Kontrola finansów publicznych w prawie francuskim. Wybrane aspekty instytucjonalne

Author(s): Michał Mariański / Language(s): Polish Issue: 2/2023

This publication is a part of a study of the French Code des juridictions financières in the field of the institutional aspects of the control of public finances. The main purpose is not only to describe the specificity of the French legal system in this field but also to focus on the solutions and type of support institutions that were developed by the French legislator. The general control exercised by the Court of Auditors (Cour des comptes) and regional and territorial audit chambers (Chambres régionales et territoriales des comptes) can be more effective thanks to the so-called supporting institutions, such as the Court for Budgetary and Financial Discipline (Cour de discipline budgétaire et financière), the Supreme Council of Public Finance (Haut Conseil des finances publiques), or the Tribunal for Compulsory Contributions (Conseil des prélèvements obligatoires). This study and analysis of the provisions of the Code des juridictions financières related to the three above-mentioned supporting institutions may also be considered as the first step towards further in-depth analysis and research, and thus the possible application of structures and solutions that are present in French tax law by the Polish legislator or that of any other European country.

Niepołączalność (i niewybieralność) funkcji sędziego i prokuratora z mandatem parlamentarnym w Polsce

Author(s): Joanna Juchniewicz / Language(s): Polish Issue: 69/2023

The principle of incompatibility, as expressed in Article 103 of the Basic Law, constitutes one of the key guarantees for the exercise of the parliamentary mandate. By indicating the functions that cannot be exercised in tandem with the mandate of a deputy or senator, the legislator aims to achieve, inter alia, such objectives as: fulfilment of the principle of separation of powers, counteracting conflicts of interest and corruption phenomena, ensuring transparency of decisions taken and ensuring impartiality and independence in the exercise of office. Judges and prosecutors, which also includes retired judges and prosecutors, may not hold parliamentary office. Consequently, electing them as MPs or senators requires them to relinquish their office as judges or prosecutors, and the consequence of not relinquishing their office is the termination of their mandate.

Избирателната дееспособност на хората с интелектуални увреждания и психично-здравни проблеми в контекста на практиката на Европейския съд по правата на човека

Author(s): Radoslava Yankulova / Language(s): Bulgarian Issue: 2/2023

The judgment of the European Court of Human Rights in the case Anatoliy Marinov v. Bulgaria (No. 26081/17) rendered on 15 February 2022 contains an imperative for the State to amend its legislation in such a way as to allow for an individual judicial assessment of the ability of persons placed under judicial disability to take informed and considered decisions and to participate in voting. In this international context which is new for the State, the article presents the advantages and disadvantages of an approach of restricted political participation in which the exercise of voting rights by persons with mental and intellectual disabilities is premised on an individual assessment of their ability to cast a competent vote.

Online court as a platform for small claims proceedings in terms of the right to a fair trial in civil procedure

Author(s): T.A. Tsuvina / Language(s): English Issue: 54/2023

The article is devoted to analyzing the online courts as a platform for small claims proceedings in civil cases. The author describes the concept of “e-justice”, which involves e-filing, electronic systems of assignment of cases, e-case-management, eDiscovery, ODR, electronic systems for court practice, and using Artificial Intelligence (AI) in civil proceedings. The article describes two main approaches to the ODR concept – narrow and broad. In terms of the broad approach the author describes different types of online courts for small claims, particularly Online Civil Resolution Tribunal (British Columbia, Canada), Online Solutions Court (Great Britain), etc. The author analyzes current innovations in the structure of online courts, connected with integrating information systems and online ADR into online court platforms. Special attention is paid to the guaranties of the right to a fair trial in online courts.

SINTEZE DIN JURISPRUDENŢA CJUE - DREPT FISCAL

Author(s): Lucian Gherman / Language(s): Romanian Issue: 3/2022

1.) Trimitere preliminară – Fiscalitate – Taxa pe valoarea adăugată (TVA) – Directiva 2006/112/CE – Articolul 41 – Achiziție intracomunitară de bunuri – Loc – Lanț de operațiuni succesive – Calificare eronată a unei părți a operațiunilor – Principiile proporționalității și neutralității fiscale. HOTĂRÂREA din 7 iulie 2022 în cauza C- 696/20 (ECLI:EU:C:2022:528), în procedura.

SINTEZE DIN JURISPRUDENŢA CJUE - DREPT FISCAL

Author(s): Lucian Gherman / Language(s): Romanian Issue: 4/2022

The text present some Court of Justice of European Union decision on preliminary ruling requests related to VAT.

JURISPRUDENŢA INSTANTELOR ROMANE ÎN UNELE CAUZE ÎN CARE AU SESIZAT CJUE CU ÎNTREBĂRI PRELIMINARE (Cauzele C-707/18, C-716/18 şi C-835/18)

Author(s): Irina Nicoleta Elisabeta Cioponea / Language(s): Romanian Issue: 4/2022

Referral to the CJEU for the pronouncement of preliminary rulings regarding the interpretation of European Union law cannot have a purely theoretical purpose (e.g. the Court Ordinance of October 7, 2013in case C-82/13) but a necessarily practical one, such as to allow the national court to resolve the specific dispute with which it is vested. Therefore, knowledge of the judicial decisions pronounced by the national courts after receiving the answer to the preliminary question from the CJEU is very important to evaluate the implications of the CJEU jurisprudence in the law of the member states and the effectiveness of the dialogue between it and the national courts. Next, the decisions of the courts in Romania are presented in some cases in which the CJEU was referred with preliminary questions, respectively those that were resolved in the cases registered on its roll with no.C-707/18, C-716/18 and C-835/18.

Czy prawu potrzebny jest heros? Reinterpretacja sędziego- -Herkulesa w świetle myśli starożytnej

Author(s): Anna Ceglarska / Language(s): Polish Issue: 41 (5)/2022

In his work “Law’s Empire”, Ronald Dworkin made the famous comparison that the judge should be like the mythical Hercules. In the modern interpretation, we most often follow the path mapped out by Rawls and Habermas, understanding the judge-Hercules as someone undertaking a heroic effort to discover the only right and true solution to the case. These considerations, however, very often overlook an extremely important aspect. Namely, the attempt to understand and interpret the figure of Hercules, and more broadly – heroes. This article aims at reinterpreting the character of the hero – and thus the judge – by returning to the ancient pattern. By returning to the roots and the ancient way of understanding the hero, it is also possible to better understand contemporary disputes, especially those related to judicial activism and differences in its assessment, as well as to develop a new model of a judge who is neither a hero nor the “mouth of the law”. Within the text, both, the ancient concept of the hero and the figure of Hercules, as the embodiment of a certain archetypal pattern, are analysed. On this basis, the possessed and desired competences of both the hero and the lawyer are also examined. This leads to a different interpretation of the judge-hero. The hero, like the judge, is not to remain outside or above the community but within it. In the relational nature of a judgment, directly related to the concept of prudence and practical thinking, the judge issues a judgment but this judgment is a subject to evaluate, just as the actions of a hero are evaluated by the community which, at the same time, prove his extraordinary role in the process of development, including making and interpreting the law. Thus, the modern judge-Hercules should not be a super-lawyer, an unattainable ideal who loses contact with the rest of society but a hero in the very Greek sense of the word. That means, a real model, having completely human experiences, knowledge and the ability to draw conclusions, teaching his fellow citizens to think and make decisions, while taking into account the needs of the community.

Dylematy wokół prawa do sądu, pod red. J. Ciapały, R. Piszki, A. Pyrzyńskiej, Wydawnictwo C.H. Beck, Warszawa 2022

Author(s): Katarzyna Jachimowicz / Language(s): Polish Issue: 44 (3)/2023

REHABILITACIJA LAZARA MARKOVIĆA

Author(s): Jovica Trkulja / Language(s): Serbian Issue: 1-2/2023

U godinama nakon oslobođenja zemlje 1944-1945. u Srbiji i Jugoslaviji na delu je bila izuzetna represivnost komunističkog režima koji je beskompromisno učvršćivao svoju moć. Kao i u svim zemljama u koji¬ma su komunisti došli na vlast („narodne demokratije"), i ovde je izvršen obračun sa tzv. neprijateljima naroda i pripadnicima opozicije. Jedan od glavnih metoda tog obračuna i oblika pritisaka na opoziciju bilo je fabri- kovanje državnih neprijatelja i njihova upotreba za propagandu u cilju jačanja unutrašnje kohezije i učvršćivanja vlasti. Organi nove vlasti su odmah započeli sa proganjanjem „reakcionara" i buržuja, a u novinama i po ulicama pojavili su se spiskovi streljanih „narodnih neprijatelja" među kojima je bilo istaknutih intelektualaca, industrijalaca, glumaca i drugih umetnika. U zemlji, koja se tek oslobađala okupatora, počelo je rigorozno uvođenje diktature po sovjetskom uzoru.

REŠENJE O REHABILITACIJI DR LAZARA MARKOVIĆA

Author(s): Jovica Trkulja / Language(s): Serbian Issue: 1-2/2023

VISI SUD U BEOGRADU, u veću sastavljenom od sudija Marine Klane- Živković, predsednika veća, Božidara Vasića i Danka Lauševića, članova veća, sa zapisničarkom Livada Ljiljanom, u pravnoj stvari podnosioca zahteva Vuka Markovića iz Novog Sada, ulica Bace Stajića br. 19, Milene Marković iz Beograda, ulica Šumatovačka br. 21, i Nenada Vukasovića iz Beograda, ulica Križanićeva br. 26, u predmetu rehabilitacije pokojnog dr. Lazara Markovića, bivšeg iz Beograda, doneo je dana 18.05.2012. godine sledeće

Retribuční soudnictví 1948 – počátek třídní justice?

Author(s): Lucie Chrobáková / Language(s): Czech Issue: 2/2016

After the February 1948 coup, the Communist Party of Czechoslovakia renewed the force of the retribution decree and established extraordinary people’s courts to punish the “real” culprits. From April to December 1948, 3 287 persons were sentenced in subsequent trials in Czechoslovakia, in Bohemian lands alone 2 384 persons. Some important representatives of Nazi security forces were among them, yet, the second retributive justice became one of instruments to take total control over the society. It was put into motion by organs of criminal justice that were purged of unwanted persons after February 1948. From those who stayed in their positions, some opposed the efforts to breach the legal framework of criminal justice, others seized the career opportunity. The very choice of accused already manifested the symptoms of class justice – the prosecutors were repeatedly encouraged not to indict socially weak citizens. The research shows that some Action Committees of National Front and party organisations manifested little interest in the second wave of retributive justice. Manipulated cases with calculated and inconsistent investigation and criminal proceedings can be observed especially in Prague and in regions that did not count to bastions of Communist power. The second wave of retribution justice started to serve as a power instrument from autumn 1948 and contributed to power consolidation of the totalitarian regime.

Ladislav Lorek: kariéra generálního prokurátora

Author(s): Adam Zítek / Language(s): Czech Issue: 2/2016

The paper deals with the professional career of Ladislav Lorek, the Czechoslovak Prosecutor General in 1947–1951. His work in justice administration dates back to Austria-Hungary. During the period of the First Republic he appeared as the State Prosecutor in many important trials, some of them being against Communist activists. After World War II, he, paradoxically, joined the Czechoslovak Communist Party and struggled to obtain the post of the Prosecutor General, succeeding in 1947. At the end of his career, he became one of primary architects of Communist justice system. In 1951, he was removed from his office and pensioned off. Lorek’s career reflects changes that the justice administration went through during his life. The paper is, therefore, not only description of Lorek’s career, but also a case study on the history of judiciary, especially on the Office of Prosecutor General. It also documents efforts of the Communist Party to seize control over important posts in the justice system before the February 1948. As a main source, the personal file of Ladislav Lorek from the Office of Prosecutor General Archive was used, useful materials were also found in the Archive of Czechoslovak Communist Party Central Committee (ÚV KSČ 1945–1989): namely file Alexej Čepička (100/52) and General Secretariat of the Central Committee 1945–1951 (100/1).

Illegal contract as a general clause - European trends and new Hungarian judicial practice

Author(s): Ádám Auer / Language(s): English Issue: 4/2023

The invalidity of a contract is a sanction of civil law. In a dispute, the purpose of the law, its effect and its application must be applied together to the contract in conflict with the law. The means of doing so are judicial interpretation and the application of the general clause. An illegal contract may cover several areas: contracts contrary to public policy, a rule of law, morality or fundamental principles. In such a complex legal environment, an important question is which rule is breached and which results in the invalidity of the contract. The relationship between civil law and other rules is of particular importance in the context of the use of AI, where there are a number of technical obligations for the contracting party or administrative rules governing the use of AI. In the digital environment, many sectoral rules impose prohibitions, many norms define specific requirements as well. The study examines the new paradigm of the Hungarian Civil Code of illegal contracts and focuses the judicial practice of the general clause of illegality.

Petr Mareš: Soupis přísedících komorního soudu Českého království v letech 1526–1620

Author(s): Markéta Novotná / Language(s): Czech Issue: 1/2014

Review of: Mareš, Petr: Soupis přísedících komorního soudu Českého království v letech 1526–1620, Národní archiv. Praha 2013, 196 s.

Tomáš Langášek: Ústavní soud Československé republiky a jeho osudy v letech 1920–1948

Author(s): David Hubený / Language(s): Czech Issue: 1/2013

Review of: Langášek, Tomáš: Ústavní soud Československé republiky a jeho osudy v letech 1920–1948. Vydavatelství a nakladatelství Aleš Čeněk, s. r. o. Plzeň 2011, 319 s.

Nová kniha o vídeňském císařském dvoře

Author(s): Pavel Koblasa / Language(s): Czech Issue: 1/2012

Review of: Winkelhofer, Martina: Viribus unitis. Císař a jeho dvůr. Nový pohled na Františka Josefa. Ikar, Praha 2011, 237 s.

JUDECAREA CAZULUI ÎN ABSENȚA PĂRÂTULUI ELIMINAT DE LA PROCES PE MOTIVE DE DISCIPLINĂ

Author(s): Arina Ialanji / Language(s): Romanian Issue: 2/2021

The article analyzes the legal provisions governing the conditions of trial in the absence of the defendant if he is removed from the trial for disciplinary reasons by adjusting them to practical cases both at national level and in the jurisprudence of the European Court and by highlighting gaps in the national legislation in this regard. The researched topic is a current one since the compromising behavior of the defendant during the court hearings is attested more and more often, a fact that directly threatens the order and solemnity of the criminal trial, as well as the interests of the participants in the trial. The issue in question acquires an important connotation, including through the uneven practice applied by the courts on how to judge the case by removing the defendant from the trial, as well as the negative consequences that arise as a result - nullity of the judgment adopted, thus violating the principle of efficient administration of justice. Based on the obtained results, the legal omissions in the part related to the trial procedure in the absence of the defendant are revealed, the judicial errors admitted in practice in this respect, being elaborated preliminary versions for their solution, which can be used effectively for the application of legal provisions. versions for their solution. the activity of applying the legal provisions in practice.

SOME REFLECTIONS UPON THE SUBJECTIVE RIGHT AND THE ABUSE OF RIGHT DOCTRINE

Author(s): Daniela Pojar / Language(s): English Issue: 1/2022

The purpose of the article is an analysis of the theoretical aspects of the subjective right doctrine. Starting from the idea that the subjective right is something different from the positivist norm, the legal thinking was permanently concerned about giving a definition to it, about determining its features and legal nature, elements that differentiate it from the positive right, as well as establishing the principles of its exercise. In the following article we tried to highlight the fact that the exercise of a right by its holder contrary to the principles of exercise, as well as the fulfillment of the obligations assumed by him gives rise to a phenomenon called abuse of right.

Das Kartellgericht der Weimarer Republik: eine Institution zwischen Verwaltungsgericht, Zivilgericht und Verwaltungsbehörde und seine Bedeutung für den verwaltungsgerichtlichen Rechtsschutz

Author(s): Michael Johannes Reichenthaler / Language(s): German Issue: 1/2023

This article deals with the possibilities of obtaining administrative court legal protection at the imperial/national level during the Weimar Republic. Characteristic for this epoch of German administrative jurisdiction is the formation of numerous specialized administrative courts. As an example of this practice, the following article focuses on the Antitrust Court as a typical special administrative court of the Weimar period. However, it begins with the changes in administrative jurisdiction in general that resulted from the new Weimar Constitution, which gave administrative courts constitutional protection for the first time in German legal history. In addition, the paper outlines how this new constitutional framework was received by scholars and had an impact in practice. However, the proclamation of a German Republic after World War I, not only changed the constitution, but also meant that the administration was confronted with completely new challenges. How the German administration responded to this new situation is also briefly outlined in order to provide a better understanding of the importance and scope of the administrative courts' activities at the national level. The article focuses on the antitrust court and in particular on its competences and available remedies. These two parameters of court organization provide information on whether the Antitrust Court was actually an institution committed to legal protection or whether the effectiveness of the administration was the guiding idea that shaped the activity of the Antitrust Court.