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Peculiarities and Controversies Regarding the Credit (Financing) Agreement

Author(s): Valeria Gheorghiu / Language(s): English Publication Year: 0

From the perspective of business law, the concept of "credit" has the following three valences, namely: the claim (amount of money/cash benefits), the payment term and the creditor's confidence in the debtor that the latter will honor its payment obligation when due. Thus, the financial-banking products existing on the market have a rather varied and complex content and structure. In order to satisfy the interests and needs of both categories of subjects, the legislator has established a series of rules, as protective measures, for each category. This type of credit/financing is used, both in social, selling, common law relations, as well as in legal business relationships, between professional traders. The present study aims to capture an analysis of the particularities of the credit agreement from the perspective of the two categories, consumers and professionals, as well as of the existing regulatory framework. For these reasons, we will discuss the primary legislation, as well as the secondary legislation, applicable in this field.

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International Law: The Lost Metaphor? Reflections on the Current Wars

Author(s): Paulo de Brito / Language(s): English Publication Year: 0

The wars currently ravaging our planet lead us to question the normative character of international law with its corresponding imperativeness. Are we facing the decay of international law, as Anthony Carty2 wrote in the last century? Has the metaphor been lost? Is there still any hope for tomorrow? We will analyse the current war situation to question the imperative normativity of international law. On this subject, Martti Koskenniemi3 wrote "From Apology to Utopia" and later "The Gentle Civilizer of Nations": has international law lost this character? The answer will remain open, and this essay will be a speculative treatment of the subject.

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The Operator in the Environmental Liability. The European Union and Portuguese Regime

Author(s): Cristina Aragão Seia / Language(s): English Publication Year: 0

The concept of operator and occupational activity are essential for determining the application of the environmental liability regime. The aim of this paper is to critically analyse those concepts as they are used in European Union legislation (Directive 2004/35/EC) and in Portuguese legislation (Decree-Law 147/2008) as well as the subjective scope of application of these diplomas, referring to options made by the legal systems of other Member States and the case law of the CJEU. In the end, we present some considerations that should enable greater and better application of the legal regime of environmental liability.

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The Protection of Ukrainian Migrants in Portugal, from the International and European Regime to Portuguese Law

Author(s): Fátima Castro Moreira,Barbara Magalhães / Language(s): English Publication Year: 0

The war in Ukraine caused a major humanitarian crisis, leading thousands of civilians to leave the country and seek refuge in third countries. In this perspective, rather than being migrants, the people fleeing this war shall be considered as refugees in accordance with the 1951 Refugee Convention and its 1967 Protocol. Council Directive 2001/55, of July 2001 created a special procedure to deal with a “mass influx” of people in need of international protection. Due to the war in Ukraine, this Directive was triggered by EU Council Decision 2022/382 of 4 March 2022. In this sequence, in response to the need for assistance to and protection of refugees, Portugal presented a plan for their reception, having established a legal regime delimiting criteria for their protection, as well as the scope of temporary protection to be granted under the decree-law 24- B/2022. We propose to analyse the protection regime granted, considering the criteria defined by Public International Law and European Union Law, to assess the convenience, opportunity and sufficiency of the measures implemented before proposing solutions consistent with the humanitarian crisis-situation experienced in Europe, and the reception and integration of these migrants.

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Invalidity of Treaties, as a Legal Sanction Specific to Public International Law

Author(s): Adrian Corobana / Language(s): English Publication Year: 0

While in domestic law, the sanction of invalidity is often encountered in practice in both substantive and procedural law, the same cannot be said of the sanction of invalidity in public international law. This paper aims to analyse this legal institution of public international law by identifying the main grounds for invalidity of treaties. Using the research methods of law in general and public international law in particular, by researching its sources, identifying the customs and practice of States in this area, the paper aims to demonstrate that the invalidity of international treaties is a legal sanction specific to public international law. The paper contributes to the creation of a general theory of legal sanction in public international law.

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Constitutional Aspect through the Prism of International Principles

Author(s): Olga Tatar,Alexandr Sosna / Language(s): English Publication Year: 0

I would like to note that, in contrast to substantive legal norms, which establish the content of the rights and obligations of individuals and legal entities of private international law and at the same time regulate their behavior, the conflict of law norm determines the law of which state can be applied to a given relationship. A very significant difference between the conflict of laws rule and a number of subsequent regulations is the overcoming of the conflict of laws problem by determining the applicable law. In the case when we are talking about the connection of a private law relationship with the legal order of several states, the question arises: by the law of whose state is it possible to resolve this issue. The likelihood of national authorities applying foreign law is the main difficulty of private law. The application of foreign law is possible due to the provisions of national legislation, as well as an international treaty.

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The Controversies of Israel Judiciary Reform

Author(s): Ovidiu Horia Maican / Language(s): English Publication Year: 0

In the last months, Israel faced with a very contested and divisive draft bill from the behalf of the government, putting into discussion the relation the three powers in the state. The draft bill in the parliament is aimed at limiting Supreme Court oversight of government policy has deepened social divisions and raised concerns about a possible democratic comeback. The Knesset passed a law that overturns the "principle of common sense" used by Israel's Supreme Court to evaluate government policies. This is especially the case in Australia, Canada and the UK. Judges decide whether a particular public policy is reasonable and sound. Because Israel is a parliamentary system, the proposed reforms, including weakening judicial oversight and changing the way judges are appointed, would shake the balance of power between Israel's government agencies. Opponents argue, future changes will destabilize Israeli democracy. Supporters of the reform argue the opposite, arguing that the judiciary has become an unaccountable government agency that usurps policy-making power from the Knesset and the government.

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Legal Responsibility in the Operating Room in the Particular Case of Retained Surgical Foreign Bodies

Author(s): Raluca Laura Dornean Păunescu / Language(s): English Publication Year: 0

The study presents an analysis of legal liability in the operating room, in the hypothesis of a retained surgical foreign bodies, as well as the interpretation of the procedure for completing the checklist of surgical procedures, imposed by Order no. 1,529 of December 13, 2013 issued by the Romanian Ministry of Health. Ab initio, there are exposed the legal status of civil liability in medical activity, the definitions of medical personnel and the notion of malpractice, as well as aspects related to the prescription of the right of action and the competent court in such cases. In corollary, jurisprudential elements related to the medico-legal expertise and the relevant conclusions of such evidence administered in the civil process are highlighted.

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Quality and Interest to Address the Romanian National Council for the Settlement of Complaints in the Field of Public Procurement in Judicial Practice

Author(s): Anamaria Groza / Language(s): English Publication Year: 0

Any person who considers to be harmed in its rights or legitimate interests through an act of a contracting authority or through an unsolved demand in the legal term can ask the annulment of the act, the coercion of the contracting authority to emit an act or to adopt a remedy measure, to acknowledge the pretended right or the legitimate interest through administrative-judicial review or through judicial review, according to Law no. 101/2016. The person considered affected is any economic operator which fulfils in the same time the next conditions: "has or had an interest in relation to a procurement procedure" and "suffered, suffers or risk suffering a prejudice as a consequence of an act delivered by the contracting authority, able to generate judicial effects or as a consequence of an unsolved demand in the legal term concerning a procurement procedure". The aim of the article is to underline the fact that it is not necessary for the economic agent to have submitted an offer in the procedure; in order to justify its quality and interest to contest acts or operations of the contracting authority pretended to be harmful.

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Double-Edged Sword of Lapse of Arbitral Award as a Ground for Annulment

Author(s): Sofia Cozac / Language(s): English Publication Year: 0

Raising the exception of the lapse of the arbitral award (caducitate) in the arbitration proceedings has certain implications and effects. What expectations we should have when invoking the lapse of the arbitral award within the arbitration proceedings and how this can be successfully invoked in a claim to set aside an arbitral award, will be considered in the following article. Furthermore, the analysis of the relevant case law on the subject matter will help us understand this institution and to use it properly.

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The Compensation Mechanism of Expropriated Pursuant to the Law No. 255/2010. Vulnerabilities and Possible Solutions

Author(s): Ioan Paraschiv / Language(s): English Publication Year: 0

The objective of the study is to analyse the compensation mechanism for the persons affected by the expropriation procedure necessary to achieve the objectives of national interest, according to Law no. 255/2010, highlighting its deficiencies and possible legal remedial solutions. The analysis carried out was based on the deductive method and essentially reveals the fact that in order to respect and strengthen the constitutionally regulated pillars of the compensation mechanism within the expropriation procedure regulated by Law no. 255/2010, respectively of the "just" and "preemptive" character of the compensation of the affected persons, a legislative reform in the field of expropriation is necessary to provide the expropriators with the modern legal instruments, necessary for the fair establishment of compensation even from the administrative phase of the expropriation procedure, with the consequence of increasing confidence in the state institutions that act as expropriators or representatives of the expropriator, relieving the state budget of additional expenses and the courts of disputes that can be prevented.

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Where Next, Local Self-Governments?

Author(s): Adam Varga / Language(s): English Publication Year: 0

Local self-governments are faced with many challenges in the 21st century. Efficiency plays an increasingly important role in the functioning of public administrations everywhere, and one of the main tasks of public authorities is to provide a good service to citizens. Local communities also expect local self-government to carry out its tasks well. But local self-governance is not just about getting local tasks right; it also necessarily involves making local rules. And all this is carried out by democratically elected bodies. In this paper, I will examine the principles on which we need to look at local selfgovernment if we are to find a place for it in 21st century democracy. I will seek answers to this question primarily by analysing and comparing different terms. In my view, the essence of local self-government cannot be sought in its decentralised nature alone, nor can it be treated as a purely efficiency issue. Local self-governments are also autonomous bodies which, in the principle of subsidiarity, also claim the right to carry out tasks that genuinely serve the local community.

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Controversies Regarding the Withdrawal of the Right of Use over the Land Assigned on the Basis of Law No. 15/2003 Regarding the Support Given to Young People for the Construction of a Personal Property

Author(s): Raluca Laura Păunescu Dornean / Language(s): English Publication Year: 0

The main objective of the pending study is to highlight the legal controversies in the situation of the withdrawal of the right of use over the land that was assigned to the beneficiary based on Law no. 15/2003 regarding the support given to young people for the construction of a personal property. Specifically, the author investigates the possibility of establishing the suspension of the one-year term within the mixed resolutive condition stipulated in both art. 6 para. 1 of Law no. 15/2003 which imposes on the beneficiary of the land the obligation to start the construction of the house within one year from the date of allotment of the land and to carry it out in compliance with the provisions of Law no. 50/1991 regarding the authorization of the execution of construction works, republished, with subsequent amendments and additions, as well as in the clauses of the award contract for free use. In the same sense, the fulfillment of the negative condition will be analyzed - as a modality of the civil legal act, namely the fact that the non-start of the construction within the one-year period may be due to the public authority, which, in bad faith, determined the non-realization of the event, by delaying the adoption of the decision of the local council regarding the Urban Planning Regulations, the blocking of the issuance of urban planning certificates/building authorizations and implicitly the impossibility of the beneficiaries to start construction in compliance with the legal provisions. The research methods to achieve the proposed objectives are varied, taking into account the comparative method, as interdisciplinary aspects between administrative law and civil law are exposed, the logical method, which tends to outline a more rigorous legislative exposition, the critical method, with the aim of presenting the limits of discretionary power, as well as the systemic method, which tends to the possibility of bringing scientific research a cardinal importance. The results and implications of the study will be major from the perspective of the application of the law and the interpretation of the legal provisions, taking into account the legal nature of the right to use a land assigned on the basis of the special law.

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The Latest Legislative Changes of the Administrative Litigation Law No. 554 of 2004

Author(s): Adriana Deac / Language(s): English Publication Year: 0

Recently, the Administrative Litigation Law no. 554 of 2004 was amended successively, in a very short period of time. This unusual fact caught my attention and led me to scientifically analyze these legislative changes. It is very true that the entire normative act was not amended, but only certain articles regarding the procedure for resolving administrative law disputes, namely the suspension of the execution of the disputed administrative act, the forced execution of final court decisions and the regressive action granted to the public institution against the official or dignitary who improperly issued, late or did not issue the administrative act in dispute. It is obvious that the changes made to the law were imposed by the practical demands of resolving administrative law disputes. The scientific approach aims to analyze the specific changes made to the Administrative Litigation Law no. 554 of 2004, to criticize them, identifying the positive and negative aspects, if any. Also, considering that jurisprudence was the one that imposed these changes, I will try to identify some court decisions relevant to this scientific approach.

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The Impact of Rulings Relating to Questions of Law on Administrative Acts

Author(s): Anamaria Groza / Language(s): English Publication Year: 0

To say of law that it is an evolving system is already a truism. The values of society change, and legal rules sooner or later align with the new directions of social development. Legal institutions interact and produce unexpected consequences at the time of their regulation. Such consequences affect the normative pyramid more or less widely, in relation to the level at which the transforming legal event took place. The normative pyramid is readjusting, and the validity of certain normative acts must be reassessed. Such an effect can be produced by the preliminary rulings on questions of law, pronounced by the High Court of Cassation and Justice. The following article presents an analysis of the validity of some normative administrative acts in the context of Decision no. 65/26.10.2020, pronounced by the HCCJ – The Panel for preliminary ruling on questions of law. Our research is descriptive and explanatory, and contains relevant case law. The purpose of the article is to analyze the solutions in case of a conflict between a preliminary ruling and an administrative act. The caducity of the administrative act can be one of them and it is especially entailed by the moment from which the preliminary rulings become binding erga-omnes.

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Considerations Regarding the Appeal to the Administrative Court of the Individual Performance Appraisal Report of Civil Servants

Author(s): Eugenia Iovănaş / Language(s): English Publication Year: 0

Performance indicators are established to assess the degree to which individual civil servants have achieved their objectives. The setting of individual objectives and performance indicators must be linked to the tasks and objectives of the institution in which the civil servant works. The process of evaluating the individual performance of civil servants shall establish the training requirements for civil servants. The objectives set out in paragraph 1 shall be set out in the following way (1) shall be established in accordance with the duties of the job description, by reference to the public office held, its professional grade, the theoretical and practical knowledge and skills necessary for the performance of the public office held by the civil servant, and shall correspond to the objectives of the department in which the civil servant works. The performance indicators referred to in paragraph 1 shall be those set out in Annex I. (1) shall be established for each individual objective, in accordance with the level of the public office holder's duties, by reference to the requirements of the quantity and quality of the work performed. In all cases, the individual objectives and performance indicators shall be made known to the public servant at the beginning of the period under evaluation. In this article, we propose to discuss relevant aspects of the analysis of the annual individual performance appraisal report of civil servants, by analysing the two methodologies for the annual performance appraisal of civil servants, as described above, with reference to the relevant judicial practice.

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The Administrative Court System and Its Impact on Albanian Private Entities

Author(s): Linert Lirëza / Language(s): English Publication Year: 0

The establishment of Administrative Courts in Albania is an important step done in the justice system. The law on administrative courts approved by the Assembly was expected to strengthen the justice system of the country, improve access to justice for citizens and businesses, and facilitate faster procedural actions and trials. Administrative Courts decisions have a direct influence in creating an appropriate climate between public administration and private entities and solving with efficiency the disputes between them. This reform was considered as necessity with the sole purpose of creating a more peaceful climate for the progress of the reports between Public Administration and Private Entities. The purpose of this paper is to investigate the impact of administrative court on Albanian private entities. The Law on Administrative Courts has defined and directed the limits of judicial control over the legality of administrative actions towards three aspects: facts, time and discretionary power. The paper analyzes the activity of the Administrative Court and innovations of this law. Judicial control constitutes the strongest guarantee for individuals in their dealings with the administration in particular and with any public powers in general that their rights will be upheld. At the end, the paper presents the findings produced by survey data collected.

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Authority of Res Judicata of the Decision of the Administrative Court before the Criminal Court

Author(s): Costel Cristinel Ghigheci,Vlad Mihai Neagoe / Language(s): English Publication Year: 0

A long-standing issue discussed in judicial practice is that of the effects that a final judgment of an administrative court should have when it has decided a question of fact or law that would be relevant to the existence of an offence that is the subject of a criminal case. The restriction before the criminal court of the authority of res judicata of a judgment of the civil court relating to a preliminary issue in criminal proceedings – in view of valid, substantial and compelling reasons, such as the lack of identity of the parties (including the prosecutor), the differences between the two actions, the distinction between the legal interests protected and the application of the principle that fraud corrupts everything (fraus omnia corrumpit) – is without prejudice to the principle of legal certainty as the basis of res judicata. From an objective point of view, the criminal court, which has the benefit of specific procedural means and special procedural safeguards, would have the power to overturn the civil court’s ruling in order to restore legality and not to abolish the legal relationships established on the basis of the civil judgment. From a subjective point of view, the person concerned would have no legitimate expectation of opposing in criminal proceedings the right he had won before the civil court, since the fundamental differences between criminal proceedings and civil proceedings are well known.

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Control over the Administration in Kosovo

Author(s): Artan Maloku / Language(s): English Publication Year: 0

The administration has a very important role in the functioning of the state, in addition to the special role it has, it must act according to the laws and rules that define the work of the administration. Therefore, in the administration we need supervision or control of the administration. The purpose of this paper is the research related to the notions of the activity of the institutions and the presentation of some acts which have been subjected to the control in the procedure. As for the methodology, we will treat the manuscript according to the historical, analytical, comparative scientific method. In the first part of this paper, we will get to know the role and importance of control in the administration's operation. Further, the paper will deal with the structure of the control elements, explaining what are the subjects, the object and the authorizations of the control which are developed by the concrete institutions where the basis for them is the exercise of control and the operation of legality.

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A Few Comments on FinTech in the Light of Cyber Security

Author(s): Tereza Jonáková / Language(s): English Publication Year: 0

The following paper examines the current opportunities for ensuring the security of cyberspace and financial technologies in relation to the institutional and legislative environment from the perspective of the European Union. The rapid growth in the field of financial technologies brings with it not only pros and benefits, but also cons and security threats, both on an individual and on a complex systemic level. The use of financial technology tools themselves thus poses not only the necessary co-responsibility of the target entities when using them, but also comprehensive reflections on, institutional security and national and supranational legal regulation of the so-called digital economy.

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