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About the Legal Value of the Decision Pronounced by the Administrative-Fiscal Contentious Court before the Criminal Court (or, rather, about the lack of any value)

About the Legal Value of the Decision Pronounced by the Administrative-Fiscal Contentious Court before the Criminal Court (or, rather, about the lack of any value)

Author(s): Angelica Roșu / Language(s): English / Publication Year: 0

The present approach is dedicated to the analysis of the discrepancy between the theoretical approaches of the principle of legal security - respectively the way it is defined and developed - and the factual reality, the national judicial practice confirming its ignorance. The analysis is circumscribed by the way in which, within the limits of the principle of legality, the criminal relations of conflict deduced at trial could be established after the pronouncement, between the same parties and based on the same factual situation, of a final judgment in civil matters - especially in the matter of the fiscal administrative contentious; although the res judicata authority of the latter decision should not be questioned, being regulated by art. 52 par. (3) Code of Criminal Procedure, it will be found that the defeat of this principle is carried out "at the hands of the legislator", the enunciated text being a generator of legal insecurity.

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Access to health among women with disabilities – legal aspects and practical problems in Bulgaria

Access to health among women with disabilities – legal aspects and practical problems in Bulgaria

Author(s): Iliyana Miteva / Language(s): English / Issue: 28 (4)/2019

This scientific study is dedicated to the legal aspects and practical problems in the Bulgarian legislation of access to healthcare for women with disabilities. Its relevance comes from the growing need to understand the legal construction linked to the right to health of one of the vulnerable groups in society. Attention herein is directed to the existing legal framework in the People with Disabilities Act, the Health Act, the Health Insurance Act and the Medical-Treatment Facilities Act, as well as separate provisions in other legal acts. The analysis is accompanied by conclusions and suggestions for optimising practice and legislation.

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ACCESS TO JUSTICE IN THE TIME OF PANDEMIC: FUNCTIONING OF LEGAL AID FORMS IN NORTH MACEDONIA

ACCESS TO JUSTICE IN THE TIME OF PANDEMIC: FUNCTIONING OF LEGAL AID FORMS IN NORTH MACEDONIA

Author(s): Ivona Shushak,Vesna Shapkoski / Language(s): English / Issue: 1/2021

The international community has significantly increased its focus on the improvement of justice systems around the world, in recent years. With the increase in effort and interventions in the sector, there has been a need to create tools to assess justice systems, to identify the main elements affecting the workings of the justice machinery. In a context of increasing interest and engagement in justice systems reform, the ability of citizens to access justice institutions to address their needs has come to be seen as an essential element of development, human rights, democracy, and the rule of law. The Republic of North Macedonia has been dedicated in a certain amount to improving the access to justice following these global trends. However, the pandemic has brought to the surface many obstacles in the realization of these efforts and imposed serious issues that need to be further solved. In this paper, we will elaborate on the present situation in North Macedonia from the personal experience of law clinics and civil society organizations that work and contribute closely on this issue. Furthermore, we will identify particular points that need to be advanced and relevant stakeholders to be engaged, to improve the situation, and bring justice closer to everyone.

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ADAPTATION OF THE ADMINISTRATIVE SERVICES PROVISION IN UKRAINE TO THE EUROPEAN STANDARDS

ADAPTATION OF THE ADMINISTRATIVE SERVICES PROVISION IN UKRAINE TO THE EUROPEAN STANDARDS

Author(s): Nataliia Rozmaritsyna / Language(s): English / Issue: 16/2019

The aspects of adaptation of Ukrainian legislation in the field of provision of administrative services to the requirements and standards of the European Community are considered. The article analyzes the concept of “administrative service”, describes the standardization in the system of providing administrative services, administrative and legal regulation in this area, outlines the main directions of improvement of legislation aimed at improving the quality. It is emphasized that the adaptation of the Ukrainian legislation to the EU legislation is to bring national legislation closer to the modern European system of law. Adaptation is an integral part of integration processes, a prerequisite for the harmonization of national legislation with the legislation of international organizations.

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Administrative Review and Reform Movements from the Perspective of International Investment Law

Administrative Review and Reform Movements from the Perspective of International Investment Law

Author(s): Cristina Elena Popa Tache / Language(s): English / Publication Year: 0

The study aims at the administrative implications generated by the regulation or non-regulation of the legislative ensemble with an impact in this field. The combination of these pieces in a legal mechanism or, better said, the assembly between international investment law and administrative law is a cascade of sources of legislation, jurisprudence and doctrine, trialism of great use for the evolution and reform of both areas of law, and for the realization of this study were required a coherent mix between transdisciplinary research methods, being used in this context, the methods: qualitative, comparative and quantitative. Taking into account these review movements, administrative law and administrative issues arising at almost all levels, including the institutional ones, are in front the manifestation of a particularly active role conferred by this unprecedented moment, in which states and investors must rely on a comprehensive legislation, in which to find complete regulations and harmonized with the international law of foreign investments.

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Aspects Regarding the Criminal Liability of the Civil Servant

Aspects Regarding the Criminal Liability of the Civil Servant

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

The point of convergence between administrative law and criminal law is increasingly identified as a practical reality, and not a simple issue that arouses the interest of doctrinal debates, especially with regard to the criminal liability of civil servants. In the present paper, the author tries to draw an overall perspective on the criminal liability of the civil servant in the light of the Criminal Code, taking into account that the approach to criminal law is broader than that stated in the Civil Servant Statute or in the new Administrative Code. Thus, the person appointed to a public office who performs his duties and responsibilities in order to achieve the public interest and in compliance with the law will be safe from liability. At the same time, in the exercise of his attributions and responsibilities, the civil servant must always be vigilant so that he does not fall into entanglements that can attract criminal liability.

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ASPECTS RELATING TO THE EVOLUTION OF THE ROMANIAN LEGISLATION IN THE FIELD OF ADMINISTRATIVE CONTENTIOUS

Author(s): Roxana Dobritoiu / Language(s): Romanian / Issue: Supp 1/2019

ADMINISTRATIVE CONTENTIOUS IN ITS CURRENT FORM IS LARGELY THE RESULT OF HISTORICAL DEVELOPMENTS THAT TOOK PLACE GRADUALLY UNDER THE INFLUENCE OF OUR COUNTRY'S SPECIFIC NEEDS. BEING A FUNDAMENTAL INSTITUTION OF PUBLIC LAW, WHICH CARRIES OUT THE JUDICIAL CONTROL OVER THE ACTIVITY OF PUBLIC ADMINISTRATION BODIES, WHICH AIMS TO GUARANTEE THE LEGALITY OF ACTS ISSUED BY THEM, AS WELL AS RESPECT FOR THE RIGHTS AND LEGITIMATE INTERESTS OF THE PERSONS INJURED IN THEIR RELATIONS WITH THESE AUTHORITIES, IT IS IMPORTANT TO KNOWN HISTORICAL EVOLUTION OF IT IN TIME. IN A STATE OF LAW BASED ON THE LEGAL ORDER, PUBLIC ADMINISTRATIVE COURTS REPRESENT A DEMOCRATIC FORM OF REPARATION OF VIOLATIONS COMMITTED BY LAW ENFORCEMENT AND ADMINISTRATIVE AUTHORITIES, LIMITING THE ARBITRARY POWER OF THEIR TO ENSURE INDIVIDUAL RIGHTS OF CITIZENS.

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Atypical Administrative Acts. The Administration Silence and the Absence of the Administrative Act

Atypical Administrative Acts. The Administration Silence and the Absence of the Administrative Act

Author(s): Iulian Nedelcu / Language(s): English / Publication Year: 0

The normative acts from the last period confirm the thesis according to which the silence of the administration signifies a tacit authorization. The doctrine expresses also the opinion according to which the refusal to settle, that is the unjustified refusal, and the silence of the administration would have the meaning only of “facts assimilated to administrative acts”. According to Law 554/2004 on administrative litigations, the concept of administrative act is extended compared to its ordinary meaning; within this concept, next to the unilateral express manifestation of will (the typical administrative act), the law introduces also the silence of the administration, respectively the unjustified refusal (the atypical administrative acts). It should be noted that not all refusals to solve a request according the petitioner’s will can be qualified as an unjustified refusal, but only when the refusal is an abuse, meaning in fact the excess of power of the administration over the person requesting the satisfaction of a legitimate interest. In administrative law, there have been discussions about the admission or not of the theory of absolute and relative nullities; the admission or not of the theory of annulment; the admission or not of the theory of non-existence and the relationship between nullity and revocability.

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CERTAIN ASPECTS OF THE INSTITUTION OF ADMINISTRATIVE CONTENTIOUS AS A DEFENDER OF THE FUNDAMENTAL RIGHTS OF THE CITIZEN

Author(s): Roxana Dobritoiu / Language(s): Romanian / Issue: Supp 2/2019

IN ACCORDANCE WITH ARTICLE 52 (2) OF THE ROMANIAN CONSTITUTION REPUBLISHED IN 2003 ENTITLED "THE RIGHT OF THE PERSON INJURED BY A PUBLIC AUTHORITY" "THE PERSON INJURED IN A RIGHT OF HIS OWN OR IN A LEGITIMATE INTEREST, BY A PUBLIC AUTHORITY, BY AN ADMINISTRATIVE ACT OR BY THE FAILURE TO RESOLVE WITHIN THE LEGAL TIME LIMIT OF AN APPLICATION, IS ENTITLED TO OBTAIN RECOGNITION OF THE CLAIMED RIGHT OR LEGITIMATE INTEREST, ANNULMENT OF THE ACT AND COMPENSATION FOR THE DAMAGE." ADMINISTRATIVE CONTENTIOUS REPRESENTS A LEGAL PHENOMENON THAT AIMS TO PROTECT THE RIGHTS OF CITIZENS AGAINST POSSIBLE ABUSES OF THE ORGANS OF PUBLIC ADMINISTRATION AND OF PUBLIC SERVANTS THAT WORK WITHIN THOSE BODIES.

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Claims secured by a registered pledge in sanation proceedings

Claims secured by a registered pledge in sanation proceedings

Author(s): Rafał Adamus / Language(s): English / Issue: 28 (4)/2019

This study concerns the legal situation of a receivable secured by a registered pledge in a debtor’s sanation (restructuring) proceedings. The registered pledgee has a special position in the course of such proceedings. The study discusses the rules of subjecting the receivable secured by the arrangement, the rules of preparing and contesting the list of receivables, and finally the rules of satisfying the pledgee.

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Considerations on the Admissibility of the Enforcement Appeal Requesting the Reduction or Elimination of the Penalties Established for the Non-Enforcement of a Court Decision Pronounced in the Matter of Administrative Litigation

Considerations on the Admissibility of the Enforcement Appeal Requesting the Reduction or Elimination of the Penalties Established for the Non-Enforcement of a Court Decision Pronounced in the Matter of Administrative Litigation

Author(s): Nicolae-Horia Țiț / Language(s): English / Publication Year: 0

The study analyses the admissibility of the enforcement appeal formulated pursuant to art. 906 para. (5) of the Code of Civil Procedure, in case there have been established penalties for the non-execution in due time of a decision pronounced in the matter administrative litigation, based on art. 24 para. (4) of the Law no. 554/2004. Herein are analysed the common law provisions comprised in the Code of Civil Procedure, their compatibility with the special procedure regulated by art. 24 of the Law no. 554/2004 and the relevant elements of distinction for formulating the conclusions are being highlighted. Arguments from the jurisprudence of the High Court of Cassation and Justice and the Constitutional Court, as well as the opinions expressed in the doctrine, both in civil procedural law and in administrative law, are used for the purpose of the analysis. The conclusions of the study also highlight the manner in which the current regulation could be improved, through de lege ferenda proposals.

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Czy art. 26a ustawy o odpadach pomoże w walce z nielegalnym gromadzeniem odpadów?

Czy art. 26a ustawy o odpadach pomoże w walce z nielegalnym gromadzeniem odpadów?

Author(s): Paulina Biskup / Language(s): Polish / Issue: 1-2/2020

The main purpose of this article is to discuss the application of Article 26a of the Act of 14 December 2012 on Waste, which was added to this Act under the provisions of the Act of 19 July 2019 amending the Act on Maintaining Cleanliness and Order in Municipals and certain other acts. Administrative bodies have been struggling with the growing problem of illegal waste collection for several years. The vast majority of cases concern proceedings to dispose of waste illegally collected in so-called wild landfills and as a result of litter, and only a small percentage of proceedings are conducted by administrative bodies in connection with illegally collected waste as a result of business activity. The problems faced by administrative bodies resulted in the introduction by the legislator of Article 26a to the Act on Waste, under which administrative bodies were authorized to dispose of abandoned waste instead. In the first part of the article the author discusses the content of the changes introduced to the Act on Waste under the amendment from 2019, further discusses the details related to the initiation of administrative proceedings under Article 26a of the Act on Waste. Next, the author focuses on the discussion of legal remedies available to persons interested in initiating proceedings under mentioned above Article. At the very end, the problems that may arise in connection with the application of Article 26a of the Act on Waste by administrative bodies are described.

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Despre contractul de concesiune

Despre contractul de concesiune

Author(s): Voicu Bara / Language(s): Romanian / Issue: 2/2018

Concession is the most widely used method of exploiting the public domain by the administrativeauthorities by granting rights to individuals.Concession of a public goods has been known since Antiquity, in the Roman law, but it was developedin the Middle Ages when concessions of "public goods" became an income source for monarchs or ameans of rewarding those engaged in political struggle with them.Then the French Domain Code of 1790 and subsequent regulations constituted an important step inthe development of the concession. The theory of administrative contracts has been created in theFrench law, the State Council laying the foundations for this concept through its jurisprudence.Therefore, the concession is a fixed-term legal operation of granting rights to exploit public goods orservices or carry out investments in public works, by individuals acting on their own risk and liability,in return for a fee that is paid to the public authority or it’s right to collect taxes.Both in theoretical and practical terms, the concession institution has continuously evolved into alegal operation which is used in most countries worldwide, irrespective of their legal system.In our legal system, the regime of concessions is extensively regulated in accordance with theEuropean Union directives. The general legal provisions are stipulated in Article 866, Articles 871-873 of the Civil Code, OUG 54/2006 which regulates the concession agreement for public propertyand Law no. 100/2016 which regulates concessions of works and concessions of services. The otherlegal acts relating to concession in different branches or fields of activity represent the specialprovisions in the matter. Therefore, the application of these legal regulations shall be made inaccordance with the principles of "generalia specialibus non derogant" and "specialia generalibusderogant".

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FIDIC Standard Forms of Contracts or National Contracts in Public Investment

FIDIC Standard Forms of Contracts or National Contracts in Public Investment

Author(s): Dragoș Mănescu / Language(s): English / Issue: 1/2021

FIDIC standardized models have been the basis for international contracts specific to large-scale construction and installation works carried out mainly in the field of public investment. They have been a source of inspiration for national standard contracts which have gradually come to be used in the public works contracting process. With the appearance in 1959 of the first bilateral investment treaty, FIDIC investor protection clauses began to be harmonized with existing international investment treatment standards in the body of investment treaties, as any type of investment is based on a contract concluded on the basis of the pre-existence of a protection and promotion treaty.

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Forest Concession in Romania and Brazil

Forest Concession in Romania and Brazil

Author(s): Cătălina Georgeta Dinu / Language(s): English / Issue: 1/2021

The Romanian Forestry Code regulates the principle of conserving the biodiversity of forest ecosystems, by inserting sustainable management measures: the establishment of protected natural areas, ecological reconstruction, regeneration and forest care. The concession contract is not, in itself, a way of sustainable forest management, as is the case in other countries. Thus, the objective of this study is to analyze the legislation specific to the forestry field from the perspective of the concession contract, by identifying regulations that would be an example of good practice. In this sense, we have identified the regulations in Brazil, given the measures that this country has partially managed to implement for the protection of forest lands, as a model that will be followed in the near future, by the Romanian legislator. The comparative method of the legislation of the two countries aims to determine the deficiencies of this law from the perspective of the impact that the conclusion of a forest concession contract may have on the concessioned property itself, as well as the way in which the public interest is respected. The identification of sustainable management criteria, according to which the exploitation of public or private forest land is assigned, is an essential element to be taken into account in the case of a concession, in order to develop legislative proposals to improve the legal framework by which the principle of conserving the biodiversity of forest ecosystems should be applied. A particularly useful aspect for further research would be to address the issue in terms of international investment law.

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HUNGARIAN CIVIL PROCEDURE PROVISIONS DURING THE STATE OF DANGER PERIOD
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HUNGARIAN CIVIL PROCEDURE PROVISIONS DURING THE STATE OF DANGER PERIOD

Author(s): László Pribula / Language(s): English / Issue: 3/2020

In March 2020, the Hungarian civil procedure faced an extraordinary challenge by the unpredictable but widely threatening Covid-19 epidemic, which necessitated the introduction of provisions as effective as possible to protect public health. The task was challenging because the public does not only expect the courts to settle the legal disputes righteously, but, based on a century-long development in the history of law, the requirement of verbal and direct hearings has become of accentuated importance. The traditional model of civil cases centres around the public institution of hearings with the simultaneous presence of the judge, the parties, and their representatives, as well as other actors in the case. Simultaneously, the legislator accentuated the importance of concentrated and rapid case management, especially in the past few years. The extraordinary situation caused by the epidemic might have raised the complete close-down of courts. But, as there is no court proceeding without hearings, this solution could not have been acceptable by either the parties seeking to assert their rights or by court employees for reasons of human resources management, as the judgements of legal disputes would have been postponed for an undefined period. The interests of both the citizens seeking justice and the court employees could be fulfilled by a solution that created the conditions of uninterrupted jurisdiction and the avoidance of personal contacts to protect their health. After a necessary period of preparation resulting from the unexpected situation, this extremely difficult issue was solved by the Government Decree 74/2020 (from 31 of March), officially abbreviated as VEIR., which did not abrogate the generally effectual procedure rules, but merely adjusted them to the specificities of the crisis situation. The same happened to the civil procedure too. During the period of the state of danger, in contentious (and noncontentious) cases, depending on the date of bringing of the action, the regulations of either Act III of 1952 (the 1952 Civil Procedure Code, henceforth 1952 PP.), in force until the 31 of December 2017, or Act CXXX of 2016 (the current Civil Procedure Code, hereafter PP.), in power from the 1 of January 2018, were applicable, with the amendments included in the government decrees. This different regulation formed the special state of danger procedure law to mitigate the consequences of the epidemic.

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Implementing Regulation regarding Minority Rights in Romania Special Overview of the Legal Frame of Romanian Law and Constitution

Implementing Regulation regarding Minority Rights in Romania Special Overview of the Legal Frame of Romanian Law and Constitution

Author(s): Flavia Lucia Ghencea ,Mihnea Claudiu Drumea / Language(s): English / Issue: 2/2020

The general concept of non-territorial autonomy is analyzed in the specialized doctrine from various perspectives - considered, in fact, as its attributes – such as, cultural, linguistic, educational, traditional, and religious perspectives- all considering the identity of the minority group that lives in a majority community. The present paper, part of a larger research, proposes, on the one hand, an analysis of the legal framework regarding non-territorial autonomy in Romania - from the perspective of the regulations regarding the establishment, organization and functioning of the authorities with their role in the elections and the administrative structures at a local level and, whilst considering the role played by the minority groups in this framework. Because Romania has recently adopted a new fundamental regulation for the functioning of public administration – the New Administrative Code - which contains important regulations which have an impact on minorities’ lives, another purpose of this research is to track how they are applied to the provisions on the linguistic rights of the national minorities included in Local Public Administrative Regulation. The objectives of this research will be, first, to use the data obtained in national reports and secondly, to make recommendations on the most efficient way in which the legislative norms regarding the protection of minorities can be applied, focusing on costs, human and financial resources.

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INTELLECTUAL AWARENESS IN JUDEX JURIS CONTRADICTION AGAINST THE IRREGULARITY OF IUS CONSTITUTUM AND IUS CONSTITUENDUM

INTELLECTUAL AWARENESS IN JUDEX JURIS CONTRADICTION AGAINST THE IRREGULARITY OF IUS CONSTITUTUM AND IUS CONSTITUENDUM

Author(s): Ahmad Heru Romadhon,Wredha Danang Widoyoko / Language(s): English / Issue: 16/2019

This research will unmask the essence of a more comprehensive legal context by reviewing a Supreme Court (MA) ruling, Cassation Decision Number 1555 K/PID.SUS / 2019. The verdict is contradicted by ius contitutum and ius constituendum. The case that appealed against the alleged corruption with the issuance of the issuance of the BLBI Declaration Letter to the Indonesian National Trade Bank conducted by Syafruddin Arsyad Temenggung was acquitted by the judges of the Supreme Court, who had previously been sentenced to a high court criminal sentence of 13 years in prison and a fine of Rp. 700 million and 3-month confinement, which later sentenced Syafruddin to be increased to 15 years in prison and a fine of Rp.1 billion with 3 months subsidiary confinement on appeal. This research is classified as normative legal research, by inventorying primary and secondary legal materials as well as approaching legal concepts which are then drawn conclusions and presented theoretically. In this study it is more interesting that the Supreme Court judges are more likely to protect public officials from the bondage of the law.

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Judgment of the Court of Justice of the European Union of 19 November 2019 – selected comments

Judgment of the Court of Justice of the European Union of 19 November 2019 – selected comments

Author(s): Bogna Baczyńska / Language(s): English / Issue: 28 (4)/2019

The changes introduced into the judiciary system within the last few years have actually led to the infringement of the principle of a tripartite division of power – Poland is inclining towards authoritarianism. The Constitutional Tribunal affected by formal changes and (partially) filled with persons who cannot guarantee independence – has ceased to perform their constitutional functions and ensure the constitutionality of laws long time ago. The “reforms” have already had impact on the judiciary authority, i.e. the courts. The above-described situation alerted the international opinion, thus, apart from the individual countries, many international organisations have also voiced their concerns. From among of the aforesaid organisations, the European Union (EU) is responsible for the key task. The changes in the structure of the Supreme Court and National Council of the Judiciary have become the subject of the preliminary procedure addressed to the Court of Justice of the European Union. In response thereto, the European Court of Justice located in Luxembourg stated that the cases concerning judges may not be tried by the court which is not independent or unbiased. The preliminary procedure is based on conciliation, which guarantees uniform application of Community law in all Member States. Therefore, it is always the national court that is responsible for the final resolution of the case. In the analysed case, it is the Supreme Court.

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Jurisprudence Aspects about Representation in Public Utility Contracts for Territorial Administrative Units

Jurisprudence Aspects about Representation in Public Utility Contracts for Territorial Administrative Units

Author(s): Sandra Gradinaru / Language(s): English / Publication Year: 0

The issue analyzed in this paper refers to the mandate given by the territorial administrative unit of Iași to a company with state capital. This mandated company has as object of activity the administration of condominiums. The mandate was conferred by a Local Council Decision by which the administrator (agent) could sign contracts with public service providers on behalf of the administrative-territorial unit. Beyond the fact that the limits of the mandate were expressed by Local Council Decision, and the specialized literature and judicial practice is majority in appreciating that this Local Council Decision can be equivalent to a mandate given by the territorial administrative unit for the condominium administrator to conclude contracts with suppliers, we aim to analyze a distinct judicial practice. By Sentence no. 6882/17.08.2020, the Iași District Court decided that the mandate given to the condominium administrator is not an express one, and in the Local Council Decision it is mentioned that the administrator will conclude the contracts with the suppliers in his own name. For this reason, the court considered the mandate given to the administrator to be ineffective. During the paper, we will demonstrate the judicial error of the court because the phrase "in its own name" found in the Local Council Decision can only be assessed in the sense that the administrator will represent the territorial administrative unit when concluding contracts for public utilities. The court's interpretation is incorrect, as it claims that the territorial administrative unit mandated a company with state capital to conclude contracts with suppliers in its own name. Clearly, the mandate was given to the administrator to conclude public utility contracts on behalf of the territorial administrative unit.

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