”.
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The article presents an important aspect of the civil law limitation period of claims, namely whether – and if so, how – the expiration of the limitation period for a claim brought before a court is taken into consideration by the court. This issue is presented in such a way as to show the relationship between the motivation which the legislator is guided by – socialpolicy considerations – and its choice of the method of taking into account the expiration of the limitation period. The reflections start with a presentation of the subject matter, followed by an indication of the arguments presented in legal literature in support of each of the two competing ways of taking into account the expiration of the limitation period, that is, ex officio or only when the person against whom the claim is due raises an objection. This is done while demonstrating the connections between views in this area and the acceptance of socialist or liberal concepts. Against this background, there are shown changes in solutions in the discussed area related to unwanted social phenomena that appeared in the practice of the use of electronic enforcement procedure provided for by the Polish Code of Civil Procedure. The author also describes the construction, which is strongly motivated by social considerations (presented in the text), introduced by the Act of 13 April 2018 amending the Civil Code, which brings significant changes in the manner of taking into account the expiration of the period of limitation of claims, with the resulting particular dualism in this area of Polish civil law. Among other things, the text discusses the flexibility of the introduced regulation (e.g. stipulating as a rule for the court to take into account the expiration of limitation of claim claimed from the consumers, but with a possibility of departing from the rule). Furthermore, the assumptions indicated in the justification for the aforementioned Act are confronted with the possibility of achieving the desired state thanks to the wording of the provisions introduced by said Act.
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In this paper, I analyse the political character of the interpretation of law and the political nature of the theory of legal interpretation from Stanley Fish’s neo-pragmatist perspective. In the first part of the text, I define the concept of politics and the political, borrowing from Chantal Mouffe. I clearly distinguish between the political, politics, and policy; this article uses the first concept (the political). In the second part of the article, I characterize hermeneutic universalism as one of the approaches to the problem of legal interpretation.In the third part, following the characteristics of the concepts of interpretive communities as defined by Stanley Fish, I draw conclusions about the political nature of the interpretation of law and the theory of the interpretation of law. In conclusion, I analyse the possibilities of building a theory of legal interpretation that internalises the inherently political character of knowledge by analyzing the concept of post-analytical philosophy proposed in literature by Andrzej Bator.
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The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.
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