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Section 8. Science of law
Menga Irisi, European University of Tirana PhD Candidate in Law lowyer, Municipality of Kurbin E-mail: irismenga@live.com
Insurance claim in administrative disputes resolution
Abstract: To write an article about the institution of insurance claim litigation in administrative judgment, we must also tackle a comparative overview regarding the provision of the claim in the trial of civil cases, harmonized with unifying judicial practice. To have a broader approach, we can not simply refer to any specific provisions of law (No. 49/2012), which regulates the procedural vehicle insurance claim [1]. This article is intended precisely to address first the concept of insurance claim, secondly insurance claim in the judicial process and administrative/types of security measures of the lawsuit, and finally comparative overview of insurance claim in the judicial process administrative and civil as well as the unification of jurisprudence in relation to the provision of the claim.
Keywords: Securing the lawsuit, the types of security measures of the lawsuit, administrative dispute, suspend administrative act, warranty, non-final decisions, civil disputes, administrative courts, administrative activities etc.
Insurance claim
The insurance claim is a security system of judicial procedural institutes, a procedural tool, temporary, dictated by emergency circumstances, which may be requested by any party litigant in a judicial process. Given that, a court decision brought the late effects of time, to be executed after a court decision, should have taken final form, for the plaintiff, from the time of filing of the petition until the conclusion of the trial, can serious consequences come and irreparable actions of the defendant, was necessary a procedural tool for them coming to help the violated rights of the plaintiff. Insurance claim, is taking emergency measures to prevent the arrival of serious consequences. Because of its emergency nature, this request is examined in an expedited way, with in 5 days of the filing of the application. Insurance claim consists of maintaining the previous situation, before the birth of the dispute, but on condition that not be the same with the suit research facility. Taking temporary measures to secure the insurance claim seeks «to keep
the situation as it is», or «frozen» until we resolve this conflict, which, for the nature of the case, must be achieved through a prompt and relatively simple, caring, anyway, to respect a standard acceptable to due process of law [2]. Even the European Court of Human Rights has so defined security system measures the suit, as measures intended to preserve a situation of fact or law, with the aim of protecting the rights [3]. To ask the Court of Appeals insurance, there certainly should be some conditions which lead to the necessity to take measures for securing the claim. Given that, rejecting an administrative act before the Court, does not suspend the execution of the act, the claimant is a need to be protected from the serious damage that can eventually vine as a result of its implementation. Law No. 49/2012 "On the organization and functioning of Administrative Courts and administrative disputes" under Article 28 and Article 33 thereof, provides procedural means of securing the claim, its purpose, terms and conditions for its deployment, implementation, application,
Section 8. Science of law
change and decrease of the amount of insurance. Under the provisions of Law No. 49/2012, insurance claim is required in cases where there is the possibility of the arrival of incurring serious and irreparable damage arising from the execution of administrative action [4]. Insurance claim has a particular, which differs from other procedural provided by procedural law, since it gives the opportunity to exercise this requirement even before the establishment of the claim, provided that the insurance claim be filed within 10 days from the time Court decides to allow the insurance claim. Demand for insurance claim can also be made at any stage and level of judicial review, until the decision has not taken final form. Conditions that must exist to require insurance claim [5]: There is a reasonable doubt, based on the paperwork, for the potential to cause a serious damage, irreversible. No seriously undermined public interest. So, the law requires that the above conditions exist, then the possibility of incurring serious and from taking this measure is not a threat to the public interest. Given that, in administrative disputes are before the case when one of the litigants is a public body, and it is precisely acts issued by these bodies which are subject to dispute, and for this purpose the legislator has looked reasonably determine that one of conditions must fulfill to secure the lawsuit, is seriously upholding the public interest. In the second condition, the legislator had in mind the principle of protecting the public interest and the rights of private persons, as well as that of proportionality. So by putting the insurance claim from the Court, it suffices that the public interest in not a threat, which means that the extent of "serious" violation of public interest, it is left to the discretion of the judge who reviews the application, that what he considers the infringement serious public interest. This legal vacuum, leaves room for discretion, when setting a security measure seriously violates public interest insurance claim. Also, one other condition, which the legislator has left entirely in diksrecion court, is the case when the court deems necessary given a guarantee by the plaintiff, for eventual damage that may be caused to the defendant insurance claim. The granting or refusal of a security measure is subject to the discretion of the court [6], which eventually carries the risk
of infringement of the rights of litigants. However, the decision to secure the lawsuit, remains an intermediate decision, which is not intended to provide the foundation final settlement.
Types of security measures to insurance claim
Demand for insurance claim, consisting of: Suspension of the implementation of the administrative act, administrative contract or other administrative action. Also taking other measures appropriate by the court in cases where only the suspension does not provide adequate protection. Given that, in an administrative judgment, examined administrative disputes having as object administrative acts, administrative action or administrative contract, which have mandatory execution [7] (in special cases immediate, the legislator has foreseen the possibility that the plaintiff, inter alia, require the suspension of the implementation of the act/administrative action which is opposed). In order to harmonize the Code of Administrative Procedure law No. 49/2012 "On the Organization and Functioning of Courts and disputes Administraitve Adminstrative" legislator drafted a new Code of Administrative Procedure, namely Law No.44/2015, which It entered into force in May 2016. in Article 180 of the law No.44/2015 is expected suspension of execution of the administrative act, when something such competent court decides that is considering the administrative dispute [8]. Turning to insurance claim under the law No. 49/2012, it shows that the legislator has not provided so exhaustive kinds of security measures of the claim, not restricted to taking the opportunity to claim the measures other than those of provided by article 30 of law No. 49/2012.
Although the placement of insurance claim is an intermediate decision, temporary, it does not mean that during the review of the dispute, the Court has no right to change or revoke this measure of securing the lawsuit, given by her. From the moment that the Court of Appeals decides on security, it largely at the request of the parties or, in the case when the circumstances change dictated taking this decision, the Court may revoke or vary the decision to secure the lawsuit. So it is not intended that until judicial process is complete and the decision to have taken final form, the decision to take the measure of
security continues to remain in force, but a special law provides the possibility of revoking or changing the type of measure. Request which is made by the parties or by the Court, when the circumstances/conditions laid down in Article 29 of Law No. 49/2012, have changed or no longer exist. Insurance claim, differs from other procedural tools, as against the entry of the decision of the court to accept or reject her, litigants have the right to exercise a special appeal against the decision of the Court of Appeals for the provision, in the highest court. So the decision of acceptance or rejection of an application for insurance claim, is not appealed together with the final decision, but the parties have the right to exercise a special appeal in a higher court within a 5 day period.
However, it is worth to note that the decision on the amount of insurance claim, in terms of constitutional adjudication and especially the right substantive that protects, is an intermediate decision, as he decides definitively on the subject of the request, which will It means that it is a decision variable, as may be amended or revoked whenever changing circumstances and conditions in which it is given.
Conclusion
Ensure the lawsuit as an important procedural tool, emergency, which although does not solve the case on its merits, the plaintiff guarantees or avoid further violations of the rights violated, also preventing the arrival of the most serious consequences. Insurance claim, is the measure that aims to save a situation of fact or law in order to protect the rights of the plaintiff. The civil trial, insurance claim, given in view of the decision's final. Insurance claim, is a decision between the court, which does not resolve the underlying issue, and may be amended or revoked, depending on changing conditions that have dictated it. Demand for insurance claim, there can not be the object, that the plaintiff has done research on the merits of the claim. Rating conditions for the establishment, modification or revocation of the amount of insurance claim remains in the discretion of the court. Each of the parties reserves the right to challenge the decision of the insurance claim through a special appeal, the higher court. Despite the duration of the judicial process, restoration of the violations, the failure of the plaintiff guaranteed further damages as a result of the suspension of the administrative act.
References:
1. Article 28-33 of the Law No. 49/2012 "On Organization and Functioning of the Administrative Court and administrative disputes".
2. Unifying Decision No.10, dated 24.03.2004, the United Chambers of the Supreme Court.
3. Reichert vs Dresdner Bank, ECJ 26 March 1992, Case C-261/90, ECR I-2149.
4. Article 28 of Law No. 49/2012.
5. Article 29 of Law No. 49/2012.
6. Management Publications Ltd k Blenheim Exhibitions Group Plc (1991) 1 All ER 70.
7. Article 171 of the Law No.44/2015 "Code of Administrative Procedures".
8. Article 180/b of Law No.44/2015 "competent court for administrative issues has suspended the implementation of the act, under the provisions of administrative dispute resolution.
