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Romanian tax courts have major disagreements over one means of taxpayers’ jurisdictional protection, that is a request for suspension based on article 15 of Law no. 554/2004. The author comments on a recent decision of the High Court of Cassation and Justice that denies the possibility to file such a request once the first court instance ruled on the merits of the case.
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In recent years, the High Court of Cassation and Justice – Administrative and Tax Section has been asked to answer a number of questions regarding tax challenges and particularly the decision to stay proceedings in consideration of an existing criminal file. In its judgement of 12 February 2020, the High Court clarifies that all the procedural arguments regarding the tax decision can only be analyzed after the tax challenge is actually solved and the court is regularly invested to solve a tax litigation. The Court also develops on its earlier case-law to the point that tax authorities in charge of tax challenges need to give reasoning on a decision to stay the proceedings and particularly need to develop on the evidence they consider necessary to be administered in the criminal file and that might be helpful for the tax challenge as well.
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The active role of the judge has many components, one of them referring to the clarification of the procedural framework. Even if the judge cannot exceed the limits of the judgment, set by the parties through their applications and defenses, the court has the obligation to set these limits correctly, in cases where the parties' requests are ambiguous in this regard. The article analyzes, starting from Decision no. 28/2015 of the High Court of Cassation and Justice, the implications of identifying by the appellate court an implicit claim that the first court did not take into account when it verified its competence and solved the case. The interpretative approach is determined by the recent modification of the provisions of art. 130 paragraph (2) and art. 131 C. pr. civ. regarding the time to which, in the first instance, the lack of public order competence can be invoked, respectively at which the first court is obliged to verify, ex officio, its jurisdiction.
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The Article presents Polish solutions concerning „legal remedies” on prolonged legal actions (complain on prolixity of legal proceedings) as described in act of 17 June 2004 about complaint on violating the right to recognize the case in preparatory proceedings lead or supervised by prosecutor as well as in judicial proceedings without justificatory reason. The author points on features of complaint on prolonged legal proceedings and makes analysis of procedures initiated by making a complaint. Subsequently it is compared with standards of European Convention for the Protection of Human Rights and Fundamental Freedoms. The complaint was presented as comparison study - the author resented solutions adapted in selected European countries such as Italy, Austria, Czech Republic and Spain. The similarities and differences of particular legal instruments were presented against this background. Moreover, it was checked whether the adopted solutions comply with Strasbourg standards.
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The regulations on complaints against appellate court judgements met with critical comments from the vast majority of legal sector representatives as early as during the legislative work. Yet, despite the fact this instrument has functioned in practice for over two years, it has not provided an opportunity to contest most of the arguments questioning the legitimacy of its implementation in the criminal proceedings in Poland, but it has also exposed a series of problems of interpretation which had been overlooked before. Apart from pointing out the mistakes made during the legislative work on the bill implementing the instrument in question, and the consequences thereof, the article discusses the issues associated with the character of a complaint as a legal remedy, and the scope of cognizance in appeal proceedings. Subsequently, conclusions regarding the legitimacy of the implementation of complaints in the criminal procedure in Poland and their influence on the duration of criminal proceedings are presented. Due to the fact that the major work on the article had been done by 1 February 2019, it does not discuss the legal problem presented to the Supreme Court on 7 February 2019 (I KZP 3/19).
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Udział prokuratora w postępowaniu administracyjnym i sądowoadministracyjnym regulują przepisy ustawowe. Analiza praktyki administracyjnej i orzecznictwa sądów administracyjnych wskazuje, że przypadki udziału prokuratora w postępowaniu administracyjnym nie są zjawiskiem częstym; jednak istnieją i wywołują szereg problemów o charakterze praktycznym. W niniejszym opracowaniu – z uwagi na jego ograniczone ramy – zwrócono uwagę na dwa zagadnienia expressis verbis związane z problematyką udziału prokuratora w ogólnym postępowaniu administracyjnym.
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The withdrawal of a partner from a tax transparent partnership implies many tax consequences, in particular on the grounds of income tax and value added tax as well. These consequences vary, depending on whether the remuneration received by a withdrawing partner is paid in cash or in subsided form. Moreover, if a withdrawing partner has not received any remuneration such an event causes tax consequences different to those when a withdrawing partner has received a remuneration in which ever form. The complex analysis of the matter in question also requires the determination of tax consequences originated on the side of the remaining partners. The article considers tax consequences of the withdrawal of a partner from a partnership, taking into account the jurisprudence of administrative courts and tax rulings issued by tax authorities.
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Slaba pregătire profesională a judecătorilor în dreptul social (dreptul muncii şi dreptul securităţii sociale)
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Judgment of the Constitutional Court of FB&H No. 27/09, which found that Article 1, paragraph 1 of the Law on Civil Service in FB&H, in the part which refers to cantons, cities and municipalities, is not in accordance with the Constitution of FB&H, broke down theretofore uniform civil service system in the FB&H and opened up the possibility for creation of parallelism in the legislative regulation of this question. In the coming years, with the adoption of Cantonal Laws on Civil Service, legislative parallelism was created. Legislative parallelism has opened up space for legal particularism that is reflected in various legal solutions in laws on civil service and has created, and are likely to create in the future, legal uncertainty in terms of application of appropriate regulations. An example can be the status of advisers to elected and appointed persons in Sarajevo Canton, especially in municipalities and the City of Sarajevo. The aim of this paper is to present the causes and consequences that led to legal parallelism, and then to legal particularism in the civil service law of FB&H, and to indicate the way for possible regulation of this area.
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The article titled „The Death Penalty – The example of United States of America (Furman v. Georgia and the July 2nd Cases) “ relates to the research of the death penalty status within the American legislative. In this article, the special emphasis was put on the verdict of the Supreme Court of the United States of America which was pronounced in 1972. It concerns the case Furman v. Georgia, which was considered as one of the key cases of the second half of XX century. During its history, the United States of America recognized the death penalty. This type of punishment also existed during the colonial period. At rather early stage, some of the colonies adopted criminal laws which foresaw the death penalty for people trading with Indian tribes. With the verdict in the case of Furman v. Georgia, the Supreme Court of the United States of America started the process of reform of the criminal material law and the death penalty was proclaimed as unconstitutional. Consequently this brought to the practice that the death penalty was revised in certain number of states (federal units) with aim to stop its further fulfillment. However, from 1972 onwards, the court had a chance to decide about the status of death penalty, especially within the famous cases from July 2nd from 1976. Among those cases the court paid great attention to the issue of the constitutionality of the procedures when passing the sentence, i.e. death penalty. At the end, it justified the death penalty which was practiced in Georgia, Florida and Texas.
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The debtor may obtain the suspension of execution until the resolution of the substantive action having as object the annulment of the executory title in the same conditions in which the suspension can be obtained until the settlement of the enforcement appeal. These conditions also include the one relating to the payment of a bail. The article examines whether such bail, once paid, will have the same procedural regime as in the case of the one paid for the suspension formulated in the enforcement appeal or if, on the contrary, the rules of common law apply to it. The consequences of this distinction are also analysed herein.
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Companies. Regular general assembly vs. extraordinary general assembly. Call, debate, decision
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Rezumat: Încălcarea drepturilor corporatiste derivate din calitatea de actionar poate fi sancţionată şi prin instrumente de drept administrativ de către Autoritatea de Supraveghere Financiară. În schimb, votul exprimat împotriva adoptării unei decizii a consiliului de administraţie cu potenţial de încălcare a drepturilor derivate din calitatea de acţionar este o manifestare de voinţă a persoanei fizice – administrator – de exonerare de răspundere contravenţională pentru această persoană, deoarece funcţionarea organului colectiv de conducere – consiliul de administraţie – este ordonată conform principiului majorităţii. Abstract: Violation of shareholders rights derived from the shareholder’s capacity can also be sanctioned by administrative law instruments by the Financial Supervisory Authority. Instead, the vote against the adoption of a decision of the board of directors with the potential to violate the rights derived from the shareholder’s capacity is a manifestation of the will of the natural person - administrator - of exoneration of contravention for this person, because the functioning of the collective management body - the board of directors - is ordered according to the principle of majority.
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Curtea de Apel Galaţi, secţia conflicte de muncă, decizia nr.1791 din 22 noiembrie 2011
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