scholarly journals Stosunek administracyjnoprawny w niemieckiej doktrynie prawa publicznego

2020 ◽  
pp. 27-47
Author(s):  
Paweł Sancewicz
Keyword(s):  
German Literature ◽  
German Law ◽  
Administrative Law ◽  
Public Law ◽  
Legal Relationship ◽  
Legal Situation ◽  
Vital Component ◽  
Legal Forms ◽  
Polish Law

The notion of the administrative-legal relationship is the basis of the dogmatics of Polish administrative law. Over the years, the doctrinal framework of this concept has been established by the doctrine of public law. At the same time, an extremely fruitful dogmatics discussion about this concept both in German law and practice has taken place. Therefore, the article attempts to present discoveries of the German doctrine of public law in this area. The review of the German literature conducted in the article shows that, despite some disputes, the German authors currently believe that the administrative-legal relationship is a useful tool for the analysis of rights and obligations in comprehensive legal relations, as well as cooperative frameworks. Contemporary German scholars, who do not distinguish the concept of a legal situation, unlike in Poland, believe that as part of the modernization processes in administration, the concept of the administrative-legal relationship can be used to solve complex legal issues.The above-mentioned discoveries made by German scholars could act as significant inspiration for the Polish doctrine of public law, especially in the context of the draft to introduce an administrative agreement into Polish law. Of particular importance here is the fact that in Germany there is a different system of the legal forms of administration activity, of which an administrative agreement is a vital component. It is indicated in the paper that Polish scholars see the possibility of describing complex legal constructions by the notion of the administrative-legal relationship in the simultaneous or complementary use of the concept of the administrative-legal situation. One should consider whether the same or better effects cannot be achieved much more easily, namely by modifying the understanding in the doctrine of the notion of administrative-legal relationship, more appropriate to the analysis of cooperative frameworks in administration.

scholarly journals Swoboda wyboru prywatnoprawnej formy działania administracji gospodarczej w polskiej i niemieckiej doktrynie prawa publicznego

2019 ◽  
pp. 93-116
Author(s):  
Paweł Sancewicz
Keyword(s):  
Public Administration ◽  
German Law ◽  
Legal Framework ◽  
Public Law ◽  
Legal Form ◽  
The Public ◽  
Administrative Procedures ◽  
The Republic ◽  
Legal Forms ◽  
Polish Law

The purpose of this paper was to present views of both Polish and German public law doctrine on the issue of the possibility to choose a legal form of implementa­tion of public tasks by the public administration. This issue is not only a theoretical matter because currently administration has to cope with increasingly complex and complicated public tasks that must be implemented. The article first explains the concept of the legal forms of action, distinguished from the measures available in administration. Next, the freedom of choice of the legal form of action as well as the instances of its abuse are analysed. The considerations carried out in the article allow to adopt the position that the choice of the legal form of action by public administration cannot be actually prejudged under Polish law. The main limitation of the freedom to choose the le­gal form of action is contained in Article 7 read in connection with Article 2 of the Constitution of the Republic of Poland which stipulate a legal framework that ought to embrace them. There is also a concern that the authorities may abuse certain forms of action in order to, for example, avoid certain administrative procedures or to achieve desired fiscal objectives. As indicated in the course of the analysis, the German doctrine and practice encountered similar problems, and now the experi­ence and undoubted successes of German law and practice could be a significant inspiration for Polish lawmakers in this area. De lege ferenda, it is necessary to propose the introduction of legal regulations that will enable or facilitate a free choice of the legal form of action by administra­tive bodies. However, establishing such regulations will only be possible and and effective when the administrative agreement becomes part of the Polish legal system.

scholarly journals Zagadnienia konstrukcyjne umów publicznoprawnych

2019 ◽  
pp. 139-157
Author(s):  
Lucyna Staniszewska
Keyword(s):  
Public Law ◽  
Legal Provisions ◽  
Legal Relationship ◽  
Scientific Analysis ◽  
Legal Nature ◽  
Different Types ◽  
Administrative Body ◽  
Legal Forms

The formulation of legal provisions by the administration does not have to take the form of administrative decisions. One of the legal forms of the administration is public-law contracts. This is one of the forms of administration which still requires a further scientific analysis. Contracts are useful instruments, and therefore it may be worth looking at their different types and construction. They may be classified according to the parties to the legal relationship created. There are two types of contracts, i.e. between admin­istrative bodies and between an administrative body and an entity. The doctrine refers to contracts of the latter type as administrative and legal agreements. Such agreements have developed in the Polish legal order after the systemic changes. Unfortunately, the legislator has not provided their legal definition, they are regu­lated in special laws, most often by indicating contractual provisions constituting essentialia negotii. The doctrine does not explicitly define the character of the con­tracts concluded by the administrative body and its contractor, nor has the final characteristics of the content of contracts in the administration as a whole been made. There is still a lack of consensus as to the construction of public law contracts and the rules governing them. There is an urgent need to regulate the essence of administrative contracts, and in particular to indicate their construction and legal nature, in order to better protect legal entities entering into them. The purpose of public-law contracts is to improve the quality of administration, and increase the efficiency of administrative activities. More administrative contracts also mean higher decentralisation of the state. Moreover, the idea of extending the use of public-law contracts is consistent with the principle of the participatory role of citizens in achieving public effects. The Polish legislator may draw on the regulations of other countries, for instance Germany, where public-law contracts have received legal definitions.

scholarly journals Legal principles of counteraction to corruption and organized crime and the place of administrative and legal regulation among them

2020 ◽  
Vol 77 (2) ◽  
pp. 58-63
Author(s):  
О. О. Вороний
Keyword(s):  
Public Relations ◽  
Organized Crime ◽  
Legal Regulation ◽  
Administrative Law ◽  
Public Law ◽  
Public Authorities ◽  
Legal Principles ◽  
National Importance ◽  
Legal Relationship ◽  
The Subject

Based on the analysis of the current domestic and international legislation, the author has provided characteristics of the legal principles for combating corruption and organized crime. It has been established that the legal principles for combating corruption and organized crime covers currently a large number of regulatory acts of international and national importance; it has been emphasized that a key place among them belongs to administrative and legal regulation. It has been found out that administrative and legal regulation is a form of legal influence on public relations, which is carried out on the basis of the norms of administrative branch of law. Thus, this legal influence operates in the field of public relations that arise as a result of the activities of public law entities, in particular public authorities. Besides, administrative and legal regulation is, first of all, the system of norms that regulate organizational and administrative issues, aspects of the division of competence of public law entities and their legal relationship. The emphasis has been placed on the fact that if we consider the system of legal principles for combating corruption and organized crime, they mostly consist of the rules of administrative law, since they regulate organizational forms of combating corruption and organized crime as a special activity of public authorities, determine the competence of each of the subject of combating corruption and organized crime, establish structural and system aspects of such activities, establish features of control and supervision over the process of its implementation, etc. It has been established that administrative and legal regulation is dominant in the system of legal principles for conducting activities to combat corruption and organized crime in Ukraine.

Fiduciary Principles and Public Offices

2019 ◽  
pp. 302-322
Author(s):  
Ethan J. Leib ◽  
Stephen R. Galoob
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
Public Institutions ◽  
Policy Implications ◽  
Public Officials ◽  
Public Office ◽  
Public And Private ◽  
Normative Structure ◽  
The Public ◽  
Positive Law

This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.

PUBLIC LAW STATUS OF AN EXTREMELY POOR PERSON – A REVIEW OF ADAM PLOSZKA’S DOCTORAL MONOGRAPHY

2020 ◽  
Vol 4 (XX) ◽  
pp. 321-335
Author(s):  
Alexander Martin Juranek
Keyword(s):  
Public Law ◽  
Economic Situation ◽  
Global Level ◽  
European Level ◽  
Minimum Standard ◽  
The Poor ◽  
Constitutional Level ◽  
Legal Situation ◽  
Poor Person

The main purpose of this article is to refer to the Author’s considerations presented in his doctoral monography entitled “Public law status of an extremely poor person”. First of all, the appropriateness of the research hypotheses and questions adopted by the Author will be analysed with particular emphasis attached to the validity of the conclusions drawn in the context of the current social and economic situation in Poland. The second part is dedicated to considerations of a „strictly content-related nature”: from the analysis of solutions to counteract poverty at the global level, through the regional (European) level, to the national (constitutional) level. At this stage, reference will also be made to the standard of protection of the rights of the extremely poor suggested by the Author. The next part will analyse the extent of the discrepancies between the ‘minimum standard’ of protection suggested by the Author and the factual and legal situation of the poor. Conclusions in this area will be particularly useful for law application practice.

scholarly journals Legal Status of Minor Testator’s Parents Deprived of Parental Authority in Intestate Succession. Some Remarks on the Solutions in Polish, Russian, and Italian Law

2021 ◽  
Vol 47 (4) ◽  
pp. 107-134
Author(s):  
Hanna Witczak
Keyword(s):  
Legal Status ◽  
Parental Authority ◽  
Legal Systems ◽  
Family Ties ◽  
Italian Law ◽  
Parental Obligations ◽  
Legal Situation ◽  
Polish Law ◽  
The Right ◽  
A Minor

The legal situation of minor testator’s parents in intestate succession poses a significant legal and social problem. In Polish law, parents who have been deprived of parental authority continue to enjoy their civil-law status; in other words, they maintain the right to inherit from their child under statute. Meanwhile, the reasons for which the court applied the strictest possible “sanction” in the form of deprivation of authority of parents who, in exercising their rights under parental authority, seriously violated the child’s interest or grossly neglected parental obligations, which is noticeable even to an ordinary bystander, seem to be sufficient “proof” that family ties, which are decisive for the statutory title to inherit, do not exist. If these ties are severed or seriously disrupted, the consequences should be seen in all areas of life. Simply put, persons who deliberately break apart the family should not enjoy the advantages that the law provides for testator’s closest relatives. In such a case, to consider the effect of deprivation of parental authority by “releasing” its holders from any obligation towards the child may not be considered a sufficient civil sanction, especially given that in the vast majority of cases, the reason for such deprivation is gross neglect of parental duties by one or both parents. The consequences of this type of negligence should also, if not primarily, consist in the deprivation of pecuniary benefits that the parents of a minor could enjoy after his or her death. The current legal solutions governing this area undoubtedly need to be revised. Such imperfect normative solutions adopted in Polish law prove the need to propose de lege ferenda recommendations. In this context, it is worthwhile to have a look at the normative solutions adopted in foreign legal systems and whether they can be grafted on Polish law. The reference to the Russian and Italian legal systems seems particularly recommendable due to the fact that their normative solutions directly allude to the institution of deprivation of parental authority in the context of admissibility of the title to inherit.

scholarly journals CONTRADICTIONS BETWEEN SCIENTIFIC TERMINOLOGY AND THE TERMINOLOGY OF THE LEGISLATION ON THE DEFINITION OF SUBJECTS AND PARTICIPANTS IN THE ADMINISTRATIVE PROCESS

2019 ◽  
pp. 70-73
Author(s):  
I. L. Zheltobriukh
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Process ◽  
Scientific Terminology ◽  
Procedural Law ◽  
The Subject ◽  
State Of Affairs ◽  
Definition Of ◽  
Enforcement Activity

This paper explores the existing contradictions between the scientific terminology and the terminology of legislation regarding the definition of subjects and participants in the administrative process. It is noted that acquaintance with the scientific and educational- methodological literature shows that even today there is no clear justification of the relation between the terms “subject of administrative process” and “participant of administrative process”. The main reason for this state of affairs is due to differences in the laws of development of national administrative procedural legislation and the laws of development of science of administrative procedural law. It is concluded that there is a long-standing need to offer the scientific community and practitioners such a concept of relation between the terms “subject of administrative process” and “participant in administrative process”, which would reconcile the contradictions of the otological and epistemological terminology used in the CAS. The necessity to use in the science of administrative law and process justifies the concept according to which the administrative process should be considered as law enforcement activity of administrative courts related to the consideration and resolution of public law disputes. In such a case, the administrative court will always be the subject of the administrative court, whereas the parties, third parties, representatives, assistant judge, court secretary, court administrator, witness, expert, law expert, translator, specialist are only participants in the administrative process that is, persons involved in the enforcement of administrative law.

scholarly journals Potential invalidity of the decision of a public administrative body as a result of the conviction of a person performing a function

2019 ◽  
pp. 159-168
Author(s):  
Piotr Szulc
Keyword(s):  
Employment Relationship ◽  
Government Employees ◽  
Government Employee ◽  
Legal Situation ◽  
Legal Position ◽  
Administrative Body ◽  
Polish Law

The article presents the reflections on the potential invalidity of an administrative decision of a public administrative body as a result of the conviction of a person performing a function for an offence under Polish law. Firstly, the author analyses the legal situation of a person convicted for an offence under the Election Code (Kodeks wyborczy), the Act on Self-Government Employees (Ustawa o pracownikach samorządowych) and the Labour Code (Kodeks pracy). He examines in detail the discrepancies between the three legislative acts which may influence the legal position of a convicted person. The conclusion is that a person with the final and valid judgment for intentional offence prosecuted by public indictment to a fine or to penalty of imprisonment retains a passive electoral right in the elections for the mayor, however it seems that under the Act on Self-Government Employees it will not be possible to establish an employment relationship with such a person to work in the capacity of a self-government employee based on election. Secondly, the author analyses the potential invalidity of administrative decisions issued by a person convicted for an offence. The two conditions that could be taken into account as grounds for declaring the invalidity of an administrative decision in the context of the conviction are: a lack of jurisdiction of the authority as a condition of declaring the invalidity of a decision and a gross breach of law as a condition of declaring invalidity of a decision. The analysis of the selected conditions leads to a conclusion that there are no grounds for declaring the invalidity of a decision, as the regulations on jurisdiction will not be breached and the decision will not be issued in gross breach of law. Therefore, even if one were to consider that under the Act on Self-Government Employees a given person cannot be a self-government em­ployee, it seems that this does not prevent the issuance of administrative decisions.

Options for Applying Functional Overlapping Competing Jurisdictions (FOCJs) for Municipal Cooperation in Russia

2017 ◽  
pp. 73-107 ◽  
Author(s):  
Peter Friedrich ◽  
Mariia Chebotareva
Keyword(s):  
Public Service ◽  
Service Provision ◽  
Public Law ◽  
Public Enterprises ◽  
The Third ◽  
Political Environments ◽  
Public Service Provision ◽  
Service Activities ◽  
Private And Public ◽  
Legal Forms

Municipal cooperation is important for transformation countries, like Russia, which have to develop legal, institutional and political environments for public service activities. The authors recommend FOCJs as an instrument for coordinated municipal public service provision. To determine the suitability of FOCJs the analyst has to investigate the relation between FOCJ theory, their financing possibilities, the fiscal effects, and the legal forms in which FOCJs can operate in Russia. The authors define several forms of FOCJs and sort out appropriate public enterprises of private and public law for Russian FOCJ. To analyse the establishment, the operations, and the competition between FOCJs the authors present three types of models. One relates to the establishment of an FOCJ, the second concentrates on financing service activities, and the third model deals with competition among FOCJs and demonstrates the effects of different ways of finance. The article concludes with elaborating recommendations for financing FOCJ under conditions in Russia.

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