scholarly journals Sądowa kontrola decyzji organów podatkowych w sprawach ulg w spłacie zobowiązań podatkowych opartych na uznaniu administracyjnym

2021 ◽  
Vol 30 (4) ◽  
pp. 441
Author(s):  
Andrzej Niezgoda
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Point Of View ◽  
Administrative Discretion ◽  
The Public ◽  
Procedural Law ◽  
Tax Relief ◽  
The Law ◽  
Administrative Courts

<p>The article is of a scientific-research nature. The author discusses the problem of limits of judicial review of discretionary decisions made by taxation authorities, which aim at applying relief in payments of tax liabilities under Polish regulations and case-law of administrative courts. It may be noted that despite the issue of administrative discretion being discussed in the academic literature, the question of limits of judicial review in the practice of administrative courts still raises doubts. It is therefore reasonable to undertake the analysis of the main views formulated in the literature and the case-law of administrative courts addressing this problem, from the point of view of the limits of judicial review of discretionary decisions. The thesis of the article is that the nature of discretionary decisions on relief in payment of tax liabilities, determined by the function of administrative discretion, and, at the same time, the criteria set out in the law for judicial review of public administration, limit the role of the administrative court in examining the compliance with procedural law of the tax proceedings preceding the issuance of such a decision and the respecting by tax authorities of the fundamental values of the system of law expressed in the Polish Constitution. This is because they define the limits of administrative discretion, within which the choice of one of the possible solutions remains beyond the judicial review of the public administration. For the law, as it stands (<em>de lege lata</em>) there are no grounds for administrative courts, provided that the tax authorities respect the basic values of the legal system expressed in the Polish Constitution, to formulate assessments as to the circumstances and reasons justifying the granting or refusal to grant a tax relief, or its scope. The concept of internal and external limits of administrative discretion may therefore be useful for administrative court rulings.</p>

Administrative Procedure and Judicial Review in Lithuania

2021 ◽  
pp. 69-71
Author(s):  
Agnė Andrijauskaitė
Keyword(s):  
European Union ◽  
Public Administration ◽  
Judicial Review ◽  
General Rule ◽  
The European Union ◽  
The Public ◽  
Administrative Procedure ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Proceedings

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.

scholarly journals Judical review of discretionary powers in the activity of historical monuments protection bodies. The experience under the case law of Polish administrative courts

2018 ◽  
Vol 2 (2) ◽  
pp. 6-29
Author(s):  
Jerzy Parchomiuk
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
The Body ◽  
Final Decision ◽  
The Public ◽  
Historical Monuments ◽  
Administrative Courts ◽  
The Individual ◽  
Discretionary Powers

The sovereign nature of the forms of operation of cultural heritage protection authorities, the polarization between the individual interest and the public interest, discretion margin in the activities of the authorities, all these elements create a kind of “explosive mixture”, which is the source of the legal disputes between the owners of historical monuments and historical monuments protection bodies. The key element of the guarantee of individual freedom is judicial review of public administration. Therefore, it is a matter of dispute to which extent the public administration is subject to judicial review when performing the tasks entrusted. The aim of this article is to analyze how Polish administrative courts approach the problem. What methodology of the review of discretion margin they use? How they solve the dilemma: who makes the final decision – the body or the court? Do they retain the judicial self-restraint or rather they are willing to interfere in the merits of the decision?

scholarly journals Legislation on Administrative Procedures: The German Experience

2021 ◽  
Vol 18 (2) ◽  
pp. 204-215
Author(s):  
A. D. Maile
Keyword(s):  
Public Administration ◽  
Legal Protection ◽  
Public Law ◽  
The Public ◽  
Administrative Procedure ◽  
Procedural Law ◽  
General Order ◽  
Administrative Procedures ◽  
Administrative Act ◽  
The Law

This article provides an overview of the main provisions of German administrative procedural law. It outlines in a systematic way the particularities of administrative procedures and the possibilities for a citizen to seek administrative remedy. The essence of the basic principles of administrative procedural law as well as the particularities of temporary legal protection and the possibilities for an extrajudicial appeal against an administrative act are explained to the reader. The Author points out that administrative proceedings in Germany are, in a broad sense, any decision-making activity of a public administration body. According to the German Administrative Procedure Act, an administrative procedure in the sense of the law is an externally imposed activity of the administrative authorities that is aimed at verifying the conditions, preparing and issuing an administrative act or entering into a public-law contract. At the same time, the activities of a public administration body are not bound by a specific form, unless there are specific rules on the form of procedure. It is stated that current German administrative law distinguishes between an administrative act and a general order. The latter is also an administrative act, the range of addressees, however, is wider. An administrative act according to the law is any order, decision or other authoritative action of an administrative body aimed at regulating a single case in the field of public law and having direct legal consequences of an external nature. A general order is an administrative act, which is addressed to a certain or defined by general features, or which concerns the public-law properties of a thing or the use of it by the public. The author notes that an administrative act must be specific in content, justified and announced to the participants in the proceedings. As long as the act has not been declared, it is invalid. An administrative act is valid from the moment it is announced, unless it itself provides otherwise. It continues in force until it is revoked, cancelled, terminated by a deadline or for any other reason specified in the law. Based on the analysis, it is concluded that the lack of a law on administrative procedures in Russia is a negative indicator of the modern Russian administrative legal system.

scholarly journals Constitutional principles in public administrator's decision-making under the case law of the Supreme Administrative Court of Lithuania

2018 ◽  
Vol 2 (1) ◽  
pp. 109-115
Author(s):  
Ieva Deviatnikovaitė
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Principle ◽  
Family Names ◽  
Administrative Courts ◽  
The Republic

This paper serves few purposes. First, it examines the principles of public administration in Lithuania. Good administration principle is analysed as constitutional principle relying on the case law of the Supreme Administrative Court of Lithuania. Second, it explores impact of the decisions of Constitutional Court of the Republic of Lithuania to the contemporary judicial review of Lithuanian administrative courts. Therefore, one of the latest rulings of the Supreme Administrative Court of Lithuania related to the spelling of names and family names in the passports of citizens of the Republic of Lithuania will be reviewed.

scholarly journals Discricionariedade e controle na tutela do patrimônio histórico e cultural: reserva da administração na escolha entre interesses públicos concorrentes e os limites da intervenção dos poderes judiciário e legislativo

2016 ◽  
Vol 1 (2) ◽  
Author(s):  
Patrícia Baptista Ferreira
Keyword(s):  
Public Administration ◽  
Public Interest ◽  
Judicial Review ◽  
Due Process ◽  
Primary Role ◽  
Administrative Discretion ◽  
Public And Private ◽  
The Public ◽  
National Heritage ◽  
Artistic Heritage

<p><strong>DISCRICIONARIEDADE E CONTROLE NA TUTELA DO PATRIMÔNIO HISTÓRICO E CULTURAL: RESERVA DA ADMINISTRAÇÃO NA ESCOLHA ENTRE INTERESSES PÚBLICOS CONCORRENTES E OS LIMITES DA INTERVENÇÃO DOS PODERES JUDICIÁRIO E LEGISLATIVO </strong></p><p><strong>Resumo:</strong> A proteção constitucional do patrimônio histórico e cultural como interesse difuso incrementou o contencioso sobre o tema. A decisão de preservar, ou não, um bem e a escolha do instrumento adequado para isso situam-se, porém, na esfera de discricionariedade do Executivo. O Judiciário, portanto, deve adotar postura deferente aos juízos de mérito da Administração, competindo-lhe zelar pela observância do devido processo legal. O Legislativo, por sua vez, tem papel restrito ao exercício da competência normativa.</p><p><strong>Palavras-chaves:</strong> Discricionariedade administrativa, patrimônio histórico, controle judicial, controle legislativo, tombamento, reserva da administração, devido processo legal, interesse público, responsabilidade.</p><p><strong>ADMINISTRATIVE DISCRETION AND JUDICIAL REVIEW REGARDING THE PROTECTION OF NATIONAL HERITAGE: THE PUBLIC ADMINISTRATION PRIMARY ROLE TO CHOOSE AMONG SEVERAL COMPETING PUBLIC INTEREST AND THE LIMITS OF JUDICIAL AND LEGISLATIVE INTERVENTION ON THIS SUBJECT</strong></p><p><strong>Abstract:</strong> Brazil´s 1988 Constitution qualifies national historic and artistic heritage as a diffuse interest worthy of protection of Public Administration. Since then, judicial disputes regarding this subject have significantly increased. The decisions about whether and how to protect a historical site belong to the administrative sphere of discretion. Thus, judicial review should defer to administrative decisions, unless the due process clause rests violated. Legislative role on the subject is limited on rulemaking.</p><p><strong>Keywords:</strong> Administrative discretion, national historical and artistic heritage, protection of historical and artistic sites, judicial review, legislative review, due process, public interest, public and private accountability.</p><p><strong>Data da submissão:</strong> 08/11/2016                   <strong>Data da aprovação:</strong> 08/12/2016</p>

scholarly journals Toolbox of the Public Administration Entity. Intersection of the Principle of Legality and Administrative Discretion in Exercising the Revocation of an Administrative Decision

2021 ◽  
Vol 5 (2) ◽  
pp. 63-74
Author(s):  
Simona Bareikytė
Keyword(s):  
Public Administration ◽  
Case Law ◽  
Legal Regulation ◽  
Administrative Discretion ◽  
Public Interests ◽  
The Public ◽  
Private And Public ◽  
Administrative Procedures ◽  
Principle Of Legality

For some, revocation of an administrative decision arises doubts, for others, it is a legal measure ensuring that public administration entities are able to respond to changing circumstances and adopt not only legitimate, but also fair decisions by striking a balance between private and public interests. This paper aims to analyse the choice of Lithuania with respect to the implementation and application of the public administration entities right to revoke its previously adopted administrative decision. In order to achieve this goal, the results of analysis of the role of the principle of legality and administrative discretion in the decision-making process, legal regulation of public administration and case-law are revealed. The analysis will show that there is room for the possible systematisation of the administrative procedures, aiming to ensure that public administration entities are able to respond to the ongoing changes in order to fulfil the objectivities based on which the particular public administration entities were established.

scholarly journals The Judicial Disciplinary Procedures of the New Zealand Rugby Football Union

1999 ◽  
Vol 29 (2) ◽  
pp. 317
Author(s):  
Maryanne Haggie
Keyword(s):  
New Zealand ◽  
Judicial Review ◽  
Case Law ◽  
Criminal Prosecution ◽  
The Public ◽  
Criminal Sanctions ◽  
Court Action ◽  
Disciplinary Procedures ◽  
The Law

This article examines the model established by the New Zealand Rugby Football Union Inc (NZRFU) to deal with acts of violence on the rugby field. The interface between sport and the law becomes relevant when society perceives sportsfield violence as going beyond acceptable boundaries. Identifying where these boundaries lie is problematic given the traditional reluctance of both sports administrators and the courts to invoke criminal sanctions for violence in sport. Part II examines violence in rugby, the limits to the consent defence, New Zealand case law on rugby violence and the likelihood of increased court action. It looks at the debate surrounding the appropriateness of internal disciplinary tribunals for sportsfield violence, and explores the criteria sports organisations must meet to avoid criminal prosecution of their players or judicial review of their internal disciplinary decisions. Part III outlines the establishment of NZRFU procedures to deal with violence in rugby and how they operate at local, national and international levels. In Part IV, the main features of the NZRFU's judicial disciplinary procedures are reviewed. It concludes that the NZRFU has created an effective and fair set of disciplinary rules to deal with violence in rugby, which has been extended to international competitions. However, there are some problems in its application. It will be suggested that changes could be made to the NZRFU's internal disciplinary procedures to improve consistency and independence and ultimately demonstrate to the rugby community, the courts and the public that violence in rugby is decreasing.

scholarly journals A judicial review of the inactivity of public administration in the Slovak Republic

2019 ◽  
Vol 16 (4 (2)) ◽  
pp. 55-64
Author(s):  
Matej Horvat
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Legal Theory ◽  
Slovak Republic ◽  
Legal Regulation ◽  
Point Of View ◽  
The Public ◽  
Justice Procedure ◽  
Legal Remedies ◽  
Administrative Justice

The article focuses on inactivity of the public administration in the Slovak Republic. It analyses this malfunction of the public administration from the point of view of the legal theory, international legal regulation as well as national legal regulation. The emphasis is on the national legal regulation that should provide effective legal remedies on how to eliminate inactivity of the public administration – namely the Constitution of the Slovak Republic, the Act on Administrative Proceeding and the Act on Administrative Justice Procedure. The article analyses the new legal regulation on a judicial review of inactivity stipulated in the Act on Administrative Justice Procedure and compares it with the previous legal regulation. The aim is to conclude which legal regulation is more effective and describe why it is so.

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

The Constitutional Principle of Accountability: A Study of Contemporary South African Case Law

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
Judicial Review ◽  
Police Officers ◽  
Public Procurement ◽  
Case Law ◽  
The State ◽  
Constitutional Principle ◽  
Starting Point ◽  
The Law ◽  
Constitutional Right ◽  
The Many

‘Accountability’ is one of the democratic values entrenched in the Constitution of South Africa, 1996. It is a value recognised throughout the Constitution and imposed upon the law-making organs of state, the Executive, the Judiciary and all public functionaries. This constitutional imperative is given pride of place among the other founding values: equality before the law, the rule of law and the supremacy of the Constitution. This study therefore sets out to investigate how the courts have grappled with the interpretation and application of the principle of accountability, the starting point being the relationship between accountability and judicial review. Therefore, in the exercise of its judicial review power, a court may enquire whether the failure of a public functionary to comply with a constitutional duty of accountability renders the decision made illegal, irrational or unreasonable. One of the many facets of the principle of accountability upon which this article dwells is to ascertain how the courts have deployed that expression in making the state and its agencies liable for the delictual wrongs committed against an individual in vindication of a breach of the individual’s constitutional right in the course of performing a public duty. Here, accountability and breach of public duty; the liability of the state for detaining illegal immigrants contrary to the prescripts of the law; the vicarious liability of the state for the criminal acts of the police and other law-enforcement officers (as in police rape cases and misuse of official firearms by police officers), and the liability of the state for delictual conduct in the context of public procurement are discussed. Having carefully analysed the available case law, this article concludes that no public functionary can brush aside the duty of accountability wherever it is imposed without being in breach of a vital constitutional mandate. Further, it is the constitutional duty of the courts, when called upon, to declare such act or conduct an infringement of the Constitution.

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