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Административни актове на полицейски органи по Закона за МВР - усложнени хипотези в административното, наказателното и гражданското право

Author(s): Darina Zinovieva / Language(s): Bulgarian Publication Year: 0

The Ministry of Interior provides administrative acts in Chapter Five, which are intended in view of the general prevention of the state from committing crimes. In the cases of issuing a warning protocol under Article 65 of the LMI, however, there is ambiguity about the manner and procedure of its contestation. The issuance of an administrative act is mixed with a warning act and complicates law enforcement. The article analyzes their legal nature, practice and jurisprudence. It is concluded that the rights of citizens, protected by our Constitution and the ECHR, point to a gap in our legislation that needs to be overcome. Specific such proposals are presented.

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Rolul Curţii Constituţionale şi al Înaltei Curţi de Casație și Justiție în definirea conceptului de funcţionar public

Author(s): Ion Ristea / Language(s): Romanian Publication Year: 0

The author has aimed and succeeded to present the notion of civil servant, the role of the Constitutional Court and of the Supreme Court in defining this concept. In this meaning, we have used the method of the historical interpretation by searching the meaning of the notion of civil servant in the old legislation, the Criminal Code of 1864, 1936, 1969, 2004 and the actual Criminal Code of 2009. Also, have been presented significant decisions of the Constitutional Court and of the High Court of Cassation and Justice referring to the notion of civil servant or in connection to it, emphasizing the role of these institutions in performing the attributions stated by the Constitution and the organic laws governing the civil activity.

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Rolul Curţii Constituţionale în configurarea domeniul public naţional, judeţean şi local după intrarea în vigoare a noului cod civil

Author(s): Dumitru Dinu / Language(s): Romanian Publication Year: 0

The article analyzes the theoretical and practical legal problems of defining public property, public domain and private domain, intra-domain transfer in Romanian legislation through the Romanian Civil Code of 1864, the Romanian Constitution of 1923, the Romanian Constitution of 1938, the Constitution of the Romanian People's Republic of 1948, the Constitution of the Romanian People's Republic from 1952, the Constitution of the Socialist Republic of Romania from 1965, the Constitution of Romania from 1991, as well as the developments that occurred in the mentioned fields with the adoption of Law no. 287/2009, The New Romanian Civil Code. The article also deals with the correlations of public property, public domain and private domain, intra-domain transfer through the prism of the New Romanian Civil Code, the Romanian Administrative Code of 2019 and the role of the Constitutional Court in configuring the national, county and local public domain

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Accesul la jurisprudenţa de contencios administrativ

Author(s): Gabriel Manu / Language(s): Romanian Publication Year: 0

Judicial practice, particularly in higher courts, is an increasingly important argument for the sentencing of legal disputes, which is also part of a phenomenon that is al so manifested in other systems of law, which is the strengthening of its status of an effective source of law in general, and administrative law, in particular. If, at the Supreme Court level, for reasons primarily concerning its role in the unification of practice, access to jurisprudence is to a decisive extent, the lower courts offer such public service only in a limited and selective manner. The absence of explicit regulation of judgments as information in the public interest and of a regime of access to them, or of the general obligation of courts to make them public, at their own motion or at request, in full, together with the conflicting positions expressed over time by the Superior Council of Magistracy, led to an ununified application of Law no. 544/2004 on free access to public interest information. The projects of online publication of judgments in public-private partnerships are not such as to rigorously satisfy the requirements of the principle of without charge and free access to judgments, and the practice of selecting and publishing „relevant” court rulings creates distrust, in terms of without charge and free access objectives, given the lack of criteria to establish such character. A future law solution is either the explicit regulation of the judgement as part of the category of public interest information, with the establishment of the related regime, or the establishment, by the law of the organization and functioning of the national judicial system, of the obligation to publish the given rulings, in full.

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Consideraţii privind repararea pagubelor produse prin acte administrative

Author(s): Adrian-Remus Ghiculescu / Language(s): Romanian Publication Year: 0

The article briefly examines the problem of repairing the damages caused to the persons injured by administrative acts, by the unjustified refusal to solve a request or by the failure to solve it in time. In applying the dispositions of art. 52 paragraph (1) of the Romanian Constitution, the public authorities and institutions are responsible for patrimonial damages, for material or moral damages caused by administrative acts, in typical or assimilated form. This administrative-patrimonial liability is doubled by the joint and several patrimonial liability of the dignitary, civil servant or contract staff for the material or moral damages caused by administrative acts. The legal provisions confer a passive procedural quality to the person who contributed to the elaboration, issuance, adoption or conclusion of an administrative act only if it is called in court together with the public authority and only in the case where the request for a court has the object, besides the cancel of the act administrative or obliging the public authority to solve a request, and the payment of damages for the repair of the damages by the typical administrative act or assimilated. The right of the person injured by an administrative act to repair damages, material or moral, constitutes an essential guarantee for the observance of the fundamental rights and freedoms guaranteed by the Romanian Constitution.

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Codificarea legislației patrimoniului cultural și implicațiile ei juridice și sociale

Author(s): Sorin Ivan / Language(s): Romanian Publication Year: 0

The legal protection of cultural heritage is a topical issue for the Romanian political and legal world. The importance of the cultural heritage in the individual’s and nation’s life, on the one hand, the risks and threats addressed to it, on the other hand, have brought to the fore the need to strengthen and modernize the legal framework for its protection. A solution in this direction, within the framework of European developments, is the implementation of the Cultural Heritage Code. The idea has been objectified so far in the Preliminary Theses of the Cultural Heritage Code (2016). Codification of cultural heritage legislation is a necessary measure, which ensures the integration of the existing legislation in a unitary vision and in a modern, flexible and efficient legal framework. Such a legal instrument contributes to eliminating regulatory dysfunctions, overcoming the legislative vacuum or over-regulation, to conceptual unification, coherence of approach and harmonization of rules. At social level, it creates a favourable framework for raising awareness about the importance of protecting, preserving and developing cultural heritage, for increasing responsibility and involving citizens in the process of protection and conservation, for the implementation of programmes and projects in the field. Synergistically, a necessary and priority measure is the development of education for heritage, with an emphasis on the importance of cultural heritage, its protection, conservation and transmission to future generations.

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Registration of personal data in the record system of the Credit Bureau - an analysis of non-unitary case law

Author(s): Loredana Costina / Language(s): English Publication Year: 0

The paper analyzes the legal regime of registration of personal data of individuals, debtors of banking companies and NFIs within the Credit Bureau (Biroul de Credit) S.A. The paper analyzes the provisions of Decision no. 105/2007 on the processing of personal data in record-keeping systems such as credit bureaus and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to data processing of personal character and regarding the free movement of these data and the conflict in time between the two normative acts, as it has been interpreted in the non-unitary jurisprudence of the courts. The results of the study show that, in the majority jurisprudence at the level of the Bucharest Tribunal, Decision no. 105/2007 continues to apply for the registration of late payments from credit agreements signed before May 25, 2018, although this decision is no longer in force. The implications of this conclusion are major for the activity of banking and non-banking financial institutions, the present paper arguing that for these credit agreements the records made in the database of Credit Bureau S.A. under Regulation (EU) 2016/679, the majority practice in these institutions, are illegal.

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New tendencies of liability in administrative law

Author(s): Elena Emilia Ştefan / Language(s): English Publication Year: 0

In the recent years, we are witnessing a formidable evolution of the legal concepts. Regardless of the legislative system we are in, one of the very current subjects is legal liability in the citizen’s relationship with the state. The tendency we are currently identifying is that liability has an increasingly interdisciplinary character. It is important for law practitioners to know that in comparative law an interference of liability is seen between several branches of law, for example, administrative law and environmental law, due to the recent contribution of jurisprudence. Thus, in France, in a recent matter, very broadly presented in the media, the Paris Administrative Tribunal established the state’s liability for ecological damage caused to private persons. The direct impact of this favorable court decision was immediate, leading to legislative changes. The object of this study is to analyze the interdisciplinary character of legal liability, with a focus on liability in administrative law. By means of the research methods employed in this article, we shall analyze the relevant legislation, doctrine and jurisprudence, in order to capture the tendencies of liability in administrative law, from the national perspective, as well as from the viewpoint of comparative law.

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The opportunity control in administrative litigation – from theory to practice

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

Subject to debates from the point of view of its performance and intensity, the judicial control over the opportunity of administrative acts is, in our opinion, necessary in a state governed by the rule of law. Law 554/2004 contains legal institutions that impliedly enshrine this control. Its implementation raises the problem of the criteria to which courts can refer. The criteria, although different from one case to another, can be systematized. Thus, the evaluation of the consequences of complying with the legal norms with a judicial force superior to the administrative act offers a clear parameter within which public authorities can assess the adopted acts. Secondly, the action of the admin- istration generally takes place in a Member State of the European Union, within a set of principles, such as non-discrimination, transparency of the decision-making process, lack of arbitrariness, impartiality of the administration, respect for legitimate expectations, predictability, consistency, proportionality of the measure with the objective, etc. Thirdly, administrative acts and operations must respect a fair balance between public interest and private rights/ interests affected by them. The performance of this control in the context of two cases we selected led us to some conclusions which have, we believe, a high degree of applicability: the opportunity character of an administrative act must result from the content of the act itself or from acts preceding its adoption and the limits of the appreciation power of public institutions may result from judgments (too). Our research is descriptive and explanatory, including a case study. The use of case law data (somehow abandoned in the doctrinal dispute) brings new perspectives on the approach to the opportunity control.

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Autonomy of administrative law in French and Romanian systems

Author(s): Nicolae Alexandru Ceslea / Language(s): English Publication Year: 0

The paper starts with the identification of unitary and dualistic systems of administrative regulation. The analysis stops to the French and Romanian systems and overlaps them, applying the comparative method. This allows us to observe not only what the current regulations of French and Romanian law looks like, but also opens the perspective of an evolved solution that would meet the needs of a modern administrative law.

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Considerations regarding the legality of the administrative act issued by the court in order to manage the judicial activity

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

The principle of random assignment of cases is closely related to the right to afair trial guaranteed by art. 6 of the European Convention on Human Rights. The main purpose pursued through the random assignment of cases is to provide a guarantee to the litigant that he will benefit in the resolution of his own case, from the designation and trial of an impartial court. An example of violation of this principle involves the settlement of a given case by a court that has not been established by law (condition expressly required by art. 6 ECHR), but by judges who have been appointed by the leading Board of the Court. On the one hand, the present paper aims to analyze how the principle of random assignment of cases can be circumvented by replacing during the trial one or many of the members of a judicial panel with other judges, and on the other hand to provide legal proposals. At the same time, throughout this paperwork, we will expose which are the means that any litigant can use to signal the irregularities regarding the abusive substitution of one or many of the members of a judicial panel. Last but not least, we intend to address a topical issue for doctrinaires, professionals, but also for litigants, given the complexity and "sensitivity" of invoking irregularities regarding the members of a bench of the Court, who would be called to rule in a complaint regarding the way in which they were invested to judge a case that was not randomly assigned to them.

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Jurisdiction of the courts to settle disputes concerning former dignitaries or civil servants

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

Recently, in the practice of the courts, we have noticed a different approach regarding the settlement of some litigations having as object the employment of the patrimonial responsibility of some persons who, at a certain moment, had either the quality of dignitary or the quality of civil servant. It is not an isolated case, it is about a significant number of lawsuits, about 20. Surprisingly, although in all these cases, the quality of plaintiff had the same national authority and the quality of defendants had, relatively, the same persons, the solutions of the courts were different, even contradictory, in terms of material, functional and territorial competence to resolve these disputes. The present paper aims to analyze the relevant court decisions in terms of legal issues, without discussing the merits of the cases, but only the procedural exceptions, inadmissibility and material and functional incompetence of the courts notified in resolving those disputes. In conducting the study, I will consider the methods of interpreting legal rules, respectively grammatical, logical and systematic, the purpose being to clarify this legal issue and to provide help, support to those who, perhaps, at some point, may face this situation.

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Application of exceptional measures, imposed by the state of emergency, in Romania

Author(s): Raluca Antoanetta Tomescu / Language(s): English Publication Year: 0

Recently, the society faced a series of special events, due to the risk situation caused by the spread of the SARS-CoV-2 virus at the international level, which forced the countries of the world to take special measures. At national level, this context was reflected in some exceptional measures in the institutions, namely the decree of the state of emergency, on the entire territory of the country and the restriction of some fundamental rights, for the first time in post-December Romania. Beyond the impact of the moral, economic or legal consequences, which it had on the community of institutions of these extremely drastic measures, the society had to face, not only with new social orders, but also some unclear situations, which aroused countless controversies over the meaning and application of legal rules, the interpretation of which raises even more questions and endless controversy. Therefore, we considered that a retrospective look at the basis of the measures implemented and the practical way in which they are applied is self-imposed.

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Proceedings on claims brought by state bodies as a special type of administrative procedure

Author(s): Volodymyr Kabanov / Language(s): English Publication Year: 0

The article describes proceedings brought by state bodies as a special form of administrative procedure. There are special requirements for the category of public law disputes, state bodies as plaintiffs in a case, and elements of proceedings in cases brought by state bodies. To a certain extent, the details of individual cases in public law disputes involving state bodies are being developed. Administrative procedure is one of the elements of the mechanism for the protection of citizens' rights, freedoms and interests against unlawful activities by State bodies. State bodies play an important role in this process, as the exercise of their right of action forms a separate category of cases dealt with in the context of administrative justice. State and local government bodies and their officials, other entities in the exercise of administrative authority under the direct provisions of the legislation in force or delegated powers constitute a wide range of subjects of administrative and legal relations. The dispersion in national legislation of the legal basis for their participation in the judicial process adds to the complexity of the legal settlement of the relevant conflict situations.

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Търговска сделка VS Административен договор - инструменти за имуществено разместване на блага

Author(s): Zhana Koleva / Language(s): Bulgarian Publication Year: 0

The subject matter of the present study is the commercial transaction, on one hand, and the administrative contract, on the other hand. They are both considered the fundamental instruments for the property transfer of goods. In both cases, the contracting parties are a trader and an administrative body, which gives rise to a dispute. Because in these cases the doctrine debates contract types and applicable law, some contradictory statements are discussed. Based on the philosophy behind the current regulation, the author presents his own vision of the difference between contracts under discussion.

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Последици, действие и отмяна на съдебното решение по чл. 108 от Закона за собствеността

Author(s): Tsvetanka Ivanova-Stoyanova / Language(s): Bulgarian Publication Year: 0

Although rarely used in practice, the revocation is an extrajudicial review is a legal remedy against enforced vicious judicial acts and is undoubtedly necessary for the effective exercise of the right of ownership over immovable and movable property. It cannot be used to remedy deficiencies when the party in the court proceedings has not exhausted all procedures to protect its rights, but can be used to impose justice in favor of the beneficial owner of the property in cases expressly provided by law.

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Оценка на въздействието върху околната среда в Република България

Author(s): Georgi Penchev / Language(s): Bulgarian Publication Year: 0

This scientific study is dedicated to some current problems of the legal regime of the environmental impact assessment in the Republic of Bulgaria. The attention is paid to the legal essence and stages of development of this administrative procedure under the Environmental Protection Act of 2002. In the conclusion some more general conclusions from the existing legal regulation as well as suggestions for its improvement are made.

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Изисквания за редовност към жалбата и протеста при оспорване на административните актове в първоинстанционните съдебни производства

Author(s): Miglena Kisyova / Language(s): Bulgarian Publication Year: 0

The observance of the requirements for regularity of the complaint and the protest in contesting the administrative acts in the administrative court proceedings are important for the proper referral to the court. The Administrative Procedure Code sets legal requirements for the formulation of the complaint and the protest, the observance of which will make these legal remedies suitable for initiating the administrative court proceedings. In the provision of art. 150 of the APC lists the requisites of the complaint and the protest, and in Art. 151 of the APC, the annexes thereto. Everything in its entirety leads to their regularity. It depends entirely on the disputant / prosecutor how and in what way they will be prepared, and what the consequences will be.

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The Concept of an Individual Right under Union Law

Author(s): Herwig C.H. Hofmann,Catherine Warin / Language(s): English Publication Year: 0

After six decades of development of EU law, individual rights under EU law are subject to divergent conceptual understandings. This is problematic since the notion of an individual right is central to the EU’s legal system and its implementation. Under the principle of ubi ius ibi remedium, the identification of an individual right grants access to judicial protection before national courts and the Court of Justice of the EU (CJEU), including in the context of claims to damages for violations of EU law. The concept of an individual right defines and delimits the scope of the possible direct effect of EU law in its Member States’ legal systems and is the distinctive characteristic distinguishing rights from principles under the EU Charter of Fundamental Rights. The notion is thus a central matter for EU constitutional law as well as EU administrative law. This article discusses various approaches to the concept and reviews how consistent interpretation and application of EU legal acts by Union bodies as well as by Member States legislatures, administrations and courts under a single notion of individual right under EU law could be possible.

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Locus standi in Administrative Procedure

Author(s): Joanna Wegner / Language(s): English Publication Year: 0

The chapter deals with a theme of the evolution of the standing in the administrative procedure of the first generation type. The author explains the roots of the concept of legal interest as the basis of the institution of the party to the administrative procedure. What is also highlighted, is that there is a variety of legal grounds for access to the proceedings, far different from, exclusive for the party, substantive provision of law. Some of them could be seen in the pattern for first codifications, namely the Austrian Act of 1925. What is interesting, is that binding regulation is far more restricting in terms of the participation in administrative proceedings than the pre-war provisions. It does not include nor the regulation about the person concerned or about the participatory-type procedures. Over time, this state of regulation has become difficult to accept, because it has turned out that the substantive legal interest is not always an adequate criterion for the participation of an individual in administrative proceedings. The transformations of the modern world, reflected in the regulations of substantive law, especially EU law, force a constant expansion of the catalogue of participants in administrative proceedings. It can be observed that, in a sense, the legislator returns to the idea that guided the first codifications of the law on administrative proceedings, although it is realised outside the Code. These remarks lead to conclusions about the common origin of the first generation procedure and contemporary participatory-type proceeding

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