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An atypical situation, rarely encountered in the area of offenders who exercise the means of appeal of the contraventional complaint in the field of traffic on public roads, has generated controversies regarding the interpretation of Article 118 of the Government Emergency Ordinance No 195/2002, including of the rules of application contained in the Order No 141/2014, to which there are added other problems of interpretation and suspicions of unconstitutionality of Article 103 (2) of the Government Emergency Ordinance No 195/2002, which regulate extension of the duration of the suspension of exercising the right to drive vehicles on public roads by another 30 days, if, within a period of 6 months from committing a contravention, a driver commits another contravention to the traffic rules. Although it is well known that the overwhelming majority of offenders who are subject to the complementary sanction of suspension of the right to drive motor vehicles, agricultural or forestry tractors or trams, this being the full name of this complementary sanction, file a complaint in order to benefit from the suspension of the execution of this complementary sanction, the judicial practice has revealed that there are also cases in which such offenders, for well-justified reasons, renounce this benefit and begin the execution of the complementary contraventional sanction, even if they have exercised the mentioned means of appeal. As the practice of the police units that manage the IT application for keeping records of withheld licenses and sanctions applied to the drivers of motor vehicles or trams is to register ex officio that they are operating the suspension of execution of the complementary sanction, when they receive the alert that the contraventional complaint has been filed, although Article 118 (3) of the Government Emergency Ordinance No 195/2002 establishes that the offender applicant is the one who must submit/send to the police unit of which the fact-finding agent is a part the document certifying the situation of filing the complaint and only after this step it will be made the corresponding mention of the suspension of the execution of this sanction, the question of violation of the right of access to justice arises. Such a violation derives from the situation that the offender in question faces the situation to waive the right to exercise the means of appeal of the contraventional complaint, in order to „immediately" execute the sanction, due to the uncertainty of the duration of the related judicial proceedings as well. If such offenders will take the risk and will file a complaint, also formulating a request with the aim of obtaining in due time a court decision ordering the entry of the mention that they started the execution simultaneously with the filing of the complaint, as it will result from the court decisions used as judicial practice, they will face the exception of inadmissibility. Finally, the text of Article 103 (2) of the Government Emergency Ordinance No 195/2002, which regulates the extension of the duration of the suspension of the right to drive vehicles on public roads by another 30 days in the case of committing a new contravention, evokes the institution of „contraventional recidivism" and it must be analyzed whether this institution finds its place in the matter of contraventions, under the conditions in which the institution in question has applicability only in the field of traffic on public roads, raising discussions as to whether such regulation is constitutional. Controversial is also the nature of the 15-day term established by the legislator for the communication of the extension provision implied by this text in the context in which the legislator did not regulate the consequences of its non-compliance, as it did in the case of the communication of the contraventional fact-finding report, for the latter establishing the prescription for the execution of contraventional sanctions. Last but not least, it arouses interest to what extent the principle of loyalty of evidence finds its place in the context of traffic contraventions. [ABSTRACT FROM AUTHOR]

The second part of the topic generated by the approach to the specifics of the nullity of the fiscal procedure acts, as they were delimited in the first part, is intended for the application of the annulment cases, delimited, in particular, by the French doctrine of administrative law, to the fiscal administrative act. Beforehand, there are required references to the problems generated by the approaches from the French doctrine aimed at identifying the generic cases of annulment in relation to the way in which nullity is regulated in the rules of the Fiscal Procedure Code. In the context of the discussions concerning the relative nullity, the correct relationship between the notions of „nullity”, „annulability” and „annulment” must be clarified. Thus, in the comments concerning Article 49 of the Fiscal Procedure Code, differentiating between nullity and annulability, in the claim that the latter would constitute the „attribute” of the administrative acts affected by flaws of unlawfulness arising from the non-compliance with some validity conditions of lesser importance, it is evoked the thesis of the supporters of the presence of relative nullity including in the matter of administrative acts. However, the relative nullity is not compatible with the public interest on the basis of which any rule of administrative law is enacted. In order to avoid any confusions, the term „nullity” must denote the organic state of the act affected by serious defects of unlawfulness arising from the non-compliance with the conditions of validity specific to each category of legal acts, the term „annulability”, particularized, as a rule, in the wording „are annulable”, must be used to denote virtual nullities, and the word „annulment”, only to evoke the approach of the authorities to proceed with the annulment of legal acts affected by the flaws/defects of unlawfulness likely to generate their nullity. Given that, in the tax law doctrine, there are opinions evoking the support for the theory of the presence of legal non-existence and of relative nullity, it must be checked to what extent they can find their place in the matter of fiscal administrative acts. Although the doctrine in the matter contains tangential references to the non-existence, when commenting on the fiscal procedural texts referring to the communication of the fiscal administrative act, there is no regulation that expressly refers to the non-existence of such acts, as the legislator proceeded when specifying the sanction applicable to some administrative acts (the decisions and ordinances of the Government, as well as the decisions of the Prime Minister) not published in the Official Gazette of Romania. [ABSTRACT FROM AUTHOR]

The value added tax (V.A.T.) collection mechanism reveals the existence of two categories of subjects involved in the legal relations connected thereto: V.A.T. collectors and V.A.T. payers, the last phrase designating the persons whose patrimony actually bear the burden of this indirect tax. Although all these subjects carry out V.A.T. payment operations, due to the establishment of the right to deduct V.A.T., the mentioned differentiation can be made. If it is easy to identify the V.A.T. payer in whose patrimony it is finally reflected the cost of this fiscal obligation, the other category, catalogued with the phrase „V.A.T. collectors", these being the holders of the right to deduct V.A.T., involves difficulties in verifying the fulfilment of the conditions imposed for the exercise of this right. For the return by the Tax Office of the amounts paid by the holders of the right to deduct V.A.T. it was established by the Court of Justice of the European Community the principle of the economic prevalence over the legal one, which requires to sacrifice some norms concerning the formal conditions necessary to be met for the exercise of the right to deduct V.A.T., in favour of the economic reality of the technical-material operations susceptible to return V.A.T. related thereto. Given the difficulties generated by the application of this principle, it is necessary to identify the logics of the applicability of the right to deduct V.A.T. in the mechanism of its collection in the context of the stated principle. [ABSTRACT FROM AUTHOR]

As by Article 24 of the Law No 140/2022 the legislator imposed on the National Authority for the Protection of the Rights of Persons with Disabilities and the Superior Council of the Magistracy obligations aimed at assessing the impact of this normative act, accompanied by possible proposals for its improvement, it is obvious that the legislator itself did not exclude that his legislative work does not constitute the masterpiece in the field. In this context, the present approach is intended to continue to emphasize, by the doctrine, some shortcomings of the Law No 140/2022 and to already propose a genuine reform in the matter. In the spirit of respecting the right to dignity of the persons with severe intellectual and psychosocial disabilities, a right that requires that a person who has acquired by law a full capacity of exercise should not be subjected to the degrading treatment of losing, totally or partially, this capacity, in the following we propose to be introduced, in the matter of capacity of exercise, the institutions of assisted capacity of exercise and of supervised capacity of exercise. Consequently, it required either the replacement of the institution of guardianship with the existing one, that of the personal assistant, as the case may be, of the professional personal assistant, or a specialization in the matter of guardianship, for such persons, of the sort of administrative guardianship. [ABSTRACT FROM AUTHOR]

Article 78 of the Civil Procedure Code, paradoxically, evokes through its title an apparent exception to the principle of availability, however, through its content, it constitutes a confirmation of this principle. Given this apparent contradiction, it must be clarified whether, in the case provided in Article 78 (2) of the Civil Procedure Code, the party requesting the introduction of the third party in the trial after the judge has questioned the necessity of its introduction may formulate any new heads of claim involved in the enlargement, in this way, of the procedural framework. Also due to the phrase „ex officio" attached to this introduction, it must be concluded whether, for these possible new heads of claim, related to the introductory request, the requesting party must pay judicial stamp duty or, due to this reference to officiality, the party is exempted from such obligation. It must also be established whether to these new heads of claim it can be opposed the exception implied by the sanction of loss, referred to in Article 204 of the Civil Procedure Code, in the conditions in which they would be related to the introductory request. Finally, it must be emphasized the relation that exists between this institution and the one related to the forms of forced intervention of common law. Last but not least, it is necessary to make an inventory of the generic cases of applicability of this new institution, cases revealed by the judicial practice and which allow the verification of the presented conclusions. With reference to the conclusions, they converge towards the thesis that the possible new heads of claim involved by the introduction of the third party in this way in the trial are admissible in principle, that they are subject to stamping, because there is a necessary relationship between this „ex officio" introduction of a third party in the trial and the other forms of forced intervention regulated by the legislator, that, for these, it becomes opposable a new first term which runs from the communication of the request related to the application for introduction and only related thereto and to the new heads of claim Article 204 of the Civil Procedure Code regarding the sanction of loss may be applied. [ABSTRACT FROM AUTHOR]

The recordings made by technical means have not constituted, at least in civil matters, ever since the appearance of the devices that made them possible, an admissible evidence, not being regulated as such by the legislator in the past. In the new regulations, starting with the Law No 217/2003, including in the new Civil Procedure Code, in the conditions of the extended use of electronic means, both in the institutional framework and in the private life, the daily realities have imposed the use of the recordings with technical means as evidence. However, by operating a generalization, the possibility that the data of any kind to be fixed on a computer-based media has led to the penetration of this kind of probation both in the evidence with written documents, in the form of computer-based written documents, and in that of material means of evidence. The inclusion of the recordings, generically speaking, also in the category of material means of evidence generates problems both in terms of identifying their legal nature, with implications on their administration and storage regime, and in terms of establishing their admissibility conditions. The latter also raise the question of establishing the extent of the probationary area related thereto, respectively whether it should be restricted only to proving those legal relations which the facts of legal relevance involve, as well as which categories among these fall within the scope of circumstances likely to be proved in this way. For this purpose, but also in order to establish the meaning of the phrases that individualize such evidence, as the civil processual legislation is lapidary, it was necessary an incursion into the criminal processual one, a necessary approach inclusively in order to establish the legal regime related thereto. Finally, the issue of the legal regime of their preservation was also addressed. Two generic conclusions were distinguished, namely that, by this type of evidence, only legal facts can be proved, especially those generating legal liability, and that such evidence is admissible, in principle, under the conditions of the admissibility of the evidence with witnesses. [ABSTRACT FROM AUTHOR]

The manner of regulating the contestation of the claim in the payment order procedure, generates a few controversies, indicated by the doctrine related to this procedure. Thus, the first of these concerns the contestation of the claim after the deadline for the submission of the claim is exhausted, in case the debtor does not meet or does not respect the related time limit, namely the admissibility in principle of such a contestation. The answer is affirmative, but with nuances; the claim can also be contested in such a situation, but only by way of pleas of public order, of the plea of inadmissibility due to the necessity to administer some evidence incompatible with the payment order procedure or through defences on the merits, which will be justified only by the evidence administered until the moment when the claim is contested. Operating an analogy of study with the contestation to enforcement, considered as a contestation to title, it is necessary to specify whether the legislator's generic references to the contestation of the claim concerns the situation of a contestation to the title related to the claim inclusively. The conclusion is that the legislator has used the term „contestation“ in its meaning lato sensu, consequently the answer is affirmative. Another controversy concerns the situations when the debtor does not specify his procedural position throughout the procedure, that is, if the judge of the case is authorized to question ex officio the possible reasons that would constitute such contestation to the claim. The conclusion of the study, derived also from the European legislation and judicial practice, is that the answer is still affirmative, but only provided that there is an express regulation imposing such an obligation for the judge of the case, such as in the situation of abusive contractual clauses. In the absence of any reference of the legislator within the regulation of the payment order procedure to the counterclaim, it is necessary to answer whether the institution of the counterclaim, regulated under the common law procedure, is compatible with this special procedure. Although there is no prohibitive regulation in this procedure, an overall analysis thereof justifies the conclusion that such requests are incompatible with the payment order procedure. From the examination of the judicial practice, the generic cases related to the contestation in question were summarized, depending on their nature. As the contracts related to the claims compatible with this procedure are susceptible to contain abusive clauses, it is required an answer to the question whether, in the presence of such clauses, the legal regime related to this procedure allows the judge to invoke ex officio and rule on their abusive character, or, in such cases, the application to issue the payment order must be rejected as inadmissible. Due to the need to introduce in the case the transferor of the claim, most of the debts of this kind being transferred, and due to the analysis imposed by such a clause, it was concluded that, the payment order procedure having a pronounced formal character, the last variant is justified. Finally, there were presented arguments of principle regarding the abusive nature of the clauses related to the compensations requested, including in this way, by the telecommunication service providers or by the assignors, for stopping the performance of the contract by the beneficiary before the deadline stipulated therein. [ABSTRACT FROM AUTHOR]

For the appeal, which generates, in principle, a new judgment on the merits, given also the finality of exercising the appeal - the nullity of the judgment challenged - it is required another approach to the cases of nullity different than the traditional one in the matter of procedural acts. For the situation of referral of the case for retrial, it is required to argue that it is necessary to specify, in the judgment of referral, where appropriate, the part which is cancelled from the procedure followed by the court of first instance, respectively of the procedural act from which the retrial begins. [ABSTRACT FROM AUTHOR]

The imperative to not let the governors and the governed persons commit any abuses has generated a specific manner of regulation of the organization of public assemblies, especially when they take place in public. The result of this regulation which, although it does not expressly provide the condition of authorising the organization and the conduct of these public assemblies, contains it nevertheless by default, has implications on the problem of the administrative authorizations. This result is the specific manner of establishing a required authorization that is not included within the scope of express authorizations or in the one related to the tacit approval procedure, placed, as well as the latter, in the sphere of legal fictions. Whereas given the state of law and a genuine democracy it can not be explained the reaction of the authorities when they face the situation of spontaneous public assemblies, their regulation at legal level is required as well. [ABSTRACT FROM AUTHOR]

The judicial practice in the matter of representation, including in that of the Supreme Court, reveals difficulties in interpreting Article 84 (1) of the Civil Procedure Code. A poor interpretation thereof, by ignoring ratio legis, creates a gap for the illegal practice of the specialized legal professions. In the same context, it is necessary to distinguish between the plea of lack of evidence of the quality of representative and that of illegal representation, and the latter must be preceded by the plea on the nullity of the contract from which the judicial mandate arises. [ABSTRACT FROM AUTHOR]

Important matters of law generate the verification of the legality of the acts of the legal persons of private law specified in the title. Such verification, as revealed by the judicial practice in this matter, involves the relation of the theory concerning the legal acts within the scope of public law to the corresponding theory within the private law. This interdisciplinary approach is necessary in order to correctly identify the conditions of validity related to the legal acts qualified as being acts of authority, given their nature, purpose and addressees. [ABSTRACT FROM AUTHOR]

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In this study the author examines the provisions of the new (Romanian) Civil Procedure Code referring to the verification of the application for summons and its regularisation by the law court, in the light of the procedures of the same code which regulate the nullity of procedural acts. [ABSTRACT FROM AUTHOR]