Administrative Law and the Chinese Legal System: Some Issues on Judicial Review of Administration Activity

2021 ◽  
pp. 326-338
Author(s):  
Danilo Pappano
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Legal Protection ◽  
Economic Structure ◽  
Administrative Law ◽  
Current Phase ◽  
Gradual Change ◽  
State And Society ◽  
The Relationship ◽  
Theoretical Issues

This chapter explains how, in the current phase of development in the Chinese legal system, administrative law has emerged. China is undergoing a process of subjecting power to the rules which, for administrative law, concern the relationship between state and citizen, and more generally that between state and society. The current evolution is particularly rapid and favoured by changes to the economic structure in recent years, and this explains the fact that administrative law in China is on the eve of great expansion. The chapter examines some theoretical issues relating to judicial review of the exercise of administrative activity, an area which has seen the manifestation of the process of legalization of administrative power, as has happened in Western legal systems. Over the last few years, the development and interpretation of the instruments available has progressed while the availability of instruments has tended to broaden, even if currently legal protection is still in its early stages. However, all this will naturally require a long period of settling, as in Western countries; hence the evident need for gradual change as the fruit of a realistic approach.

scholarly journals El recurso directo: entre protección jurídica y constitucionalidad objetiva = Directation: between legal protection and objetive constitutionality

2014 ◽  
pp. 319
Author(s):  
Otto Pfersmann
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Direct Action ◽  
Legal Protection ◽  
Fundamental Rights ◽  
Constitutional Rule ◽  
The Rule Of Law ◽  
Constitutional Judicial Review

La posibilidad de que los individuos dispongan de un «recurso directo» para cuestionar normas del sistema jurídico ante el juez de la constitucionalidad no constituye un elemento necesario del Estado constitucional de Derecho. La institución de los «derechos fundamentales», no requiere, en cuanto tal, que la protección de los mismos deba corresponder al juez de la constitucionalidad de las leyes. Lo que permite distinguir los diferentes modelos es el grado en que concentran y distribuyen estas tareas (protección de derechos fundamentales y control de constitucionalidad de la ley, básicamente). Esto depende de varios factores: el grado de exhaustividad del control de la constitucionalidad de las normas, el tipo de supervisión (preventivo o correctivo), el número de órganos encargados del control y el número de componentes del mismo. Se plantea así el problema de la limitación que aqueja al Estado de Derecho, pues cuanto más exhaustiva pretende ser la realización del mismo, menos intensa resulta produciendo un paradójico debilitamiento del derecho fundamental y del principio de exhaustividad. Asistimos, pues, a una mutación del principio «monomicrodicástico» y exhaustivo de jurisdicción constitucional.The possibility for individuals to have a «direct action» to challenge the norms of the legal system before the judge of the constitutionality is not a necessary element of the constitutional Rule of law. The institution «fundamental rights» does not require, as such, that the judge of the constitutionality of the parliamentary statutes should grant their protection. What allows distinguishing the different models is the degree of the concentration and distribution of these basic tasks: protection of the fundamental rights, constitutional judicial review. This depends upon various factors: how exhaust the constitutional judicial review should be, what kind of constitutional supervision may be (preventive or corrective), the number of the organs charged with this task, and the number of its components. The question of the limitation of the Rule of Law is risen, because the more exhaustive its implementation is intended, the less intense, generating a paradoxal weakness of the fundamental right and the completeness principie. A phenomenon appears: the mutation of the «monomicrodicastic» principie and the completeness of the constitutional judicial review.

scholarly journals Legal control of discretionary powers in Ghana: Lessons from English administrative law theory

Afrika Focus ◽  
1998 ◽  
Vol 14 (2) ◽  
Author(s):  
Kwadwo B. Mensah
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Attorney General ◽  
Administrative Law ◽  
Administrative State ◽  
Depth Analysis ◽  
Legal Control ◽  
Popular Party ◽  
Discretionary Powers

This paper develops along the following line. First, we shall attempt to explain what discretion is, why it has become very important in the modem administrative state, and the dangers that it poses in a democratic legal system. It then looks at the problems which have to be faced in justifying judicial review of discretion. It takes an in depth analysis of legal liberalism and functionalism. Aimed with these 'lenses', it attempts to explain the theoretical basis of two important Ghanaian cases, Re Akoto , and People's Popular Party v Attorney General (PPP v AG)'. It examines the provisions which regulate the use of discretionary powers in the Ghanaian 1993 Constitution and it looks at the choices we have to make from the various theories and the development of the administrative state in Ghana.KEY WORDS: functionalism, Ghana, judicial review, law, liberalism 

4. The Royal Prerogative

2018 ◽  
Author(s):  
Ian Loveland
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
Judicial Review ◽  
Civil Service ◽  
Administrative Law ◽  
Revolutionary Era ◽  
The Rule Of Law ◽  
The Relationship

This chapter considers the fate of the royal prerogative in the courts during the twentieth century. The discussions cover the relationship between statute, the prerogative, and the rule of law; the traditional perspective on judicial review of prerogative powers and its erosion; Council of Civil Service Unions v Minister for the Civil Service (GCHG) as the pivotal case in the development of judicial review of the prerogative; post-GCHG developments; and the notion of justiciability. The chapter concludes that the courts supervise the government’s use of prerogative powers more closely now than in the pre-revolutionary era. There has been an increase in the theoretical reach of the courts’ power of review since the 1967 decision in Lain. Administrative law also seems to treat prerogative and statutory powers in the same way.

scholarly journals Application of Administrative Law in the Time of Reforms in the Light of the Scope of Judicial Review in Hungary

2020 ◽  
Vol 29 (3) ◽  
pp. 101
Author(s):  
István Hoffman
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Paradigm Shift ◽  
Administrative Law ◽  
The State ◽  
The Rule Of Law ◽  
Legal Remedies ◽  
Review Model ◽  
The Impact

<p class="Default">The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.</p>

scholarly journals TRIBUNAL JUSTICE AND PROPORTIONATE DISPUTE RESOLUTION

2012 ◽  
Vol 71 (2) ◽  
pp. 297-324 ◽  
Author(s):  
Mark Elliott ◽  
Robert Thomas
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Judicial Review ◽  
Administrative Law ◽  
Legal Doctrine ◽  
Legal Policy ◽  
High Court ◽  
The Supreme Court ◽  
Institutional Landscape ◽  
The Relationship

AbstractThe tribunals system in England and Wales has been transformed by the entry into force of the Tribunals, Courts and Enforcement Act 2007; among other things, tribunals are now located more firmly and explicitly than ever before within the judicial branch. Questions concerning the relationship between tribunals and regular courts fall to be confronted afresh within this new institutional landscape. Those questions form the focus of this article, which is particularly concerned with the issue recently considered by the Supreme Court in Cart whether, and if so to what extent, decisions taken within the tribunals system (by the Upper Tribunal) should be susceptible to judicial review by the High Court. In Cart, emphasis was placed upon the concept of “proportionate dispute resolution” as a means by which to delimit regular courts' oversight of tribunals' decisions, raising fundamental questions both of legal doctrine (relating to the relevance of the orthodox doctrinal tools of administrative law) and legal policy (concerning the degree of error on the part of a tribunal that a higher court should tolerate in the interests of the efficient, or proportionate, use of judicial resources).

scholarly journals The Protection of Legitimate Expectations in Administrative Law: A Horizontal Perspective

2017 ◽  
Vol 10 (2) ◽  
pp. 1-25
Author(s):  
Jerzy Parchomiuk
Keyword(s):  
Peer Relationships ◽  
Legal System ◽  
Traditional Approach ◽  
Administrative Law ◽  
Good Faith ◽  
Vertical Relationships ◽  
Legitimate Expectations ◽  
The Subject ◽  
The Individual ◽  
The Relationship

Abstract The term “protection of legitimate expectations” in administrative law traditionally draws our attention to vertical relationships between the State and an individual. In my text I propose a non-traditional approach to the issue of protection of legitimate expectations in administrative law. Instead of analysing the problem from the perspective of the relationship between the administrative body and the individual, I have attempted to tackle the problem from the perspective of entities involved in peer relationships. The subject of my analysis is the principle of good faith as the axiological foundation for the protection of legitimate expectations in administrative law. Next the article addresses the specific legal institutions that express the protection of legitimate expectations in horizontal perspective: prohibition to make assertions contradictory to prior position (estoppel), institutions that express the protection of legitimate expectations in administrative contracts, as well as the principle of good faith in relationship between administrative bodies. The principle of good faith is a universal legal construct that forms the foundation of the legal system. Thus it is applicable in the sphere of administrative law, especially in the case of the relationship between equal-level entities.

scholarly journals Legal Control of Discretionary Powers in Ghana: Lessons from English Administrative Law Theory

Afrika Focus ◽  
1998 ◽  
Vol 14 (2) ◽  
pp. 119-140
Author(s):  
Kwadwo B. Mensah
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Attorney General ◽  
Administrative Law ◽  
Administrative State ◽  
Depth Analysis ◽  
Legal Control ◽  
Popular Party ◽  
Discretionary Powers

This paper develops along the following line. First, we shall attempt to explain what discretion is, why it has become very important in the modern administrative state, and the dangers that it poses in a democratic legal system. It then looks at the problems which have to be faced in justifying judicial review of discretion. It takes an in depth analysis of legal liberalism and functionalism. Armed with these ‘lenses’ it attempts to explain the theoretical basis of two important Ghanaian cases, Re Akoto and People’s Popular Party v Attorney General (PPP v AG). It examines the provisions which regulate the use of discretionary powers in the Ghanaian 1993 Constitution and it looks at the choices we have to make from the various theories and the development of the administrative state in Ghana.

Ansprüche und Klagen im Verwaltungsrecht

2019 ◽  
Vol 52 (2) ◽  
pp. 239-258
Author(s):  
Andreas Funke
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Reference Point ◽  
Legal Protection ◽  
Administrative Law ◽  
Administrative Courts ◽  
Judicial Actions ◽  
Inspiring Ideas

Claims and Actions in Administrative Law It is beyond dispute that administrative courts protect the rights of individuals. Yet how does this protection actually operate? In his recently published monograph “Actio, Anspruch, subjektives Recht” (2017), Johannes Buchheim suggests a fresh account of legal protection in administrative law issues. Buchheim develops an action-based model concerning the reconstruction of administrative law. The project questions the prevalent approach towards administrative law, labelled as the claim-based model. The claim-based model focusses on substantive claims, which may originate from a violation of an individual right or which may be established directly by a statute, a contract or anadministrative act. It conceives judicial actions as being strictly dependent on such substantive claims. The action-based model denies such a dependence. Instead, it assumes that the courts follow an autonomous logic of decision-making, perceiving the violation of a right only as the initial reference point. This article aspires, firstly, to identify Buchheim’s main objections, secondly, to clarify and to confine the claim-based model in some respects, and lastly, to examine the objections raised by Buchheim in detail. While the book offers a plethora of inspiring ideas, it finally does not succeed in establishing the action-based model. Judicial review is based on claims, not only on (violation of) rights.

The Administration of Arms Control: Ensuring Accountability and Legitimacy of Field Operations

2009 ◽  
Vol 6 (2) ◽  
pp. 627-653
Author(s):  
Axel Marschik
Keyword(s):  
Civil Society ◽  
International Law ◽  
Legal System ◽  
Arms Control ◽  
Administrative Law ◽  
Basic Principles ◽  
Field Operation ◽  
The Many ◽  
The Relationship

AbstractInternational arms control operations are based on a foundation of global programs and instruments. An analysis of these operations gives an indication of the many challenges they face in practice and what administrative means have been developed to address them. Special attention is devoted to the secondary norms of accountability and to the relationship between the internal legal system of the field operation, often conceived as a largely autonomous self-contained regime, and the legal system of its higher authority and general international law. Finally, the increasingly relevant participatory role of civil society in arms control and its conformity with basic principles of international administrative law will also be examined.

scholarly journals PERLINDUNGAN HUKUM TENAGA KERJA KONTRAK DAN OUTSOURCING, SERTA PROBLEMATIKA IMPLEMENTASINYA

2021 ◽  
Vol 5 (2) ◽  
pp. 145-160
Author(s):  
Tri Budiyono
Keyword(s):  
Judicial Review ◽  
Legal Protection ◽  
Business Continuity ◽  
Constitutional Court ◽  
Labor Protection ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
Philosophical Approach ◽  
The Law ◽  
The Relationship

The relationship between employers and workers tends to be characterized by a tension between the employers' and workers' interests. While the employers maintain business continuity to obtain optimal advantages, the workers demand to get decent wages or welfare. For example, the laborers have struggled through a constitutional way by submitting a judicial review of Law No. 13 of 2003 concerning Manpower. This research used a conceptual approach and a philosophical approach to observe the relevant legal material in the Constitutional Court's decision to obtain legal guarantees with more legal certainty. In conclusion, this research found that: (a) The phrase 'for the sake of the law' should have granted the laborers more legal protection. However, it still creates multiple interpretations that lead to the loss of certain legal protections. (b) The Constitutional Court, through its decision, has laid the basis of legality with more legal certainty through the implementation of labor protection norms gradually. (c) Even though the Constitutional Court's decision has already provided legal certainty normatively, the uncertainty of legal protection still exists in practices.

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