scholarly journals The Service of Documents in Administrative Procedural Law – A Comparative Analysis

2018 ◽  
Vol 16 (2) ◽  
pp. 109-131
Author(s):  
Ines Golob
Keyword(s):  
Comparative Analysis ◽  
Public Interest ◽  
Comparative Research ◽  
Case Law ◽  
The Public ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Different Types ◽  
Uniform Manner ◽  
Administrative Proceedings

This article presents a comparative and empirical analysis of the service or the delivery of documents in procedures, as the key procedural action to constitute legal effects in legal relationships. In Slovenia, service is largely defined by the three main procedural laws – the General Administrative Procedure Act, the Criminal Procedure Act, and the Contentious Civil Procedure Act. These relate to different types and specifics of relationships; for instance, in administrative proceedings, the public interest prevails over private ones. The presented research, applying predominantly normative and comparative methods and analysis of case law, aims to show the importance of the specificity of the different areas and of the rules of service in different proceedings. The results of the research suggest that in certain cases service should be regulated in a uniform manner. Yet the specific aims of various legal relations require individual solutions. Thus, the article opens up grounds for future comparative research and practical regulatory improvements.

scholarly journals In the name of the public: Representatives of collective and wider interest of the public in administrative matters in Serbia

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 504-531
Author(s):  
Jelena Jerinić
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Legal Framework ◽  
Interested Party ◽  
The Public ◽  
Administrative Procedure ◽  
Active Approach ◽  
Legal Provisions ◽  
Direct Indication ◽  
Administrative Procedures

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime

2020 ◽  
Vol 45 (1) ◽  
pp. 1-35 ◽  
Author(s):  
Marija Karanikić Mirić ◽  
Tatjana Jevremović Petrović
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Practical Experience ◽  
The Public ◽  
Administrative Procedure ◽  
Public Purpose ◽  
General Rules ◽  
Rules And Principles ◽  
Private Entity ◽  
Definition Of

The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.

scholarly journals THE PRINCIPLE OF EXPEDIENCY OF LAW INTERPRETATION

2020 ◽  
pp. 8-14
Author(s):  
S. V. Pryima
Keyword(s):  
Law Enforcement ◽  
Positive Result ◽  
Public Interest ◽  
Legal Responsibility ◽  
The Public ◽  
Procedural Law ◽  
Different Types ◽  
The Subject ◽  
Judicial Procedures ◽  
Optimal Set

In the article was investigated the principle of expediency of law interpretation. It is noted that the term “expediency” is close in meaning to the terms “optimality”, “rationality”, “efficiency”. Due to this the principle of expediency is seen in a general way as the principle which requires that the subject should achieve a useful, positive result with applying the optimal set of methods. It is established that the principle of expediency is realized in different branches and institutions of law. Particularly, in the civil procedural law such judicial procedures are based on this principle as examination, storage and provision of evidence, the appointment and realization of expertise, the association and dissociation of claims. It is also noted that the principle of expediency is important in punishing a person, in other words, it is the basis of legal responsibility. In this sphere, it consists in the individualization of punitive measures or punishment depending on the gravity of the offense, taking into account the offender's personality, his welfare and the circumstances of the action. The principle of expediency also means that the chosen measure is relevant to the purposes of responsibility. It is noted that the principle of expediency makes the requirements for conducting different types of legal activity – law-making, law-enforcement, and therefore, it is one of the main principles of law interpretative activity. It is emphasized that the basic idea of this principle is that the act should not be interpreted in the sense which makes it aimless, so, the act cannot be interpreted beyond the purpose for which it was adopted. In the article is also argued that a particular method of setting of a goal of a legal norm is a teleological (purposeful) mean of interpretation. The requirements of the principle of expediency include the aspiration of the public interest and the obligation to apply the verification of interpretative conclusions. The principle of expediency of law interpretation is defined as the interpretative principle, the essence of which is the aspiration of the subject of interpretation to achieve the goal, to obtain a useful, positive result from their activities by using the optimal set of methods for this purpose.

scholarly journals Milczenie organów administracji jako instytucja materialnego i procesowego prawa administracyjnego

2019 ◽  
pp. 49-78
Author(s):  
Lucyna Staniszewska
Keyword(s):  
Public Interest ◽  
The Public ◽  
Administrative Procedure ◽  
Procedural Law ◽  
General Clause ◽  
Legal Forms ◽  
Substantive Law ◽  
Procedural Rights ◽  
Legal Consequences ◽  
Practical Level

The aim of the article is to examine the institution of “Silent settlement of the matter” regulated in the Code of Administrative Procedure, as well as in the provisions of substantive law. In a number of Polish laws, the inaction of the administration is seen as bound to have certain legal consequences. Such rules cause many doubts both at the theoretical and practical level, and raise questions about the antidote to such unwanted inactivity of administration. The general clause of positive or negative fictitious adjudication in administrative matters is present in many legal systems. However, in the Polish legal system it lacks a legal definition and the silent settlement handling of the case entails problems of its classification as part of the legal forms of administration. The article shows that the mere introduction of procedural regulations will not result in a breakthrough in the institution of silent positive settlement of the matter, if the legislator does not balance the types of cases to which silence can be applied. Undoubtedly, both substantive and procedural law rules for the regulation of silent settlement are necessary and indispensable. As for substantive law, it should be a well thought-out concept in which silence of administrative bodies in handling matters could be applied without affecting the public interest or the interests the applicant, or any other party to the proceedings. On the other hand, procedural regulations are to guarantee the protection of the rights administered against the inactivity or lack of action by administrative bodies, or lengthy and protracting proceedings. Therefore, the legislator should ensure a well-considered qualification of cases to be recognised in a simplified manner, as well as adopt specific provisions that give competence to administrative bodies to settle matters tacitly so that the institution accomplishes the intended objectives of administrative improvement, and at the same time does not violate the procedural rights and guarantees of the parties for whom silence has legal effects.

scholarly journals Inspection Regulation between General Procedural Codification and Field Specifics – a Case Study of Slovenia

2016 ◽  
Vol 7 (1) ◽  
pp. 1-17
Author(s):  
Polonca Kovač
Keyword(s):  
Public Interest ◽  
Role Model ◽  
Legal Protection ◽  
Case Law ◽  
Comparative Methods ◽  
The Public ◽  
Administrative Procedure ◽  
National Constitution ◽  
The Eu

Abstract Inspection, as the authoritative supervision of private liable persons to comply their activities with sector-specific laws, should ensure the full implementation of public policies. Slovenia adopted the Inspection Act (IA) in 2002, in order to conduct efficient inspection, and simultaneously guarantee the defence rights of the supervised parties pursuant to the fundamental principles of the EU, the national Constitution, and general Administrative Procedure Act. This article addresses the search for a balance between general codification and sector-related specifics as stipulated by the IA, applying normative, constitutional case law and comparative methods. Special attention is dedicated to the IA rules regarding participants, their legal protection and stages of respective proceedings. It has been concluded that the most of the IA specifics are justified in order to efficiently serve the public interest. This study reveals that the Slovene IA can represent a role model for efficient yet democratic supervision in other MS as well.

scholarly journals Przyszłość form konsensualnych w postępowaniu administracyjnym

2019 ◽  
pp. 53-73
Author(s):  
Joanna Wegner
Keyword(s):  
Public Interest ◽  
Subject Matter ◽  
European Countries ◽  
The Public ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Returning To Work ◽  
The Individual ◽  
Administrative Proceedings ◽  
Made In

The article presents the institution of an administrative agreement from the perspec-tive of legal solutions in force in selected European countries. The increase in the number and diversity of tasks performed by the administration and the multitude of conducted proceedings encourage the search for alternative forms of settling a case in relation to an administrative decision. The administrative agreement is one of them. The analysis of foreign regulations confirms that the institution in question belongs to the modern procedural laws. The scope of regulation varies, as do the individual solutions concerning the admissibility and mode of concluding the contract, its subject matter, the mechanisms for removing defects, the grounds for contestability of the contract and its enforceability. It turns out that in individual European orders two patterns of regulation dominate: French and German, although they are subject to significant modifications. The performance of certain public tasks by private parties on the basis of an administrative agreement provides for certain guarantees not only for the parties to the agreement but also for the beneficiaries of those tasks. This particular type of contract allows adequate protection of the public interest. The prevalence of the administrative agreement in Europe prompts the author to formulate a conclusion on the need to include this institution in the home system. The attempt made in the 2017 reform of the Administrative Procedure Code to include in it an administrative agreement was unsuccessful. The provisions on an administrative agreement that were then drafted were intended to give a deeper meaning to mediation, a new institution in administrative proceedings, which is currently not popular. Mediation was to precede the conclusion of an administrative agreement. However, there are no significant obstacles to returning to work on the regulation of this institution, which is so widely used in other European countries, and which is clearly lacking in its home Code

Uniform Defamation Laws in Australia: Moving towards a More ‘Reasonable’ Privilege?

2011 ◽  
Vol 138 (1) ◽  
pp. 9-20
Author(s):  
Rhonda Breit
Keyword(s):  
Mass Media ◽  
Public Interest ◽  
Case Law ◽  
Current Approach ◽  
The Public

A new uniform defamation regime now operates in Australia. This article canvasses the Uniform Defamation Laws (UDLs), focusing on the defence of qualified privilege and its capacity to protect mass media publications in the public interest. Drawing on case law and analysis of the key approaches to statutory privilege, the article evaluates the current approach to statutory qualified privilege. Taking account of observations in O'Hara v Sims (2008, 2009) about the operation of qualified privilege, it questions whether the UDL statutory qualified privilege will ultimately censor publications in the public interest and restrict the application of the qualified privilege defence.

scholarly journals The concept and essence of the principle of inadmissibility of abuse of procedural rights in administrative judiciary

2021 ◽  
Vol 66 ◽  
pp. 135-141
Author(s):  
Yan Bernazyuk
Keyword(s):  
Case Law ◽  
Fair Use ◽  
Public Interests ◽  
Procedural Law ◽  
European Court ◽  
The Supreme Court ◽  
Legal Legitimacy ◽  
Definition Of ◽  
Administrative Proceedings ◽  
Procedural Rights

The article is devoted to the definition of the peculiarities of observance in administrative proceedings of the principle of inadmissibility of abuse of procedural rights. The concept and essence of abuse of procedural rights in administrative proceedings are clarified, the meaning of the principle of inadmissibility of abuse of procedural rights is established. The legal basis of the principle of inadmissibility of abuse of procedural rights in administrative proceedings is investigated. Based on the analysis of the case law of the Supreme Court, the European Court of Human Rights established the content of the principle of inadmissibility of abuse of procedural rights. The opinion that the abuse of procedural rights is opposed to the conscientious abuse of procedural rights by the parties is substantiated. The author argues that the abuse of procedural rights may be recognized as actions or omissions of a party to the case, which are characterized by a sign of apparent legal legitimacy, but are used for the opposite or inconsistent with the pursuit of the relevant procedural right or obligation. Based on the analysis of the Constitution of Ukraine, international acts, laws of Ukraine and case law, it is proved that the main purpose of the principle of inadmissibility of abuse of procedural rights is to guarantee the fair use of their procedural rights. The author discloses the content of the fair use of the parties' procedural rights, which includes the use of the relevant rights for the purpose for which these rights are granted, and in the manner prescribed by procedural law, as well as conscientious performance of duties specified by law or court. The study made it possible to state that the introduction of the principle of inadmissibility of abuse of procedural rights is important for improving the effectiveness of administrative courts to protect the rights and interests of individuals, public interests and the interests of the state.

scholarly journals DETERMINING INDIVIDUAL CATEGORIES OF ADMINISTRATIVE PROCEDURES FOR PUBLIC REGISTRATION OF CIVIL STATES WITH ACCOUNTING OF LEGISLATIVE TRANSFORMATIONS

2019 ◽  
pp. 170-173
Author(s):  
O. H. Pohrebniak
Keyword(s):  
Administrative Law ◽  
The Public ◽  
Administrative Procedure ◽  
Modern Development ◽  
The Status ◽  
Civil Status ◽  
Administrative Procedures ◽  
State Registration ◽  
Administrative Proceedings ◽  
Theoretical Developments

The article defines certain peculiarities of administrative proceedings of state registration of marriage and establishment of paternity in Ukraine. It has been established that the procedures for state registration of acts of civil status are types of administrative procedures, it should first be noted that the general normative act which should define the notions and peculiarities of such procedures should be the Law of Ukraine “On the administrative procedure” 2018, which at present time is a project and submitted to the VerkhovnaRada of Ukraine for consideration. As a rule, scholars agree that the administrative procedure is directly related to the activities of the public administration and is an established algorithm for the functioning of the subjects of power. In this case, the procedures for state registration of acts of civil status are no exception. They are a kind of administrative procedures and implemented by state authorities, and in certain cases, and by local self-government bodies. At the same time having its own peculiarities regarding the procedure for implementation and the subject structure of such procedures. It has been established that the modern development of domestic administrative legislation and the practice of its application testifies that at present the administrative procedure as an independent component of administrative law has not yet been fully formed, although, given the active theoretical developments of the representatives of the administrative and legal science on the pages of scientific, journalistic and educational publications concerning the concept, features, types and structure of administrative procedures, and referring to the active legislative development of this tyranny, it is safe to say that the process of the administrative procedure in the structure of administrative law is actively continuing. Therefore, on the basis of theoretical developments and practical features, the author’s understanding of the concept of “administrative procedure of state registration of acts of civil status” is determined. In addition, given the specific features of administrative proceedings for state registration of civil status acts, as well as for a more complete clarification of the status and authority of all participants in certain administrative procedures, the necessary additional introduction of the concept of “implementation of the administrative procedure” is argued. Such category will allow to find out the place, role and authority not only of the administrative body, but also other participants in administrative proceedings. Thus, under the implementation of an administrative procedure, it should be understood as the observance, execution, use and application of procedural steps directed at the consideration and resolution of an administrative case.

THE POSITION OF THE PUBLIC PROSECUTOR IN ADMINISTRATIVE PROCEEDINGS – LEGAL ANALYSIS

2021 ◽  
Vol 1 (XXI) ◽  
pp. 97-114
Author(s):  
Michał Sędziński
Keyword(s):  
Rule Of Law ◽  
Public Prosecutor ◽  
Special Role ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
The Rule Of Law ◽  
The Public ◽  
Administrative Procedure ◽  
Court Proceedings ◽  
Administrative Proceedings

The aim of this article is to comprehensively analyse the legal position of the public prosecutor in administrative proceedings and administrative court proceedings. This subject is interesting because the public prosecutor is usually associated with criminal proceedings and his capacity as the public accuser. However, the public prosecutor plays a special role in administrative proceedings, i.e. participates in them as an entity with the rights of a party, even though he has no legal interest in it. It is also worth noting that the powers of the public prosecutor are clearly more extensive than those of other entities with the rights of a party. This article is an attempt to determine the role of the public prosecutor in administrative proceedings and decide whether he is the accuser or rather the representative of the public interest. The position of the public prosecutor in proceedings before administrative courts is special as well. This issue needs to be discussed in detail, which was taken into account in the second part of the article. The position of the public prosecutor as the advocate of the rule of law is regulated by the Act on the Public Prosecutor’s Office. The analysis of these provisions in conjunction with Chapter 4 of the Code of Administrative Procedure leads to a conclusion that the public prosecutor who acts in administrative proceedings as an entity with the rights of a party has powers vested in him alone and watches over such proceedings, thereby fulfilling the duties of an advocate of the rule of law. To fully show the special position of the public prosecutor, it is necessary to enumerate his powers in administrative proceedings and compare them with the competences of “ordinary” entities with the rights of a party.

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