„Nie mnożyć bytów ponad potrzebę”. O władzy sędziego na przykładzie postępowań odrębnych

Author(s): Anna Machnikowska / Language(s): Polish Issue: 57/2022

The faulty definition in the political and social consciousness of the category under the nameof “efficiency of court proceedings” and the weak constitutional position of the judiciary hasbecome, inter alia, a trap for the direction of the evolution of the structure of Polish civil proceedings.The solution, which, according to the reformers, is supposed to provide the procedurallaw with a quick response to changes in the needs of justice system stakeholders, becamefrequent amendments of the regulations and their increasingly casuistic wording. The legislatoridentified modernization with a continuous, normative expansion of the construction of thecivil process. One of its elements is the increase in the number and scope of separate proceedings.Their status also affects the principle of judicial management of proceedings. This is due tothe fact of treating the diversification of the courts’ rights and obligations as a necessary componentof many separate proceedings. This circumstance, in turn, results in an unreasonablefragmentation of the judge’s powers and duties. It does not ensure a better adaptation of thelaw to the dynamics and diversity of its environment but is counterproductive. Also, many otherexperiences of judicial practice speak in favor of a paradigm shift responsible for the methodsof regulating the judge’s activity in the process. Without detriment to procedural guaranteesand to the benefit of the functionality of the proceedings in each case, the detailed content ofmany norms of the current Code of Civil Procedure can be replaced by a group of standards withuniversal properties. One of the arguments in support of this postulate is a review of the rightsand obligations of the judge in separate proceedings, carried out from the perspective of therole assigned to the principle of judicial management of civil proceedings.

Droga elektroniczna jako wsparcie zasady pisemności

Author(s): Zuzanna Tokarzewska-Żarna / Language(s): Polish Issue: 16/2022

When conducting research on the evolution of the principle of writtenness and the electronic way contained in the Act of 14 June 1960 – Code of Administrative Procedure, the following research problems should be pointed out. Firstly, whether the legislator maintains the conditions for thorough and fast action of the public administration bodies in a given case, using the simplest possible means leading to its settlement. Secondly, whether the changes do not lead to the exclusion of citizens, or a given group from the possibility of participation in the case. Finally, the research problem oscillates around the evaluation of the correctness of functioning of the adopted regulations in the current legal state, including whether they do not raise interpretation doubts or carry negative consequences for people who want to settle their case before a public administration body. Bearing the above in mind, the aim of the research conducted for the purpose of this article was to determine and assess whether the Polish legislator aims to eliminate the principle of writtenness from the administrative procedure. Conducting research in this regard, the following research methods were used: the historical-comparative method, used for the analysis of previously binding legal regulations, the so-called dogmatic-legal method, used for the study of legal provisions regulating the principle of writtenness in administrative proceedings, the empirical method, used for the analysis of judicial decisions, and the theoretical-legal method, used for the analysis of literature.

Sprawozdanie z Ogólnopolskiej Konferencji Naukowej „Współczesny wymiar bezpieczeństwa finansowego państwa”

Author(s): Szymon Staszak / Language(s): Polish Issue: 16/2022

Administrative judiciary is looking for a balance in a crisis

Author(s): Agnieszka Skóra,Mária Srebalová,Ingrida Papáčová / Language(s): English Issue: 1/2022

The article focuses on actual challenges of administrative justice in the Slovak Republic and Poland. The legal crisis and the crisis in law in both countries have common signs and necessarily differences. The authors analyze selected problems of administrative justice, which are connected by the current state of society marked by the crisis. In the part dedicated to the Slovak Republic and Poland, emphasis is placed on the crisis associated with changes in the judicial system and - additionally - in Poland it is the crisis associated with changes in the law caused by the COVID-19 pandemic. Due to the nature of the researched topic, we have applied analysis, synthesis as well as comparison of legal regulations in the processing of this issue. However, in addition to the mentioned scientific methods of research, we also used scientific literature, case law and analogy of the law. The article can be beneficial by researching the development of problems associated with administrative justice in states with a similar historical development of society.

Valences and inadvertences in the constitutional and legal regulation of acts subject to the administrative tutelage control of the prefect

Author(s): Anca-Jeanina Niţă / Language(s): English Issue: 02/2022

This paper aims to discuss the variables of exerting the administrative tutelage control by the Prefect, a prerogative related to the sphere of administrative litigation, as regulated by Law no. 554/2004. It showcases the current constitutional and legal status of the Prefect in Romania, analysing the provisions of article 123 of said law, from the section concerning local public administration. It makes note of the provisions of Emergency Ordinance no. 57/2019 on the Administrative Code referring to local public authorities and it underlines some inadvertences of the regulation. It invokes the decisions of the High Court of Cassation and Justice – the Panel for solving certain legal questions, which brought to an end the case law controversies concerning the types of acts which are subject to the administrative tutelage control. The author argues that the dispute – yet unsolved, concerning the measure in which such regulations can add to the constitutional text, by means of organic law, another legal subject – i.e., the president of the county council, whose acts are thus subject to the legality control of the Prefect – requires legislative intervention. It concludes by expressing the opinion according to which, until the Constitutional shall be amended, and the infra-constitutional provisions as well, the acts of the county council president cannot be left out of the objective litigation set into motion by the prefect.

Noutăţi în materia controlului ex ante al achiziţiilor publice potrivit O.U.G. nr. 98/2017: avizul conform al ANAP şi acţiunea în constatarea nulităţii absolute a contractului de achiziţie publică

Author(s): Emilia Lucia Cătană / Language(s): Romanian Issue: 01/2018

In this study, we aim to analyse the capacity of the National Agency for Public Procurement (ANAP) to issue assent in exercising its ex ante control function in the process of assigning public procurement contracts and of promoting action in establishing the invalidity of a public procurement contract as per E.G.O. 98/2017. Thus, according to the provisions of this regulation, the main forms of materialising the activity of ANAP in exercising ex ante control are assent and action for establishing the invalidity of a public procurement contract.

Sesiunea anuală de comunicări ştiinţifice a Institutului de Ştiinţe Administrative ,,Paul Negulescu” Valenţe contemporane ale raportului dintre administraţie, justiţie şi politică, Sibiu, 25-26 mai 2018

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 02/2018

Luna mai, a lui „florar”, este cea în care membrii Institutului de Ştiinţe Administrative „Paul Negulescu” îşi dau întâlnire la Sibiu, pentru conferinţa anuală a Institutului. Cu scopul de a supune dezbaterii probleme interesante pentru dreptul public, în general, şi dreptul administrativ, în special, pentru viaţa publică din România, astfel cum este ea reflectată în teorie şi practică.

Contribuţia prin fonduri publice şi posibilitatea dării în administrare către asociaţiile de dezvoltare intercomunitară a bunurilor proprietate publică

Author(s): Vlad-Cristian Soare / Language(s): Romanian Issue: 03/2018

Law No. 286/2006 for amending and completing the Law of Local Public Administration no. 215/2001, regulated the intercommunity development associations, which are cooperation structures that aim to jointly develop projects of regional interest. In the following article, we intend to analyze the possibility of contributing with public funds to the establishment of such associations. Moreover, we had analyze the possibility for public authorities to give assets to the intercommunity development associations.

Unele aspecte derivând din regimul juridic al incompatibilităţilor şi conflictelor de interese reglementate în Codul administrativ al României

Author(s): Ioan Santai / Language(s): Romanian Issue: 03/2018

The New Administrative Code of Romania, regulating among others the institution of the local elected representatives, necessarily addresses the incompatibilities and the conflicts of interest of the representatives of the local communities, that determine the collision of their personal interests with the general ones of that particular community. The Law establishes the cases of incompatibility and defines conditions of the conflict of interest, determining also the correlative juridical liability arising from them, and also the ones related to the activities (acts) undertaken, considered illicit or without legal support.

Reflecţii privind codificarea dreptului administrativ şi viitorul acesteia în condiţiile globalizării

Author(s): Ioan Alexandru / Language(s): Romanian Issue: Supliment/2018

The Romanian society, the state and law, the administration and the justice are faced with the essential challenges of the contemporary world, to which they will have to answer. Among these, the inevitable globalization has already triggered a series of political, economic, administrative and legal processes. How could national administrative law go beyond to the global administrative law? Is there necessary an administrative or administrative code yet? Or are we expecting a global administrative code? The question that seems to be legitimate to me is what this expression, "administrative law", can represent, outside of national law, because global administrative law often remains a fragmented reality without a genuine unity. The administrative law is the main tool for achieving political will, and then natural questions are: the global administrative law is the instrument of what political will? Is it absolutely necessary, then, a world political power? A world public right? A world government? Do the national countries disappear? Does the diversity and beauty of the world disappear? The ethnic disparities and variety of customs are disappearing. So, what do we want to build?

Aspecte controversate în litigiile de dreptul urbanismului

Author(s): Anca Stroiu / Language(s): Romanian Issue: Supliment/2018

The lack of tailored legislation in the field of town planning law generated different doctrinal interpretations and divergent judicial practice. The most controversial issues of law in these disputes were commonly related to the following aspects: the legal nature of the town planning certificate; the compatibility of the injunction regulated by art. 996 of the Civil Procedural Code with the administrative law procedure regarding the claims for the suspension of construction work commenced on the basis of a building permit; the interpretation of the notion of the „date of acknowledgement” of the building permit and the admissibility of claims having as object the establishment of the ownership right through immovable accession for constructions erected without a building permit. However, the interpretation of the administrative law doctrine and the jurisprudence of the courts of law cannot substitute the absence of a town planning code, meant to equalize the legislation issued in the field of town planning, to regulate special procedures addressed exclusively to litigations related to administrative deeds issued in the field of town planning and to respond to current investment projects and town planning needs. Apparently, the first steps in this direction were made in March this year, through the elaboration of a project for the adoption of the preliminary theses of the Territorial Planning, Urbanism and Construction Code which has already been subject to public debate. The fulfilment of the commitments to reform the legislation on territorial administration, town planning, construction quality as well as the elaboration of a town planning code, as assumed on the basis of the Integrated Plan for the simplification of administrative procedures applicable to citizens approved by the National Coordination Committee for the implementation of the strategy for strengthening the public administration 2014-2020, must be achieved as soon as possible.

Aspecte teoretice şi practice privind contractul de delegare a gestiunii

Author(s): Maria Ureche / Language(s): Romanian Issue: Supliment/2018

The treatment of the public water supply and sewerage service, namely the management delegation contract for this service, was imposed by the novelty and the effects that the emergence and implementation of this type of contract has brought to the evolution of water supply services and sewerage system over the last decade. It is important to underline the importance of adopting and using an administrative contract to the extent of delegating the management of public utilities as it is built on the principle of social solidarity, and this is also one of the principles underpinning the construction and functioning of the European Union. The primary purpose of this principle lies in limiting and removing development gaps between geographic areas and uniformizing, as far as possible, the socio-economic and legal conditions for citizens in these regions.

Norme de conduită şi etică specifice funcţiei publice generale – prezent şi perspective în Codul administrativ

Author(s): Daniela Paraschiva Pavel / Language(s): Romanian Issue: Supliment/2018

The paper aims to highlight the main legislative issues regarding the conduct and ethics that are currently applied to the general public function, compared to the changes that will be done after the adoption of the law on the Administrative Code.

Implicaţiile medierii în procedura fiscală

Author(s): Bogdan Florea / Language(s): Romanian Issue: 01/2019

The number of tax disputes increased lately as a result of the frequent taxpayers’ interaction with the tax authorities. Mediation in tax disputes may reduce costs in matters involving rights that parties may dispose of. Finding alternative methods of dispute resolution to prevent or defuse a tax dispute and also to collect the debts, should be a priority to tax authorities in opposition to taking the matters to court. Mediation may be the answer to this goal and could also represent a saving of public money. Tax authorities should seek an amicable agreement with bona fide taxpayers who have become unable to pay their tax obligations. A mediation agreement could mean no rate of interest and no judicial costs with a lawsuit for tax authorities and no lawsuit costs of stamp duties, lawyers’ and experts’ fees for the taxpayer. Using the mediation procedure, the tax authorities could agree that the sums of money illegally paid by the taxpayer, could compensate for other duties that belong to the taxpayer or could be given back to the taxpayer by installment. The amounts from the budget that must be paid to a person, including those resulting from legal contractual relationships may be paid if they are established by enforceable titles. To obtain enforceable title character, mediation agreement on the disputed amounts, may be subject to approval of the court in accordance with Art. 59 para. (2) of Law no. 192/2006 concerning mediation and the mediator profession, amended and supplemented. Initiating and using mediation by tax authorities may be a proof for taxpayers that public authorities are open in finding alternative solutions to judicial system in crisis situations. Law no. 192/2006 concerning mediation and the mediator profession could be supplemented with provisions regulating the procedure in cases of tax disputes, similar with the procedure established for mediation in criminal cases.

Controlor şi îndrumător. Consideraţii privind reglementarea atribuţiilor prefectului în Codul administrativ

Author(s): Dan Constantin Mâţă / Language(s): Romanian Issue: 03/2019

The prefect is a regulated administrative authority, based on the French model, ever since/from the beginning of the modern public administration setting up. Its duties have fluctuated according to the constitutional regime and the level of decentralization in the organization of the public administration. The constant element in this evolutionary process is the role of the prefect as representative of the Government at local level. Currently, the prefect's status and duties are regulated in the Administrative Code, along with the prefect's institution and the decentralized public services. Unlike the previous regulation, the Administrative Code achieves a better systematization by identifying five main categories of duties. Each of these categories is subsequently developed by listing, in a separate chapter, the concrete ways by which it can be achieved. The main elements of novelty of the regulation can be noticed in case of the duties regarding the verification of the legality of the acts of the local public administration authorities and, in particular, of the duties of guidance. The article contains a brief presentation of the evolution of regulation of the prefect's duties and analyses the novelty elements arising from the current regulation. At the same time, the controversial aspects were highlighted and the resizing of the administrative guardianship by including it in the Administrative Code was proposed.

Cooperarea administrativă în domeniul fiscal. Implicaţiile realizării schimbului de informaţii şi a altor forme de cooperare administrativă dintre România şi statele membre ale Uniunii Europene

Author(s): Valentina Gherasim-Proca / Language(s): Romanian Issue: 03/2019

Administrative cooperation between Romania and the Member States of the European Union in the field of taxation entails, with regard to the mandatory automatic exchange of information, certain responsibilities at the level of local public administration as well. The national legislative framework demands from the local tax authorities to collect and provide the central tax body with data and information relating to immovable property located in their territorial jurisdiction and which are held in property by residents of other member States of the European Union. This article outlines some significant elements regarding the activities necessary to the automatic exchange of information in the case of real estate, the standardized procedures and forms facilitating the movement of information.

Natura juridică, trăsăturile şi regimul juridic al Protocoalelor de cooperare dintre SRI şi PICCJ

Author(s): Andrei-Nicolae Popa / Language(s): Romanian Issue: 03/2019

In this paper we aim to demonstrate that the protocols of cooperation between the Romanian Intelligence Service (SRI) and the Prosecutor’s Office attached to the High Court of Cassation and Justice (PICCJ) are tools meant to unify administrative procedures/operations pertaining to legal duties of public authorities, are based on laws and administrative acts of a normative nature, enjoying the presumption of constitutionality and legality. In this regard, we will analyze their legal nature, features and legal regime.

A Novel Digital Service Taxation & Sustainability Legal Framework Utilizing Artificial Intelligence Analysis of Subsea Cable Data Transmissions

Author(s): Klemens Katterbauer / Language(s): English Issue: 1/2022

The digital economy has led to massive changes in the economy and international trading, where user data have become the cornerstone of new business models. Digital services have become transformational and led to significant revenue generation for these corporations. However, there is a growing perception amongst individuals and governments that these digital services are not taxed fairly, given the ability of companies to shift profits between different countries. Digital service taxes have recently become very attractive and implemented in a variety of countries, but significant challenges remain. Artificial intelligence has become an attractive way of determining patterns across data and has been increasingly utilized in legal environments. I will outline a new legal framework for the integration of artificial intelligence for the determination of digital service taxes and outline the integration of subsea cable communication data into the framework. Furthermore, I will address the legal environmental challenges, specifically related to the South China Sea, and how cost associated with can be incorporated into the digital service tax environment.

Anatocism in the Czech Tax Law

Author(s): Michael Feldek / Language(s): English Issue: 1/2022

The paper examines legal disputes regarding the possibility of taking interest of interest (anatocism) payed by the tax administrators in the Czech legal order. The aim of this paper is to assess the outcome of the above-mentioned disputes and to determine whether the current legislation still allows taking interest on interest in tax law. Author draws conclusions mainly from case law of the Czech Supreme Administrative Court and uses analysis, synthesis and descriptive method.

Znaczenie informacji i komunikacji w kontroli zarządczej

Author(s): Mateusz Turko / Language(s): Polish Issue: 1/2022

This article deals with the importance of information and communication in the implementation of management control, which belongs to the group of management control standards. Within this group, three standards are distinguished: current information, internal communication and external communication. Information and communication are the basic components of management control affecting other standards and are indispensable elements in the implementation of tasks of public finance sector units.