Modern Visions of Public Law
Modern Visions of Public Law
Contributor(s): Cristina Aragão Seia (Editor), Daniela Nováčková (Editor)
Subject(s): International Law, Sociology of Law, Comparative Law, Administrative Law
Published by: ADJURIS – International Academic Publisher
Keywords: Law; Public Law; administrative science; administration; administrative court;
Summary/Abstract: This volume contains the scientific papers presented at the 6 th International Conference “Contemporary Challenges in Administrative Law from an Interdisciplinary Perspective” that was held on 19 May 2023 online on Zoom. The conference is organized by the Society of Juridical and Administrative Sciences. More information about the conference can be found on the official website: https://alpaconference.ro. The scientific studies included in this volume are grouped into three chapters: • Specific Interdisciplinary Interactions in the 21st Century Public Law. The papers in this chapter refer to: administrative science or sciences? - research must remain interdisciplinary; challenges of legal regulation regarding cryptocurrencies; Government rocade - a genuine constitutional solution or an illusory, discretionary one?; problems of administration of disputes arising in connection with the public service: jurisdiction and the possibility of mediation; complementarity between civil Status acts and mitrical acts; the new trends in administrative decisions in Portugal – the Simplex program and the adequate pursuit of public interest • On the Vital Public Interest in Efficient, Effective and Fair Administration at All Levels of Government. This chapter includes papers on: European Union membership and the Constitution of Romania; control over the administration in Kosovo; where next, local self-governments?; 100 years of constitutional regulation of the Romanian contentious administrative; the compensation mechanism of expropriated pursuant to Law no. 255/2010 - vulnerabilities and possible solutions; controversies regarding the withdrawal of the right of use over the land assigned on the basis of Law no. 15/2003 regarding the support given to young people for the construction of a personal property. • Regulatory Practice and Judicial Procedures in Public Law. The papers in this chapter refer to: the latest legislative changes of the administrative litigation Law no. 554 of 2004; the impact of rulings relating to questions of law on administrative acts; considerations regarding the appeal to the administrative court of the individual performance appraisal report of civil servants; the administrative court system and its impact on Albanian private enitites; authority of res judicata of the decision of the administrative court before the criminal court. This volume is aimed at practitioners, researchers, students and PhD candidates in juridical and administrative sciences, who are interested in recent developments and prospects for development in the field of public law and public administration at international and national level. We thank all contributors and partners, and are confident that this volume will meet the needs for growing documentation and information of readers in the context of globalization and the rise of dynamic elements in contemporary public law and public administration.
- Page Count: 228
- Publication Year: 2023
- Language: English
Administrative Science or Sciences? Research Must Remain Interdisciplinary
Administrative Science or Sciences? Research Must Remain Interdisciplinary
(Administrative Science or Sciences? Research Must Remain Interdisciplinary)
- Author(s):Diana Dănișor
- Language:English
- Subject(s):Politics and law, Comparative politics, Sociology of Law, Comparative Law, Administrative Law
- Page Range:11-23
- No. of Pages:13
- Keywords:administrative science/sciences; interdisciplinary research; political science; administrative law; humanities;
- Summary/Abstract:If human sciences study behaviours, administrative science mobilizes a number of disciplines, raising administration problems from a double perspective – theoretical and practical. Since the points of view of specialists in these disciplines do not overlap, one speaks of plural administrative sciences rather than of a single, unified administrative science. Administrative science is generally approached within a single discipline, even if it requires a broader approach, with no need to integrate knowledge from different disciplines that have as their object the knowledge of public administration, as it is difficult to reduce the research results from these disciplines to a common denominator. But a theory of public administration common to all administrative sciences can only be achieved through the common approach of research devoted to the current problems of public administration, research undertaken by representatives of administrative law, administrative procedure, administrative policy, sociology, history, political science, legal linguistics, etc. to focus on diverse and selective topics, to approach in a general way, but also in detail.
Challenges of Legal Regulation Regarding Cryptocurrencies
Challenges of Legal Regulation Regarding Cryptocurrencies
(Challenges of Legal Regulation Regarding Cryptocurrencies)
- Author(s):Costin Răzvan Chiriță
- Language:English
- Subject(s):Law on Economics, ICT Information and Communications Technologies, Socio-Economic Research, Sociology of Law
- Page Range:24-37
- No. of Pages:14
- Keywords:cryptocurrency; regulation; Romania; European Union; MiCA;
- Summary/Abstract:Being one of the essential cells of society, law adapts to the rhythm in which the economic, social, and political environment evolves. Through the lens of technological advances, new challenges arise for states and practitioners in regulating and understanding the mechanisms applicable to new technologies. It is undeniable that one of the biggest challenges is generated by cryptocurrencies, their mode of operation, their legal qualification, regulation, and transmission from a legal perspective. From this consideration, we consider it useful to look for the answers to the identified problems and, where appropriate, to analyze the solutions required for the regulation of this field so that we can ensure a legal framework that meets practical needs. Starting from these premises, we will analyze the way in which European legislation and Romanian legislation respond to the challenges both from the point of view of legislation and by analyzing the way in which it relates to the issue of civil capacity, identification of persons by ensuring a legal framework that subsumes the existing legal system.
Government Rocade - A Genuine Constitutional Solution or an Illusory, Discretionary One?
Government Rocade - A Genuine Constitutional Solution or an Illusory, Discretionary One?
(Government Rocade - A Genuine Constitutional Solution or an Illusory, Discretionary One?)
- Author(s):Oana Șaramet
- Language:English
- Subject(s):Constitutional Law, Governance, Electoral systems, Sociology of Law
- Page Range:38-50
- No. of Pages:13
- Keywords:government formation; government rotation; parliamentary majority; constitutionality; discretionary power;
- Summary/Abstract:Democracy is also about majority, a majority that is increasingly difficult to achieve as a result of holding an election to appoint representatives to Parliament. However, the governance of a state must be ensured, which is why the constituent legislator has the difficult task of finding constitutional solutions to build such a majority. However, such majorities will always be fragile, and those who form them will try to find the most surprising solutions to ensure their survival. One such solution could be the governmental rocade envisaged by the current parliamentary majority in Romania? Can the constitutional rules on the formation of a government be interpreted and applied in a discretionary manner? Through this study we aim to identify possible constitutional solutions for such a governmental rotation, their viability, including by analysing the jurisprudence of the Constitutional Court, but also the constitutional rules concerning the formation of government in countries with a political regime similar to ours, such as Portugal, Finland, as well as the limits of a possible discretionary power in the implementation of such a rotation.
Problems of Administration of Disputes Arising in Connection with the Public Service: Jurisdiction and the Possibility of Mediation
Problems of Administration of Disputes Arising in Connection with the Public Service: Jurisdiction and the Possibility of Mediation
(Problems of Administration of Disputes Arising in Connection with the Public Service: Jurisdiction and the Possibility of Mediation)
- Author(s):Mariia Karmalita, Maryna Pyzhova
- Language:English
- Subject(s):Law on Economics, Socio-Economic Research, Sociology of Law, Administrative Law, Labour and Social Security Law
- Page Range:51-63
- No. of Pages:13
- Keywords:labor relations; administrative proceedings; public service; mediation of labor disputes;
- Summary/Abstract:The purpose of the publication is to clarify the legal grounds for delimiting the jurisdiction over disputes arising in connection with public service and the legal grounds for applying the institution of mediation in the field of labor relations. The article examines the legal basis for determining the jurisdiction of labor disputes in Ukraine based on their subject matter and peculiarities of the subject composition of the dispute, as well as the prospects for using mediation, especially in the context of the challenges posed by COVID-19 and martial law in Ukraine. It is stated that 1) labor disputes arising in connection with public service may be considered within the framework of administrative proceedings; 2) globalization of the economy, in particular, the integration of the Ukrainian economy, requires the introduction of new effective institutions regulating market relations, and thanks to mediation, the institution of labor disputes has been able to develop in a new vector. The author analyzes the correlation between the concepts of "civil service" and "public service" and offers recommendations for their differentiation. The author formulates the concept of "dispute in the field of labor relations and public service". The legal grounds for the use of mediation in the field of labor relations and public service are substantiated. The methodological basis of the research is such methods of scientific knowledge as: dialectical, comparative legal, dogmatic, logical methods of scientific knowledge.
Complementarity between Civil Status Acts and Mitrical Acts
Complementarity between Civil Status Acts and Mitrical Acts
(Complementarity between Civil Status Acts and Mitrical Acts)
- Author(s):Marius Vasile Bârdan
- Language:English
- Subject(s):Civil Law, Sociology of Religion, Sociology of Law, Comparative Law
- Page Range:64-70
- No. of Pages:7
- Keywords:civil status documents; legal institutions; certificate; religious framework;
- Summary/Abstract:The present study aims to analyse the link that can be established between civil status acts and those that are performed in the church. By presenting concrete examples, the article highlights both similarities and differences. The article also highlights the connection that we believe must exist in a society between these two institutions, the legal and the religious, and how they influence each other. As important as the mission of the law is, the religious framework cannot be ignored when events are directly linked to civil status acts. Aware that the two institutions have their own organisational framework, we will conclude with our view of how the two interact, also emphasising the comparative dimension.
The New Trends in Administrative Decisions in Portugal - the Simplex Program and the Adequate Pursuit of Public Interest
The New Trends in Administrative Decisions in Portugal - the Simplex Program and the Adequate Pursuit of Public Interest
(The New Trends in Administrative Decisions in Portugal - the Simplex Program and the Adequate Pursuit of Public Interest)
- Author(s):Raquel Carvalho
- Language:English
- Subject(s):Energy and Environmental Studies, Law on Economics, Socio-Economic Research, Sociology of Law, Administrative Law
- Page Range:71-84
- No. of Pages:14
- Keywords:administrative simplification; non-express acts; silence as an administrative act; public interest; environmental interests;
- Summary/Abstract:The trend towards the acceleration and simplification of administrative procedures is not new in the Portuguese legal system. However, the globalization of economies, which need to be reconciled with the protection of multiple public interests, has been pushing the legislator to pursue this path. This paper proposes to analyse DL no. 11/2023, of February 10th, included in the simplex programme, which has introduced several simplification and acceleration changes in many legal systems, especially in the environmental field. This is a particularly complex area, which requires great care when implementing solutions that facilitate decision-making, at the serious risk of not adequately pursuing public interests. The preamble of this law clarifies that it " aims to initiate the simplification reform of existing licencing, through the elimination of licences, authorisations, acts, and dispensable or redundant procedures linked to the protection of environmental resources, simplifying the activities of companies without compromising environmental protection (...), the Public Administration focusing, particularly, on monitoring, co-responsibility, and self-control by economic operators. Is simplification reconcilable with environmental public interests? Will it be sufficient, given the irreversibility of much ecological damage, to rely solely on monitoring and surveillance functions, leaving aside the preventive and precautionary functions?
European Union Membership and the Constitution of Romania
European Union Membership and the Constitution of Romania
(European Union Membership and the Constitution of Romania)
- Author(s):Ovidiu Horia Maican
- Language:English
- Subject(s):Constitutional Law, EU-Accession / EU-DEvelopment, EU-Legislation, Sociology of Law
- Page Range:86-94
- No. of Pages:9
- Keywords:Romania; Constitution; Treaty of Lisbon; accession; European integration;
- Summary/Abstract:One of the problems that bring a strong lately (despite past failures in implementing the new European construction) is what effect it will have on Romania's accession to the European Union for the Constitution of our country. In the last years, much less attention has been given to the practical implementation of new institutional proposals included in the Treaty of Lisbon. Even a cursory examination indicates that the implementation of some of these proposals is likely to be uneasy, and in some cases could be a source of future problems or difficulties.
Control over the Administration in Kosovo
Control over the Administration in Kosovo
(Control over the Administration in Kosovo)
- Author(s):Artan Maloku
- Language:English
- Subject(s):Public Administration, Sociology of Law, Administrative Law
- Page Range:95-104
- No. of Pages:10
- Keywords:control; institutions; external control; internal control; administrative act;
- Summary/Abstract:The administration has a very important role in the functioning of the state, in addition to the special role it has, it must act according to the laws and rules that define the work of the administration. Therefore, in the administration we need supervision or control of the administration. The purpose of this paper is the research related to the notions of the activity of the institutions and the presentation of some acts which have been subjected to the control in the procedure. As for the methodology, we will treat the manuscript according to the historical, analytical, comparative scientific method. In the first part of this paper, we will get to know the role and importance of control in the administration's operation. Further, the paper will deal with the structure of the control elements, explaining what are the subjects, the object and the authorizations of the control which are developed by the concrete institutions where the basis for them is the exercise of control and the operation of legality.
Where Next, Local Self-Governments?
Where Next, Local Self-Governments?
(Where Next, Local Self-Governments?)
- Author(s):Adam Varga
- Language:English
- Subject(s):Public Administration, Sociology of Law, Administrative Law
- Page Range:105-120
- No. of Pages:16
- Keywords:local self-government; local public power; local public affairs; autonomy; subsidiarity; vertical division of power;
- Summary/Abstract:Local self-governments are faced with many challenges in the 21st century. Efficiency plays an increasingly important role in the functioning of public administrations everywhere, and one of the main tasks of public authorities is to provide a good service to citizens. Local communities also expect local self-government to carry out its tasks well. But local self-governance is not just about getting local tasks right; it also necessarily involves making local rules. And all this is carried out by democratically elected bodies. In this paper, I will examine the principles on which we need to look at local selfgovernment if we are to find a place for it in 21st century democracy. I will seek answers to this question primarily by analysing and comparing different terms. In my view, the essence of local self-government cannot be sought in its decentralised nature alone, nor can it be treated as a purely efficiency issue. Local self-governments are also autonomous bodies which, in the principle of subsidiarity, also claim the right to carry out tasks that genuinely serve the local community.
100 Years of Constitutional Regulation of the Romanian Administrative Contentious
100 Years of Constitutional Regulation of the Romanian Administrative Contentious
(100 Years of Constitutional Regulation of the Romanian Administrative Contentious)
- Author(s):Elena Emilia Ștefan
- Language:English
- Subject(s):Constitutional Law, Governance, Sociology of Law, Administrative Law
- Page Range:121-129
- No. of Pages:9
- Keywords:Constitution; Council of State; law; contentious administrative; public authority;
- Summary/Abstract:29 March 2023 will mark 100 years since the adoption of the Romanian Constitution of 1923. In our opinion, that moment had a great emotional charge for generations of patriotic Romanians who contributed to creating the framework suitable for the adoption of this Fundamental Act, those times when the wheel of history was full of unpredictability, after the First World War. The Constitution of 1923 meant a glorious moment for the administrative law: the constitutional regulation of the Romanian contentious administrative. From this point of view, the topic we propose is of present-day, this being a tribute year, but, at the same time, it is important because it proposes a leap in time, by analyzing the moment of the emergence of the contentious administrative in our country, by providing information for the experts in the legal field, but not only. Furthermore, the scope of this paperwork is to document and try to clarify if there was any normative act in force in our country, before the adoption of the Constitution of 1923, which made reference to the contentious administrative and what the respective document included. From this point of view, the structure of the paperwork proposes a number of three sections, in order to fulfill the scope of the research. The final part of the study consists of short conclusions that we have reached after analyzing the proposed topic.
The Compensation Mechanism of Expropriated Pursuant to the Law No. 255/2010. Vulnerabilities and Possible Solutions
The Compensation Mechanism of Expropriated Pursuant to the Law No. 255/2010. Vulnerabilities and Possible Solutions
(The Compensation Mechanism of Expropriated Pursuant to the Law No. 255/2010. Vulnerabilities and Possible Solutions)
- Author(s):Ioan Paraschiv
- Language:English
- Subject(s):Law on Economics, Sociology of Law, Administrative Law
- Page Range:130-145
- No. of Pages:16
- Keywords:expropriation; entitled persons; persons affected by expropriation; compensation mechanism;
- Summary/Abstract:The objective of the study is to analyse the compensation mechanism for the persons affected by the expropriation procedure necessary to achieve the objectives of national interest, according to Law no. 255/2010, highlighting its deficiencies and possible legal remedial solutions. The analysis carried out was based on the deductive method and essentially reveals the fact that in order to respect and strengthen the constitutionally regulated pillars of the compensation mechanism within the expropriation procedure regulated by Law no. 255/2010, respectively of the "just" and "preemptive" character of the compensation of the affected persons, a legislative reform in the field of expropriation is necessary to provide the expropriators with the modern legal instruments, necessary for the fair establishment of compensation even from the administrative phase of the expropriation procedure, with the consequence of increasing confidence in the state institutions that act as expropriators or representatives of the expropriator, relieving the state budget of additional expenses and the courts of disputes that can be prevented.
Controversies Regarding the Withdrawal of the Right of Use over the Land Assigned on the Basis of Law No. 15/2003 Regarding the Support Given to Young People for the Construction of a Personal Property
Controversies Regarding the Withdrawal of the Right of Use over the Land Assigned on the Basis of Law No. 15/2003 Regarding the Support Given to Young People for the Construction of a Personal Property
(Controversies Regarding the Withdrawal of the Right of Use over the Land Assigned on the Basis of Law No. 15/2003 Regarding the Support Given to Young People for the Construction of a Personal Property)
- Author(s):Raluca Laura Păunescu Dornean
- Language:English
- Subject(s):Governance, Public Administration, Sociology of Law, Administrative Law
- Page Range:146-157
- No. of Pages:12
- Keywords:right of use; administrative law; territorial administrative unit; urban planning certificates;
- Summary/Abstract:The main objective of the pending study is to highlight the legal controversies in the situation of the withdrawal of the right of use over the land that was assigned to the beneficiary based on Law no. 15/2003 regarding the support given to young people for the construction of a personal property. Specifically, the author investigates the possibility of establishing the suspension of the one-year term within the mixed resolutive condition stipulated in both art. 6 para. 1 of Law no. 15/2003 which imposes on the beneficiary of the land the obligation to start the construction of the house within one year from the date of allotment of the land and to carry it out in compliance with the provisions of Law no. 50/1991 regarding the authorization of the execution of construction works, republished, with subsequent amendments and additions, as well as in the clauses of the award contract for free use. In the same sense, the fulfillment of the negative condition will be analyzed - as a modality of the civil legal act, namely the fact that the non-start of the construction within the one-year period may be due to the public authority, which, in bad faith, determined the non-realization of the event, by delaying the adoption of the decision of the local council regarding the Urban Planning Regulations, the blocking of the issuance of urban planning certificates/building authorizations and implicitly the impossibility of the beneficiaries to start construction in compliance with the legal provisions. The research methods to achieve the proposed objectives are varied, taking into account the comparative method, as interdisciplinary aspects between administrative law and civil law are exposed, the logical method, which tends to outline a more rigorous legislative exposition, the critical method, with the aim of presenting the limits of discretionary power, as well as the systemic method, which tends to the possibility of bringing scientific research a cardinal importance. The results and implications of the study will be major from the perspective of the application of the law and the interpretation of the legal provisions, taking into account the legal nature of the right to use a land assigned on the basis of the special law.
The Latest Legislative Changes of the Administrative Litigation Law No. 554 of 2004
The Latest Legislative Changes of the Administrative Litigation Law No. 554 of 2004
(The Latest Legislative Changes of the Administrative Litigation Law No. 554 of 2004)
- Author(s):Adriana Deac
- Language:English
- Subject(s):Public Administration, Sociology of Law, Administrative Law
- Page Range:159-170
- No. of Pages:12
- Keywords:administrative litigation; responsibility; head of the institution; regressive action; administrative act; judicial fine; legal person; institution or public authority; final court decision;
- Summary/Abstract:Recently, the Administrative Litigation Law no. 554 of 2004 was amended successively, in a very short period of time. This unusual fact caught my attention and led me to scientifically analyze these legislative changes. It is very true that the entire normative act was not amended, but only certain articles regarding the procedure for resolving administrative law disputes, namely the suspension of the execution of the disputed administrative act, the forced execution of final court decisions and the regressive action granted to the public institution against the official or dignitary who improperly issued, late or did not issue the administrative act in dispute. It is obvious that the changes made to the law were imposed by the practical demands of resolving administrative law disputes. The scientific approach aims to analyze the specific changes made to the Administrative Litigation Law no. 554 of 2004, to criticize them, identifying the positive and negative aspects, if any. Also, considering that jurisprudence was the one that imposed these changes, I will try to identify some court decisions relevant to this scientific approach.
The Impact of Rulings Relating to Questions of Law on Administrative Acts
The Impact of Rulings Relating to Questions of Law on Administrative Acts
(The Impact of Rulings Relating to Questions of Law on Administrative Acts)
- Author(s):Anamaria Groza
- Language:English
- Subject(s):Public Administration, Social development, Sociology of Law, Administrative Law
- Page Range:171-185
- No. of Pages:15
- Keywords:normative pyramid; normative administrative act; preliminary ruling; caducity; nullity;
- Summary/Abstract:To say of law that it is an evolving system is already a truism. The values of society change, and legal rules sooner or later align with the new directions of social development. Legal institutions interact and produce unexpected consequences at the time of their regulation. Such consequences affect the normative pyramid more or less widely, in relation to the level at which the transforming legal event took place. The normative pyramid is readjusting, and the validity of certain normative acts must be reassessed. Such an effect can be produced by the preliminary rulings on questions of law, pronounced by the High Court of Cassation and Justice. The following article presents an analysis of the validity of some normative administrative acts in the context of Decision no. 65/26.10.2020, pronounced by the HCCJ – The Panel for preliminary ruling on questions of law. Our research is descriptive and explanatory, and contains relevant case law. The purpose of the article is to analyze the solutions in case of a conflict between a preliminary ruling and an administrative act. The caducity of the administrative act can be one of them and it is especially entailed by the moment from which the preliminary rulings become binding erga-omnes.
Considerations Regarding the Appeal to the Administrative Court of the Individual Performance Appraisal Report of Civil Servants
Considerations Regarding the Appeal to the Administrative Court of the Individual Performance Appraisal Report of Civil Servants
(Considerations Regarding the Appeal to the Administrative Court of the Individual Performance Appraisal Report of Civil Servants)
- Author(s):Eugenia Iovănaş
- Language:English
- Subject(s):Public Administration, Public Law, Sociology of Law, Administrative Law
- Page Range:186-199
- No. of Pages:14
- Keywords:public office; public servant; professional performance; objectives of the public authority or institution; evaluation report;
- Summary/Abstract:Performance indicators are established to assess the degree to which individual civil servants have achieved their objectives. The setting of individual objectives and performance indicators must be linked to the tasks and objectives of the institution in which the civil servant works. The process of evaluating the individual performance of civil servants shall establish the training requirements for civil servants. The objectives set out in paragraph 1 shall be set out in the following way (1) shall be established in accordance with the duties of the job description, by reference to the public office held, its professional grade, the theoretical and practical knowledge and skills necessary for the performance of the public office held by the civil servant, and shall correspond to the objectives of the department in which the civil servant works. The performance indicators referred to in paragraph 1 shall be those set out in Annex I. (1) shall be established for each individual objective, in accordance with the level of the public office holder's duties, by reference to the requirements of the quantity and quality of the work performed. In all cases, the individual objectives and performance indicators shall be made known to the public servant at the beginning of the period under evaluation. In this article, we propose to discuss relevant aspects of the analysis of the annual individual performance appraisal report of civil servants, by analysing the two methodologies for the annual performance appraisal of civil servants, as described above, with reference to the relevant judicial practice.
The Administrative Court System and Its Impact on Albanian Private Entities
The Administrative Court System and Its Impact on Albanian Private Entities
(The Administrative Court System and Its Impact on Albanian Private Entities)
- Author(s):Linert Lirëza
- Language:English
- Subject(s):Public Administration, Sociology of Law, Administrative Law
- Page Range:200-208
- No. of Pages:9
- Keywords:administrative court; private entities; judicial control; access to justice;
- Summary/Abstract:The establishment of Administrative Courts in Albania is an important step done in the justice system. The law on administrative courts approved by the Assembly was expected to strengthen the justice system of the country, improve access to justice for citizens and businesses, and facilitate faster procedural actions and trials. Administrative Courts decisions have a direct influence in creating an appropriate climate between public administration and private entities and solving with efficiency the disputes between them. This reform was considered as necessity with the sole purpose of creating a more peaceful climate for the progress of the reports between Public Administration and Private Entities. The purpose of this paper is to investigate the impact of administrative court on Albanian private entities. The Law on Administrative Courts has defined and directed the limits of judicial control over the legality of administrative actions towards three aspects: facts, time and discretionary power. The paper analyzes the activity of the Administrative Court and innovations of this law. Judicial control constitutes the strongest guarantee for individuals in their dealings with the administration in particular and with any public powers in general that their rights will be upheld. At the end, the paper presents the findings produced by survey data collected.
Authority of Res Judicata of the Decision of the Administrative Court before the Criminal Court
Authority of Res Judicata of the Decision of the Administrative Court before the Criminal Court
(Authority of Res Judicata of the Decision of the Administrative Court before the Criminal Court)
- Author(s):Costel Cristinel Ghigheci, Vlad Mihai Neagoe
- Language:English
- Subject(s):Sociology of Law, Court case, Administrative Law
- Page Range:209-227
- No. of Pages:19
- Keywords:res judicata; preliminary issue in criminal proceedings; administrative litigation; suspension of proceedings;
- Summary/Abstract:A long-standing issue discussed in judicial practice is that of the effects that a final judgment of an administrative court should have when it has decided a question of fact or law that would be relevant to the existence of an offence that is the subject of a criminal case. The restriction before the criminal court of the authority of res judicata of a judgment of the civil court relating to a preliminary issue in criminal proceedings – in view of valid, substantial and compelling reasons, such as the lack of identity of the parties (including the prosecutor), the differences between the two actions, the distinction between the legal interests protected and the application of the principle that fraud corrupts everything (fraus omnia corrumpit) – is without prejudice to the principle of legal certainty as the basis of res judicata. From an objective point of view, the criminal court, which has the benefit of specific procedural means and special procedural safeguards, would have the power to overturn the civil court’s ruling in order to restore legality and not to abolish the legal relationships established on the basis of the civil judgment. From a subjective point of view, the person concerned would have no legitimate expectation of opposing in criminal proceedings the right he had won before the civil court, since the fundamental differences between criminal proceedings and civil proceedings are well known.
