LEGAL RELATION. SPECIAL POINT OF VIEW ON THE CITIZEN’S SUBORDINATION RELATION WITH PUBLIC AUTHORITIES

Author(s): Marta-Claudia Cliza / Language(s): English Issue: 1/2022

The scope of this study is to highlight the features of certain particular types of legal relations derived from the administrative law, namely subordination relations. The study starts from the general idea of legal relation, by analyzing its importance in building legal relations given that there would be no legal order and legal reality without legal relations. Further on, the study brings into discussion the administrative law relations, representing a category of the legal relations. Of all the types of administrative law relations, we specifically focused on the subordination relation and not just any subordination relation, but the one between public authorities and citizens. In relation to current realities that each of us experience, we consider that this subtype of administrative law relation deserves to be analyzed separately. In this way, the relation between public authorities and citizens acquires particular values, starting from the subordination of the citizen to the authority, but without the citizen being deprived of means of defense in case the authority violates his/her rights, legitimate interests or fundamental freedoms.

CONSIDERATIONS REGARDING THE SCOPE OF NOTIONS OF "EXCEPTIONAL SITUATIONS"

Author(s): Ștefan Coman / Language(s): English Issue: 1/2022

From the beginning of the existence of state entities, measures were necessary to maintain and defend them against internal and external dangers. At the beginning, these measures were taken exclusively in military terms, later taking shape also in law and evolving simultaneously with state development. This evolution has outlined other risk factors, which can threaten the existence of the rule of law or the normal development of social, economic and political life. In order to combat these dangers, which can intervene unexpectedly, and to establish the state of normalcy as quickly as possible, the power factors in the state must take energetic and immediate measures.The content of exceptional states derives from those situations that are beyond the normal state of the rule of law, situations accompanied by serious dangers that may threaten its very existence or the normal development of social, economic and political life.

Cuvinte introductive

Author(s): Călina Jugastru / Language(s): Romanian Issue: 01/2022

Pe fondului utilizării noilor tehnologii, protecția operelor protejate a cunoscut o dinamică legislativă pregnantă, în anul 2019. Adoptarea Directivei 2019/790/UE a fost transpusă în dreptul român prin Legea nr. 69/2022, ale cărei dispoziții au fost inserate în corpul Legii nr. 8/1996. Obiectul modificărilor legislative se cantonează în sfera agregatorilor de conținut online, dar reverberează în materia răspunderii furnizorilor care asigură acces internet și facilitează, astfel, partajarea nelegală de conținut online. Studiul Răspunderea furnizorilor de servicii digitale prin prisma dreptului de autor. Perspectiva jurisprudențială română (conf. dr. Adrian Circa, Facultatea de Drept, Universitatea „Lucian Blaga” din Sibiu) are în vedere, cu vaste trimiteri la jurisprudența națională și europeană, răspunderea intermediarilor și impactul noii reglementări asupra regimului răspunderii și al cauzelor justificative.

Libertatea de stabilire a societăților și transformarea transfrontalieră. Polbud

Author(s): Gina Orga-Dumitriu / Language(s): Romanian Issue: 01/2022

In the Polbud judgment, the Court of Justice of the European Union reaffirms its liberal view of protecting the freedom cealaltă establish companies in a context different from that known in the previous case-law, i.e. the cross-border transformation. In fact, one Polish company decided to transfer its registered office to Luxembourg without indicating a transfer of the central management of the Polbud business or of the place where the company's economic activity would actually take place. Following the transfer of the company's registered office to Luxembourg, without lossing its incorporation, the liquidation proceedings decided by the company were rejected by the court in charge of keeping the trade register records. By its preliminary questions, the Polish court wishes to know, inter alia, whether the freedom of establishment is oposed to a regulation of a Member State that prohibits a company established under the law of a Member State from being converted into a company subject to the legal order of another Member State. Confirming its flexible interpretations regarding the freedom of establishment, the Court finds that in this case there is an unjustified restriction on the freedom of establishment and retains that «articles 49 and 54 TFEU must be interpreted as meaning that freedom of establishment is applicable to the transfer of the registered office of a company formed in accordance with the law of one Member State to the territory of another Member State, for the purposes of its conversion, in accordance with the conditions imposed by the legislation of the other Member State, into a company incorporated under the law of the latter Member State, when there is no change in the location of the real head office of that company». At the same time, the freedom of establishment is opposed to the «legislation of a Member State which provides that the transfer of the registered office of a company incorporated under the law of one Member State to the territory of another Member State, for the purposes of its conversion into a company incorporated under the law of the latter Member State, in accordance with the conditions imposed by the legislation of that Member State, is subject to the liquidation of the first company».

Sesizarea Înaltei Curți de Casație și Justiție în vederea pronunțării unei hotărâri prealabile pentru dezlegarea unor chestiuni de drept. Admisibilitatea procedurii în faza de camera preliminară

Author(s): Vasile Vidrighin,George-Cătălin Grosu / Language(s): Romanian Issue: 01/2022

In the first part of this article we approach some introductory issues related to the referral to the High Court of Review and Justice for a preliminary ruling to settle legal issues. In the second part are presented the conditions of admissibility of the procedure established by art. 475 of the New Criminal Procedure Code. As an incidental matter, prior to the substantive assessment of the referral to the High Court of Review and Justice, the procedure must cumulatively meet the conditions of admissibility. In the third part, we focused on an existing issue at the Panel for ruling on legal matters, highlighted by the non-uniform judicial practice. The central element concerns the admissibility of the referral to the High Court of Review and Justice in the preliminary chamber stage. The non-unitary solutions were generated by the ambiguous meaning of the phrase „the settlement on the merits of the respective case”, given that the preliminary chamber stage represents only a review of the legality of the criminal prosecution phase, with no possibility to reach a judgment on the criminal or civil action of the case at this stage. In this regard, our article seeks to advance a solution to this issue through an evaluation of the judicial practice of the High Court of Review and Justice – the Panel for ruling on criminal legal matters – related to art. 475 of the New Criminal Procedure Code.

An introduction to the philosophical, political and legal thinking of modern liberal constitutionalism

Author(s): Răzvan Cosmin Roghină / Language(s): English Issue: 01/2022

The paper aims to highlight the strong theses that constitute the philosophical heritage of modern liberal constitutionalism and, at the same time, to highlight its primary coordinates. The rationale for the need to limit the state's power – through the prism of the principle by which the ruler must exercise his authority only in accordance with the in-force law accepted as just by the People – developed over several centuries, in the pre-modern West (broadly defined as between the late medieval period and the early nineteenth century). The philosophers provided the first constitutional justifications for limiting the power of the ruler: popular sovereignty and human rights. By limiting power, freedom was set to flourish. The theoretical effort mattered for posterity, for the birth of modern constitutionalism with liberal prerequisites. The paper is looking for a place in the History of Political and Constitutional Thought library.

Administrarea cheltuielilor publice. Principii și reguli bugetare

Author(s): Florina-Maria Tăvală / Language(s): Romanian Issue: 01/2022

Public institutions, no matter on the way of financing, of juridical regime or of subordination have the duty, according to the law, to respect the procedures on the four phases of budgetary execution of expenses. Here I mean the hiring, validation, authorization and payment of public expenditure. The budgetary implementation is based on the principle of separate personal attributions who have the quality of authorizing officer from the persons who have to quality of accountant. The authorizing officers of the budgets are able to hire, validate and authorize expenses during the budgetary execution but limited by the budgetary credits which were approved. The payment of public expenditure is done by the authorized persons who are generically called accountants.

Două ordalii germanice – inflexiuni ale gândirii umane

Author(s): Elena-Loredana Gogoaşe / Language(s): Romanian Issue: 01/2022

Far from setting an ambitious goal such as clarifying the origins of Germanic ordeals, this paper focuses on the relationship established between this type of legal structure and Christianity, one of the factors that shaped the physiognomy of „ordeal” or „God's judgment”. Various opinions on this subject have been expressed in the German literature, although the influence of Christianity on the evolution of ordeals cannot be overlooked. On the one hand, it has been argued that the Germanic ordeals were formed on an Indo-European basis, although, according to other points of view, they were, in fact, the result of a loan from the Orient. Since different types of ordeals did not come into being simultaneously, some being older than others, the aim of this paper is to offer a critical approach on the manner in which the Christianity shaped two of the Germanic ordeals: the Abendmahlsprobe and the geweihten Bissensprobe.

Scurte considerații privitoare la infracțiunea de rele tratamente aplicate minorului

Author(s): Mirela Gabriela Cristea / Language(s): Romanian Issue: 01/2022

The crime of ill treatments applied to underage persons is not a novelty in the national law. However, unlike the old regulation, the legislator of the Criminal Code in force has made a number of changes, such as the positioning of this crime in another chapter and the widening of the scope of the active subject. In this paper, we aim to briefly analyze the changes to this crime and the rationale behind them, as well as the extent to which the decisions of the High Court of Cassation and Justice under the old Criminal Code remain valid.

Lucian Bercea Imaginarul dreptului

Author(s): Emanuel Tăvală / Language(s): Romanian Issue: 01/2022

Review of: Lucian Bercea (editor), Imago Iuris. Imaginary of law, Western University Publishing House, Timișoara, 2022, 365 pages

Matej Avbelj, The European Union under Transnational Law. A Pluralist Appraisal, Modern Studies in European Law Series

Author(s): Radu Bogdan Bobei / Language(s): Romanian Issue: 01/2022

Review of: Matej Avbelj, The European Union under Transnational Law. A Pluralist Appraisal, Modern Studies in European Law Series, HART PUBLISHING Bloomsbury Publishing Plc, 2020, 177 pages

Прокуратурата през призмата на конституционните дебати през 1991 година

Author(s): Deyana Marcheva / Language(s): Bulgarian Issue: 2/2022

In the recent years the issue of the role and place of prosecutor’s office and the Prosecutor Gen-eral in Bulgaria comes to the fore in the jurisprudence of the Constitutional court. The article analyzes how this issue was set in the constitutional debates in 1991. The records tell us that the fundamental principle of independence of judiciary was indisputable but its structure and func-tions were left to be drawn up almost only on the level of expert committee, lacking any authen-tic political deliberation in the decision-making. Long before any arguments as to where the prosecutor’s office should be placed in the new constitutional configuration have been weighed, the Constitutional committee starts to work on the so-called project of experts, who are not members of parliament. The leading figures in the debates decided to rely on the well-known model of the preceding socialist constitutions where the court and prosecutor’s office were in-stalled in the same division of the constitution. This is one of the explanations why the place of the prosecutor’s office in the judiciary turns out to be predetermined.

Темпорално действие на решенията на Конституционния съд спрямо висящи съдебни производства

Author(s): Radoslava Yankulova / Language(s): Bulgarian Issue: 2/2022

The article focuses on the temporal effect of invalidation of unconstitutional legislation on pend-ing judicial proceedings. The significance of the topic is determined by the fact that in a state committed to the rule of law the protection of the rights and legitimate interests of citizens and legal persons is entrusted to the courts and the effect in time of the decisions on the unconstitu-tionality of a law, applicable in a pending proceeding, contributes to ensuring the supremacy of the Constitution in the field of adjudication/administration of justice. The emphasis is put on the theoretical considerations in favour of “ex tunc” invalidation of unconstitutional law with respect to pending judicial proceedings. The author analyses the case law of European constitutional ju-risdictions as well.

Критичен поглед към финансирането на политическите партии в контекста на предоставяне на помещения за осъществяване на тяхната дейност

Author(s): Iva Miteva / Language(s): Bulgarian Issue: 2/2022

The article looks into the legal framework concerning the provision of premises at the disposal of the political parties’ activity. The article analyses the conditions under which properties are pro-vided as arranged in the Political Parties Act. Several problems with the implementation of the law are identified. Finally, recommendations are made for the improvement of the legal provi-sions in the Political Parties Act.

Сравнителноконституционен преглед на статута на прокурорите в държавите членки на Европейския съюз

Author(s): Ivanka Ivanova / Language(s): Bulgarian Issue: 2/2022

The article contains a comparative review of the constitutional status of prosecutors in EU mem-ber states and identifies the main particularities of the Bulgarian model. In most of the examined countries the independence of the prosecutors is not a constitutional principle, and in some of them the prosecutor is not even a constitutional institution. Where constitutional safeguards are provided for the independence of prosecutors, they are always balanced through a clear separa-tion between the constitutional status of judges and prosecutors and by the provision of a correc-tive mechanism over prosecutors by the legislative or the executive branch of power. The Bul-garian constitution, instead of regulating the relations between the political authorities and the prosecutors, isolates them from each other, thus leaving the problem of prosecutor’s accounta-bility unsettled. In addition, by conferring a constitutional status to a wide range of topics that in the other EU member states are regulated by ordinary legislation, the Bulgarian constitution lim-its the potential for specific safeguards for the independence, accountability and the effectiveness of the prosecutors to be developed through the case law and through ordinary legislation.

Развитие на принципа на равенство в практиката на Конституционния съд на Република България

Author(s): Blagoy Deliev / Language(s): Bulgarian Issue: 2/2022

Case studies give us the best idea of the various manifestations of legal principles. The focus of this article is the jurisprudence of the Constitutional Court of the Republic of Bulgaria, related to the definition and application of the principle of equality. The courts decisions as well as some dissenting opinions of judges contain original theoretical and practical approaches in examining the nature of equality and non-discrimination. The article provides parts of court decisions so that the reader can follow the development of jurisprudence and form his own critical view be-sides the presented author's point of view.The article emphasizes on the two main manifestations of equality – equality before the law and non-discrimination. The equality effect can be fully deployed in a specific context. Therefore the study examines the main topic of the obligation of equal treatment, as well as the limitations to constitutional offices, elections, political pluralism.

За конституционното право като наука и учебна дисциплина в Юридическия факултет на Пловдивския университет "Паисий Хилендарски"

Author(s): Hristo Paunov / Language(s): Bulgarian Issue: 2/2022

Constitutional law is a leading and active branch of law and occupies a central place in the na-tional legal system of Bulgaria. The existence of constitutional law as an independent branch of law predetermines the existence of the science “Constitutional Law” and the study discipline of the same name, which is taught in law faculties. This article is dedicated to constitutional law as a science and as a discipline at the Faculty of Law of the University of Plovdiv “Paisii Hilendar-ski”.

За фундаментите на българския конституционен модел

Author(s): Borislav Tsekov / Language(s): Bulgarian Issue: 2/2022

Traditionally, in the Bulgarian constitutional law discourse, emphasis is placed on the considera-tion of basic principles of the constitution, such as separation of powers, popular sovereignty, rule of law, political pluralism, welfare state. However, from another point of view, three im-portant foundations can be highlighted to these undeniably important and structure-determining principles, which give them additional content. In the article, these foundations are designated as: national, geopolitical and equilibrium-guarantee. The national is related to the constitutional guarantees for the nation state and the Bulgarian national identity in the context of the neoliberal model of globalization. The geopolitical – with the constitutionalization of belonging to the EU as a civilizational, socio-cultural and political space. Equilibrium-guarantee – with the establishment of a parliamentary rule, combined, however, with the direct election of a head of state, repre-senting a "neutral power", which creates conditions for maintaining social balance in a socially polarized and unstable society that does not have a long-lasting democratic tradition.

Преглед на отминалите правни годишнини през 2022 година

Author(s): Blagoy Deliev / Language(s): Bulgarian Issue: 2/2022

ELEMENTI NAČELA UTVRĐIVANJA ISTINE U NORMATIVNOM OKVIRU POSTUPKA PRED MEĐUNARODNIM KRIVIČNIM SUDOM

Author(s): Aleksa Škundrić / Language(s): Serbian Issue: 3/2022

The main goal of this paper is to reveal if the principle of determination of truth, understood in its traditional, continental law manner, is accepted in the criminal procedure of the International Criminal Court (ICC) and to which extent. In order to fulfill that goal, the author analyses main phases of the proceedings before ICC and points out in each of them the rules which derive from the principle of determination of truth. Also, the author explains and polemicizes with the main theoretical approaches to this issue. Furthermore, some of the most visible normative solutions that are contrary to the principle of determination of truth are being emphasised. Guided by the results of the conducted analysis, the author measures the scope of the principle of determination of truth in the ICC criminal procedure. Therefore, it has been determinated that the influence of the said principle is at its most visible in the early stages of the proceedings (investigation and confirmation of charges), while it fades out in its later stages. Finally, it is being discussed whether it would be better to incorporate the principle of determination of truth to a larger extent in the procedure before ICC, having especially in mind a great importance and historical role that ICC has (or, better said, aspires to have).