![Decizia nr. 25/2015](/api/image/getissuecoverimage?id=picture_2015_25872.jpg)
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Mijloc de restabilire a echilibrului juridic între consumatori și instituțiile de credit
It is a matter of common knowledge that in the last 10 years, the lending activity has been relatively relaxed and intense, with certain variations, and the rate of debt of the customers and consumers have substantially changed, and the statistics of the National Bank of Romania are eloquent for this purpose. However, as Romania has not been shielded from the consequences of the international financial crisis, it faces a high number of disputes initiated by the credit institutions for the purposes of enforcement of debits held by customers. Thus, as they have seen how their assets were enforced, the debtors have responded to the position of the credit institutions by filing appeals against enforcement, in which they alleged the nullity of certain contractual provisions deemed as unfair. Under the circumstances in which the field of protection of consumers, from the perspective of unfair terms, is as broad and challenging, as actual within the entire European Union, this study intends to emphasize and examine the mechanisms regulated by the lawmaker and according to which courts are called upon to intervene in the relationship between consumers and credit institutions, for the purposes of restoring the legal balance between them, especially in the case of initiating the enforcement procedure.
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The considerations included in para. 28 of Decision no. 895/2015 of the Constitutional Court are not final in explaining the operative part, which only aims at the issue of compliance of art. 666 of the Code of Civil Procedure with the constitutional provisions. These considerations refer to the timely application of the effects of the decision of the Constitutional Court, but not to the issue of compliance of legal texts with the Constitution of Romania.The considerations included in para. 28 of Decision no. 895/2015 are contradictory, they lack clarity, and their enforcement involves additional interpretations on the part of the enforcement courts.
More...Implicații pe plan material și procesual-execuțional
This study intends to put forward the substantive and procedural and execution rules of law, which are relevant in the matter of the obligation of warranty against eviction, supported by references to the specialized legal doctrine, as well as to recent solutions related to the case law.The obligation of warranty against eviction, being the subject matter of certain doctrinal inexhaustible controversies in the matter of substantive law, discloses a complex mechanism, which raises questions from the procedural point of view, as well, both in the stage of trial, and in the stage of enforcement.
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In this study, the author seriously criticise a recent decision of unconstitutionality regarding the declaration of forced execution by the bailiff. Criticisms of unconstitutionality aim at the provisions of art. 665 of the Code of civil procedure, in the form prior to the entry in force of Law no. 138/2014 (at present art. 666) and they start from the finding according to which, by the declaration of enforcement by the bailiff, he took over a part of the specific powers of the court of law. The author emphasizes that such an approach is not sustainable, as the stage of forced execution is fundamentally different from the trial stage, and within this stage, the proper jurisdictional function of the State is not performed.Moreover, the author criticises the allegation of unconstitutionality according to which, the provisions called forth do not provide a judicial control on the writ of execution. To this end, the provisions of art. 666 para. (6) of the Code of civil procedure are put forward, which permits the actual exercise of the appeal against enforcement, both in relation to the court orders of granting and also, of dismissing the application for declaration of enforcement.Moreover, the author emphasizes that the solution of unconstitutionality shall result in the introduction of an unjustified formality, which does not comply with the increased trends of creating a new European space of justice in which the court orders may be enforced in the Member States of the European Union, without any special conditions. Finally, the author concludes that the result of such a decision of unconstitutionality could be to overcrowd the courts with claims, which cannot be settled by bailiffs, and the same guarantees are provided.
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As long as we confine to an interpretation strictly compliant with our domestic law, the issue examined may be easily solved. When certain elements concerning the European law appear, we are obliged to change the examination parameters.At the interface of the interpretation of the aspects of the controversy between domestic law and conventional European law, the principle of enforcement of the latter with priority resides, and it is exactly this principle that should indicate the guideline. Apparently, from the emergence of the rule of art. 666 of the Code of civil procedure (regarding the bailiff’s ability to declare enforcement) and until the declaration of its unconstitutionality, we can discuss about a presumption of constitutionality. However, it remains to be seen how “constitutional” a legal provision that was declared unconstitutional under the previous procedural law, as well, may be. However, besides unconstitutionality, it should be noted that the applicability period of this rule may give rise to unconventionality issues, as well, which may be alleged ex officio by the national judge. The writ of execution issued by a bailiff, not by a court, is conventional, as it is delivered in breach of the provisions of art. 6 para. 1 and art. 13 of the European Convention of Human Rights, art. 47 and art. 52 para. (3) of the Charter of Fundamental Rights of the European Union, art. 1 para. (4), art. 21 para. (3), art. 124 and art. 147 para. (4) of the Constitution of Romania, taking into consideration that it is exempt from judicial control in this way, resulting in the breach of the right to a fair trial. Therefore, the question arises only as to enforcement of unconstitutionality or and unconventionality in the appeals against enforcement pending before the court on the date of publication of the Decision of the Constitutional Court no. 895/2015. Theoretically, two interpretation perspectives emerge, which are slightly different. In actual fact, the national judge has the task to interpret and enforce the law, as this is his part.Beyond this question, the new art. 666 of the Code of civil procedure puts things again on their normal track and, moreover, by its restructuring which unifies the procedure of declaration of enforcement with that of insertion of declaration of enforceability, it shall create a better administration of justice.
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Law no. 207 of 23 July 2015 regarding the Fiscal Procedure Code entered into force on 1 January 2016, after several consultations with the business started in 2013 and the changes it has undergone old code from its entry into force after 1 January 2004.As regards compulsory execution, the new Code of Fiscal Procedure brings some news from the old code that we present in this article. The changes in this area as well as other changes in assembly code are not so substantial that we can speak of a genuine „New Code of fiscal procedure”, as if the civil procedure code which had a much older, but rather a rewriting of several texts that present difficulties in implementation, by updating them regarding their correlation with other regulations and improve after practice provided to the tax authorities.Fiscal legislature wanted to simplify the procedure for recovery of tax claims, aiming at increasing the efficiency of collection by compulsory execution.
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In the event that the judgement of the European Court of Human Rights imposes other obligations on the Romanian State than those regarding just satisfaction or other charges, the only competent court to decide whether the State breached the obligations established under a judgement delivered by the ECHR is this Court, by the method made available to the Committee of Ministers, and not the national courts.Instead, the judgement of the Court, in terms of the amount representing the equitable relief of other charges, as well as the agreement to amicably settle the case, signed by the parties, shall be deemed as enforceable titles, likely to be enforced through the agency of bailiffs and of the national enforcement courts.
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The fundamental right to a fair trial, provided for under art. 6 of the European Convention of Human Rights, includes the enforcement of judgements by a court as well, within a reasonable period of time. The justness of this fact also results from the practice of the ECHR, according to which the Republic of Moldova has the most convictions for the non-enforcement of final decisions. Therefore, the right to a fair trial seems to be an illusion in the event that there is no actual enforcement system.In this regard, Resolution no. 3 of the 24th European Conference of the Ministers of Justice regarding the “General concepts and means of obtaining the actual enforcement of judicial decisions”, which took place in Moscow in October 2001, is important. As a result, on 18 September 2002, the Committee of Ministers adopted the Res Resolution (2002) 12, establishing the European Commission for the Effectiveness of Justice. The Commission, inter alia, considered the principle of access to justice and correct and effective operation of courts, underlying the importance of enforcement of court orders in an effective manner and within a reasonable limited period of time.The effectiveness of the enforcement system is of crucial importance for the system of civil justice, in general. The effectiveness of the enforcement procedures, as well as the status, the activities and training of bailiffs, represent the hard core of this system.The correct and effective enforcement of court orders is possible only in the case that both the society and the State observe and comply with the enforcement procedures. The effective enforcement of court orders depends on the quality of the activities carried on by bailiffs. The bailiffs practising in the Republic of Moldova are not an exception from this point of view, and thus, their adequate management, professionalism, training and remuneration have to be globally focused, developed and consolidated.The enforcement procedure was subject to several reforms. It is remarkable that, starting with the year 2002, the trend has been to increase both administrative and procedural autonomy of bailiffs. Thus, if it was regulated by the Code of civil procedure from 1964 until the year 2003, and bailiffs carried on their activity under the control of the president of the court, in the year 2004, a legislative act was adopted, which regulated the enforcement procedure – Enforcement Code –, and the procedural duties of bailiffs were substantially extended. Along with reforming the enforcement system in the year 2010, several amendments were introduced in the Enforcement Code, and the last code was republished in the Official Journal of the Republic of Moldova no. 214‑220 of 704 of 5 November 2010.Reforms in the legal system of the Republic of Moldova permanently promoted the independence and effectiveness of the enforcement system. However, the role of the courts in the enforcement procedure was not limited, on the contrary, new levers have been created regarding judicial control over the activity of bailiffs and new powers have been established.
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One form of the public aid provided for entrepreneurs who are involved in international trade of goods consists in exempting them from customs duty, that is from the obligation to pay import or export duties, by an appropriate customs administration body. A fundamental principle binding in the European Union is to adhere to rules of competition in order not to privilege any entity in the common market. As a result of being granted public aid, the entrepreneur obtains gain on terms that are more favourable than the ones normally offered in the market. Nevertheless, one should take into consideration the fact that any public aid is forbidden and if it is acceptable, then, only conditionally. Any action of a customs body that could result in amortisation, spreading payments into instalments or remission (the so-called individual exemption) of customs receivables ought to be regarded as granting public aid. Due to the character of this form of granting aid, one should acknowledge the aid in the form of exemption from customs to be realised as de minimis aid, thus, without notification. słowa kluczowe każe w osobnym wierszu.
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The author of the paper attempts to explain mutual relations existing between the general regulations regarding proceedings that are stipulated in the Code of Civil Procedure and regulations regarding separate proceedings in social insurance cases. In the author’s opinion, an analysis of regulations of Book One of the Code of Civil Procedure makes it possible to indicate four (named and described in the paper) categories of provisions that determine the aforementioned relations, taking into consideration the specifics of proceedings in social insurance cases that constitute civil cases in formal meaning.
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The article overviews the most important judicial decisions of the Supreme Court concerning application of the provisions on the EU social security systems coordination, which have been issued since Regulations No 883/2004 and 987/2009 came into force. The analysis allows identifying two major categories of cases. The first relates to disputes concerning determination of the applicable legislation, including delegation of employees to work on the territory of another member state and simultaneous pursuit of activities in two or more member states. The other category concerns awarding of benefits, in particular old age pensions. In this category one can distinguish such issues as application of the principle of equal treatment of benefits, income, facts or events, and relation between coordination regulations, both currently and previously biding ones, as well as bilateral agreements. The issues in questions seem to be dynamic. To a large extent this is due to the changing socio-economic conditions, which labour-related migration is subject to. Moreover, as regards the sphere of social security it may take several decades from the time one becomes subject to social security until they acquire rights to benefits under the laws of various EU member states. All this makes the ability to apply intertemporal rules, as well as the general principles of social coordination, which allow courts to arrive at fair and lawful decisions on matters concerning the specific individual questions, very important.
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In the author’s opinion, the term “payer” used in the social insurance law is incorrect because the construction of an insurance on a third party’s behalf results from a substantive division of the contribution obligation between the contribution payer and the insured. Therefore the contribution payer is the insuring party that insures another person (the insured, a third party) who is entitled to an insurance benefit. The contribution payer as a party to judicial proceedings in social insurance cases acts, i.a., in the role of an “interested party”. The author expresses the opinion that in judicial cases regarding contributions, the contribution payer and the pension awarding authority are parties, and not summoning the employee (the interested party) to take part in the proceedings is a procedural infringement that should not cause invalidity of the proceedings. Furthermore, due to important legal and factual differences between the insured and the contribution payer (the insuring party) their procedural entitlements and obligations should be differentiated.
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The subject of this study is the issue of control of the contribution calculation basis on sickness insurance. The observations lead to the conclusion that the basis of contributions on social insurance may be subject to judicial control, directly or indirectly. In the first case, the control concerns basis of contribution as an element of the content of relation being subject to social insurance. In this case, one of the elements with respect to social insurance, is directly a subject under control. However, on the other hand, indirect control refers to the legal relationship, namely title insurance. Jurisdiction allows possibility of assessment, under Article 58 of the Civil Code, only legal relationship being title insurance. At the same time, the assessment can apply to both the existence of the title, as well as its components, i.e., remuneration. The difficulties in determining the contribution base in the amount declared and the consequent possibility of instrumental obtaining excessive benefits, require legislative changes.
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The article concerns the extraordinary means of appeal in civil procedure pertaining social security cases, in particular cassation of appeal, reopening of proceedings and plea of illegality of a non-appealable ruling. The essay concentrates on specific features of civil procedure in social security cases in comparison to general rules.
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The paper deals with the issue of practical use of the regulation related to return of files to the pension-awarding authority in order to supplement case materials and difficulties of representatives of the pension authorities related to determination of the value of the subject of appeal in cases related to social insurance. The author, in particular, indicates that determination of the value of subject of a litigation within the frame of first instance proceedings, as well as the method of formulating the conclusion of a judgement in cases regarding the amount of social insurance benefits have a substantial influence on the fulfilment of the formal obligation to indicate the value of the subject of appeal. Additionally, it is indicated in what circumstances ordering a return of case files to the pension-awarding authority to supplement the files is justified.
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The paper presents the performance of the Analytical Consultative Centers which are newly created organizational units of the Social Insurance Institution. The idea of establishing the Centers is described along with their organization and task performance. In the later part of the paper, the problem of various interpretations of the social insurance regulations is mentioned and illustrated with the examples provided by the author. Also, there are described difficulties with the uniform application of the law by the pension-awarding body, resulting from differences in interpretations.
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Breaching into the sphere of the exclusive rights of authors is associated with a wide range of possible civil and criminal penalties. Copyright holders have used the possibility to pursue triple of the appropriate remuneration from the perpetrator of culpable violation. Such a possibility, however, was blocked, because the Constitutional Court found in case SK 32/14 that this right is in violation with the Constitution of the Republic of Poland. This article examines complaints and concerns that can arise around aforementioned claim. The following considerations apply only to the arguments omitted by the Court in favor of existing solutions. This paper also presents proposals for solutions that can replace the previous regulation.
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