Răspunderea autorităților în Noua Filozofie a Codului Administrativ. Cod civil versus Cod administrativ. Puncte de „intersecție”

Author(s): Liliana Cătălina Alexe / Language(s): Romanian Issue: 03/2022

Society has always been concerned with the issue of liability. "Responding" was and still is an imperative of society. In our law there was no express regulation of the administration's liability for its illegal acts. However, there are a series of decisions of the High Court of Cassation and Justice that decided to engage the state's liability even in the conditions where it could not be imputed to it, the damage being caused in the exercise of a normal and legal activity. For the first time this type of liability – administrative – is dealt with in the provisions of the Administrative Code. The present article will ask the question whether this intervention was (imperially) necessary or the existing legal instruments (Law no 554/2004 on administrative litigation, the Civil Code and judicial practice) were sufficient in determining the scope of the subjects and the particular conditions in which they respond or this legislative activity, as the main way of implementing public policies, should have provided necessary, precise, concrete tools for the solutions pronounced in the matter of liability.

Nulitatea de formă a actelor administrative privind raportul de serviciu al funcționarilor publici în lumina prevederilor Codului administrativ

Author(s): Mirela Monica Perjaru / Language(s): Romanian Issue: 03/2022

The present study represents an analysis of the institution of formal nullity of administrative acts regarding the public servant’s duty relationship, respectively of the provisions of art. 535 of Emergency Government Ordinance (EGO) no. 57/2019 regarding the Administrative Code, by reference both to the special legislation in the matter of administrative litigation and the applicable general legislation, including a theoretical approach as well as a practical one. Repealing the provisions of Law no. 188/1999 regarding the public servant’s duty relationship, the Administrative Code establishes a series of procedural formalities common to several administrative acts regarding the public servant’s duty relationship, regulating the sanction and its mode of operation in the event of non-fulfillment of the formal requirements established by art. 528-533. Although the text of article 535 is concise and easy to read, it was found that in practice its interpretation is not uniform. Thus, despite the fact that the regulation expressly provides for the sanction of legal nullity in the event of non-compliance with certain legal provisions regarding the form of administrative acts regarding the public servant’s duty relationship, nullity to be found by the administrative litigation court, the study proposes to present an interpretation nuanced in the sense that the sanction of nullity: – cannot be ordered for the hypotheses regulated in art. 528 para. 3-8 because the non-communication of administrative acts is, in principle, sanctioned with unenforceability, not with nullity; – cannot be ordered for the omission of any ot the formalities mentioned in art. 529-533, but only for non-compliance with the legal norms that provide for essential provisions, being conditioned by damage that can only be removed by abolishing the act; – is not established, but ordered by the court. The study has theoretical and practical importance, from the perspective of the novelty of the legal issues in the analysis, proposing to determine a debate on some interesting topics, aiming to contribute to the outline of a unified interpretation of the legal provisions, aspect justified by the variety of solutions identified in the specific practice of the administrative litigation courts regarding the cases that have as their object the public servant’s duty relationship.

Considerații asupra materiei funcţionarilor publici – examen legal şi al jurisprudenţei Curţii Constituţionale

Author(s): Marian Enache,Verginia Vedinas / Language(s): Romanian Issue: 03/2022

This study aims to review the jurisprudence of the Constitutional Court regarding the legal status of public servants. This is one of the institutions under debated by administrative law specialists, also claimed by labour law theorists and perhaps this is the reason behind the rich content of the Constitutional Court's jurisprudence on the matter. Many of the Constitutional Court's decisions have been generated precisely by the confrontation between the legal situation of civil servants and that of contractual staff, in matters concerning pension rights, the competence of the courts to adjudicate disputes and other similar matters. The Constitutional Court, through its case law, has settled not only specific issues, but also issues of principle, such as the category of legal act regulating matters like the evaluation or disciplinary liability of civil servants. This has led to the Administrative Code being supplemented with new annexes to regulate these dimensions of the legal status of public servants.

Corelația dintre actele administrative și operațiunile administrative, ca forme de activitate ale autorităților publice

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 03/2022

This study aims to analyse the two main forms of public authority activity, namely administrative acts and administrative operations, with the caveat that these are not the only ways in which the activity of public authorities takes shape. They also issue, adopt or conclude other categories of acts, which are subject to the private law or public law regime, such as unilateral acts under common law, civil contracts, administrative contracts, material acts, provision of public services. Among these, the study focuses on administrative acts and the concern to address this topic arises from the fact that in practice, both administrative and judicial, we have found the perception that, in some situations, administrative acts specific to a public entity are legal acts, and in other situations, they do not have this quality, as they are administrative operations. Such a hypothesis, in our opinion, which we will justify in the present study, is not sustainable, for the reasons we will develop below.

Impactul digitalizării activității administrației publice asupra actului administrativ. Aspecte normative, jurisprudențiale și din perspectiva codificării procedurii administrative

Author(s): Emilia Lucia Cătană / Language(s): Romanian Issue: 03/2022

This study aims to analyze the impact of the digitization of public administration activity on the administrative act, in an interdisciplinary approach: normative, case-law and from the perspective of the codification of the administrative procedure. The discussions are generated by a paradigm shift, from the classical administrative act, exclusively in printed form, to the alternative or even to the rule of its electronic form, with electronic signature and no classic stamp. This paradigm shift is a challenge for doctrine, public administration practitioners, individuals and courts, in particular in the current context of the codification of the legislation governing the public administration activity.

Dreptul administrativ român la cumpăna dintre milenii, veacuri și regimuri politice

Author(s): Verginia Vedinas / Language(s): Romanian Issue: 04/2022

Subiectul pe care vi-l propunem „încolțise” de ceva vreme în preocupările noastre. Aștepta doar momentul să fie „însămânțat” și ce moment ar putea fi mai potrivit decât acela când o instituție de învățământ te înnobilează cu un asemenea titlu? Și nu orice instituție, ci o universitate prestigioasă, care poartă numele poetului latin Publius Ovidius Naso, poetul iubirii, al tristeților și al metamorfozelor. Și care are în structura sa o facultate de drept pe care o prețuim cu asupră de măsură și care s-a învrednicit să ne aleagă, să ne prețuiască, să ne onoreze.

Conferința Internațională a Academiei Europei ( A.E.) „Building Bridges 2022’’ – Câteva însemnări privind relația dintre știință și cunoașterea dreptului

Author(s): Ion Craiovan / Language(s): Romanian Issue: 04/2022

Academia Europei – Academia Europaea – a fost fundată în anul 1988 la inițiativa Societății Regale din Marea Britanie și a altor academii naționale din Europa. Ea cuprinde în prezent peste 5.000 de membri, dintre care peste 70 de laureați ai Premiului Nobel, din statele care fac parte din Consiliul Europei și din alte state ale lumii. România are în A.E. 33 de membri(1 oct. 2022). Conferința internațională anuală a A.E. Building Bridges 2022 a avut loc în Barcelona. În cadrul secțiunilor reunite A1 – științe umaniste și A2 – științe sociale și conexe care cuprinde și secțiunea „Drept”, am prezentat o informare privind Congresul mondial de filosofie a dreptului și filosofie socială (IVR), care a avut loc în București, în perioada 3-8 iulie 2022, menționând că au participat circa 500 de persoane din 40 de țări, și coordonatele fundamentale ale acestui eveniment științific internațional.

Conferința națională „Contenciosul administrativ”, ediția a III-a

Author(s): Cristian Dumitru Miheş / Language(s): Romanian Issue: 04/2022

Facultatea de Drept a Universității din Oradea a organizat în data de 9 decembrie 2022, conferința națională „Contenciosul administrativ”, eveniment aflat la a III-a ediție. Acest eveniment, alături de altele, organizate pe parcursul anului universitar 2022/2023, se înscrie în seria manifestărilor dedicate aniversării celor 30 de ani de la reluarea învățământului superior juridic la Oradea. Ideea unei conferințe de contencios administrativ și la Oradea, s-a concretizat în urmă cu 3 ani, iar de atunci se reunesc aici, la Oradea, reputați profesori și specialiști din domeniul dreptului administrativ, cu un focus important spre contenciosul administrativ, care dezbat teme de interes pentru societatea românească.

Ogólnopolska Konferencja Naukowa „Kryzys autorytetu – o potrzebie autorytetu w prawie i w społeczeństwie”, 20 października 2021 roku (webinarium)

Author(s): Łukasz Bartosik,Jakub Cieśla / Language(s): Polish Issue: 38 (2)/2022

I Konsiliencyjna Konferencja Kosmiczna, Gdańsk, 26–28 listopada 2021 roku

Author(s): Dominika Skoczylas / Language(s): Polish Issue: 38 (2)/2022

Law, Values and State: The Fundaments of Derivation Theories

Author(s): Alexandre de Lima Castro Tranjan / Language(s): English Issue: 34/2022

This paper aims to discuss the material determinations of systems of law and values in contemporary societies. Sustained upon a combined analysis of Pashukanis and Althusser, we criticise the positivist theories of Kelsen and Hart due to the emptiness of what these latter postulate as the bedrock of legal systems. Norms are argued, contrarily to what positivist authors defended, to be a secondary aspect of law, essentially characterized by the relations it comprehends between legal subjects, that take place in an economy of production and exchange of value between formally free and equal subjects. Thus, legal subjectivity-form mirrors commodity form, for it is logically necessary for contracts to be celebrated from the will of the parties. Otherwise, the situation would be only of imposition by force. In the last section of the paper, the ideological origin of the will and the values shared among the people is discussed.

Reflection on Nigeria’s Air Pollution Regulations with a View to Learning from the European Union

Author(s): Adeola Olufunke Kehinde,Ifedapo Oluwakemisola Osadola,Adebusola Awonuga / Language(s): English Issue: 1/2023

The effects of air pollution on all people across the globe cannot be overemphasized. It is a phenomenon that needs urgent attention from all countries of the world. Serious efforts must be made to cut down the greenhouse gas emissions by all nations so as to reduce the menace of air pollution. Various countries including developed, developing and under developed are making efforts to tighten the control of pollution so as to ensure that the rate at which people are exposed to pollutants across their cities are reduced, but in spite of all these efforts, the level of pollution all over the world seems to be going higher, Nigeria inclusive. The level of pollution in Nigeria is still very high and there seems to be no solution around the corner. The World Health Organization (WHO) has noted that each year, air pollution is responsible for nearly seven million deaths around the globe. This shows the extent to which air pollution has wrecked and is wreaking havoc on the entire world. This article is necessary at this time as it has been noted that there is no concrete legal framework in Nigeria which addresses air pollution. The existing laws regarding environmental protection are grossly inadequate to take care of the level at which air pollution is ravaging Nigeria as a country; also, the existing laws lack enforcement mechanism. There is a need for the Nigeria government to come up with a standard and adequate law to tackle the menace of air pollution in Nigeria and the country must be ready to ensure that the laws made are adequately enforced. This article examines what air pollution is all about and its effects on human beings and the Nigeria environment at large bringing out lessons Nigeria can learn from the EU.

Analysis of Electoral Process and Their Relationship with Democracy and Economic Index in the Balkan Countries, 2011–2021

Author(s): Andon Kume,Olta Qejvani / Language(s): English Issue: 1/2023

The results of a comparative analysis based on the Electoral Integrity Index, evaluated for the period 2011–2021 in the Balkan countries are this paper’s objectives. Referring to perceptions of the level of fulfillment of international standards for democratic elections (PEI), the Balkan region is classified in the group of countries belonging to the “Moderate” category. In the Balkan countries, the positive relationship between the electoral process and the development of liberal democracy is evident, while the level of corruption is a factor that has a significant effect on the electoral process. Clusters analysis performed using estimates of distances between indicators related to the electoral process, the development of a liberal democracy, general economic development and the level of corruption present significant distances. The development of liberal democracy in Balkan countries is conditioned by the level of realization of synergy in the interaction between different factors. This paper aims to identify the legal framework in the details of Balkan countries related to electoral reform, going through recommendations through comparison and quantitative methodology and bringing Czech legislative dimension as a smart solution of problems that countries face in the electoral process.

State Aid - Commitment to join the European Union

Author(s): Olesea Lungu / Language(s): Romanian Issue: 1/2022

The Vector of European Integration is one of the priority directions of the policy of the Republic of Moldova. In order to achieve this goal, the Republic of Moldova has made several commitments through Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (ratified by Law no.112/2014). Through the Association Agreement, the Republic of Moldova has made commitments in the field of state aid, including in respect of state aid monitoring. Monitoring state aid is a complex process, the correctness of the performance of which depends not only on the efficiency of the use of public resources and preventing significant distortion of the competition environment, but and the level of fulfillment of international commitments.

Teologiczne i jurydyczne fundamenty definicji małżeństwa występującej w Kodeksie Prawa Kanonicznego z roku 1983 (kan. 1055)

Author(s): Mateusz Sajkowski / Language(s): Polish Issue: 38/2022

This paper is a contribution to the scientific discourse on the subject of Canon 1055 of the Code of Canon Law promulgated by Pope John Paul II in 1983. The research problems raised are focused upon the analysis of the relevant terms of the amalgamate of theological and legal contents contained in them, which may both be equally important. It is accepted in accordance with the canonistic doctrine that Canon 1055, being the first in titulus VII De matrimonio, is a legal definition of marriage; and consequently, the context in which all other norms of substantive conjugal law are to be interpreted as an important part of the system of ecclesiastical law. As a novelty for the science of canon law, such provisions are included within the scope of valid and binding codified laws. As recently as in Codex Iuris Canonici of 1917, a similar canon providing a synthetic presentation of the basic truths relevant to marriage, as interpreted by the Church, was not included. Permeated with pastoral spirit, each and every of the elements constituting Canon 1055 refers to a different aspect of a marital relationship and aptly combines the juridical threads typical of the classical Canon Law and the doctrine of the Second Ecumenical Council of the Vatican. Such a manner of approaching the issue seems to be indispensable as a way to reflect the vast significance of marriage and to avoid treating the institution of marriage superficially. This paper, in addition to presenting the important purposes of marriage and its sacramental dignity, pays particular attention is paid to describing the theological and legal content of the following terms: ‘covenant’ (foedus) and ‘the partnership of the whole of life of a man and a woman’ (consortium omnis vitae viri et mulieris).

МЕЂУНАРОДНО-ПРАВНИ АСПЕКТИ АНГАЖОВАЊА ДЕЦЕ У МЕђУНАРОДНИМ ОРУЖАНИМ СУКОБИМА

Author(s): Zoran Vučinić / Language(s): Serbian Issue: 1/1989

The Meaning of the Likelihood of Severe Penalty Being Imposed upon the Accused in Making a Decision on Pre-trial Detention

Author(s): Szymon Tarapata / Language(s): English Issue: 3/2022

This article is of a scientific nature, that employs a dogmatic method. The aim of the study is to establish the status and function of the severity of penalty under Article 258 § 2 of the Code of Criminal Procedure (hereinafter: the CCP) in making decisions on the application of pre-trial detention. This issue is controversial both in doctrine and jurisprudence. The text presents a new approach that Article 258 § 2 of the CCP does not set out a specific premise for the imposition of pre-trial detention. This provision cannot express an independent criterion for imposing the most severe preventive measure as Article 258 § 2 of the CCP is of auxiliary character. It expresses an auxiliary criterion for determining whether the special premises for imposing pre-trial detention under Article 258 § 2 of the CCP have been realized. The proposals contained in the article are intended to facilitate the interpretation of national provisions on coercive measures and to facilitate their application in the practice of the judiciary. The article indicates the factors that are important in assessing whether the likelihood of imposing severe punishment crystalizes the risk of fleeing, hiding or obstructing justice. For the application of pre-trial detention there may be arguments, i.a., pertaining to the nature of the offense alleged. In this context, it should be important whether the potential perpetrator is charged with a crime with a use of violence or threat thereof. His posture in the course of criminal proceedings so far is also not without significance. It may be, however, that the likelihood of imposing severe penalty may give rise to the fear of obstruction of justice even in a situation where the accused, who knew about the pending criminal case, did not take any unlawful action. Nevertheless, the correct posture of the accused in the course of criminal proceedings will often be a significant factor against the use of pre-trial detention.

The Petitions Committee of the Polish Parliament (Sejm) – the Legal Basis and Practice of Functioning

Author(s): Piotr Kędziora / Language(s): English Issue: 5/2022

The article is intended to present the procedural solutions adopted in the Polish Sejm’s Rules of Procedure, the purpose of which was to specify in detail the procedure for hearing petitions in the Sejm, and thus to put the constitutional right of petition into effect. The author refers to historical attempts to statutorily regulate the petition hearing procedure. Remarks on the current statutory basis for filing petitions with the Sejm and the rules on consideration of petitions by the Sejm bodies – the Marshal of the Sejm and the Petitions Committee, are presented in the context of parliamentary practice during recent years. The author presents statistical data on petitions submitted for consideration by the Petitions Committee and the most frequently used manners of processing them in the practice of petition handling. Comments for the law as it should stand regarding the procedure for hearing petitions in the Sejm, which have been the subject of consideration in recent years, are also presented.

Citizens’ Resolution Initiative of the Inhabitants of Local Government Units in Poland

Author(s): Joanna Kielin-Maziarz,Krzysztof Skotnicki / Language(s): English Issue: 5/2022

One of the consequences of the political changes in Poland after 1989 was granting citizens the right to initiate legal acts. It has activated society’s participation in public life and contributed to building a civil society. In 1994, a citizens’ constitutional initiative was established, and, in 1997, a citizens’ legislative initiative was undertaken. The aim of the study was to present the citizens’ initiative of resolution of the inhabitants of local government units in Poland. Originally, it functioned without a statutory basis and was established by the local government units themselves. This raised doubts as to its legitimacy, which was also reflected in the judgments of voivodeship administrative courts. The practice was in favor of its universal establishment, and it also became increasingly popular, especially in communes. In 2018, all local government laws were amended to grant the residents of all local government units in Poland the option of submitting a citizens’ initiative, and it is only up to their activity whether they will exercise this right.

Participation of the Polish Senate in the Legislative Process: Towards Equal Bicameralism?

Author(s): Sławomir Patyra / Language(s): English Issue: 5/2022

The article deals with the issue of relations between the Sejm and the Senate in the procedure of exercising its legislative function by the parliament. The author points out that the current Constitution of the Republic of Poland of 2 April 1997 greatly limits the influence of the Senate on the legislative process, which refers to the Polish systemic tradition. In this way, the Constitution adopts an extremely asymmetric bicameral model, despite the fact that both chambers of parliament in the Polish system are perceived as an organ of the legislative authority. The author critically assesses the regulations in force from the point of view of the axiology of the democratic system and postulates strengthening the Senate’s position in the implementation of the legislative function.