scholarly journals On the question of the signs of administrative Discretion

2021 ◽  
Vol 3 ◽  
pp. 48-51
Author(s):  
Y.V. Onosov ◽  
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Additional Research ◽  
Administrative Discretion ◽  
Internal Process ◽  
Judicial Control ◽  
Legal Science ◽  
Optimal Law Enforcement ◽  
The Subject ◽  
State Coercion

In legal science, the issue of judicial enforcement discretion seems to be the most studied, at the same time, the study of administrative law enforcement discretion does not cease to be relevant in view of its special specifics. The article attempts to highlight and analyze the essential characteristics of administrative discretion. According to the author, it is necessary to highlight and scientifically analyze a number of essential characteristics of administrative discretion: administrative discretion is a process of activities to select an optimal law enforcement decision by a subject of law, as well as the result of this activity; the presence in the legislation of legal mechanisms for limiting administrative discretion; implementation of administrative discretion in the application of measures of state coercion; administrative discretion is the best option for the balance between legality and expediency; the presence of freedom in the activities of the law enforcement body; the intellectual-volitional internal process of the subject of law applying. On the basis of the above, it is concluded that additional research is needed on the effectiveness of judicial control over the administrative discretion of state bodies

The grounds and conditions of securing a claim in administrative proceedings

2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Yara Olena ◽  
◽  
Kravchuk O.V. ◽  
Keyword(s):  
Law Enforcement ◽  
Subject Matter ◽  
Direct Connection ◽  
Individual Rights ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Legal Science ◽  
The Subject ◽  
Administrative Proceedings

The article examines the grounds and conditions of securing a claim in administrative proceedings. By analyzing the legal provisions, law enforcement (judicial) practice in connection with the acquisitions of legal science, the grounds and conditions of securing a claim in administrative proceedings are highlighted. Attention is focused on problematic issues that arise when courts check the grounds for securing a claim and compliance with the terms of securing a claim. In particular, attention is drawn to the fact that securing an administrative claim on the grounds of obvious signs of illegality of the decision, action or inaction of the subject of power is virtually inapplicable due to reservations about the inadmissibility of resolving the dispute on the merits. It is concluded that an administrative lawsuit can be secured if there is at least one of the grounds specified in part one of Article 150 of the Code of Administrative Procedure of Ukraine and compliance with the conditions of proportionality, adequacy of measures to ensure administrative lawsuit, direct connection with the subject matter and legal the defendant's conduct in the dispute. Emphasis is placed on the fact that the freedom of discretion (discretion) of the court in the application of measures to ensure an administrative claim is unconditional, but not unlimited and controlled by the requirement to properly justify the relevant procedural action. Keywords: administrative court, administrative claim, administrative proceedings, securing the claim, principles of administrative proceedings, protection of individual rights and freedoms, grounds for securing the claim, conditions for securing the claim

scholarly journals On Understanding the Administrative Law Subject

2020 ◽  
Vol 12 ◽  
pp. 18-20
Author(s):  
Olga N. Ordina ◽  
Keyword(s):  
Public Administration ◽  
Legal Theory ◽  
Administrative Law ◽  
Executive Power ◽  
Legal Science ◽  
Different Types ◽  
Common Concept ◽  
The Subject ◽  
Points Of View ◽  
Definition Of

In the administrative and legal science there is a refinement, change and expansion of the subject of the dynamic branch of administrative law, aimed at eliminating the resulting lag of legal theory from the legal reality. In our view, of the three basic categories that characterize the subject of administrative law, “public administration”, “executive power” and “administrativepublic activity”, the main generalization category is the category “administrative and public activities”. The phenomenon of the subject of administrative law refracts the problems and discussions inherent in the industry as a whole. In view of the existence of different points of view on the subject of administrative law, the legal science has not yet formulated a single definition of it. There is a tendency to overcome the conflict between different types of understanding, to bring together the positions of different concepts of understanding of administrative law in order to form a “universal” concept of it, to develop its common concept.

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 A EVOLUÇÃO DO CONTROLE JURISDICIONAL DA DISCRICIONARIEDADE ADMINISTRATIVA E SEUS REFLEXOS JURISPRUDENCIAIS

2019 ◽  
Vol 2 (55) ◽  
pp. 516
Author(s):  
Lauro ISHIKAWA ◽  
Clóvis Smith FROTA JÚNIOR
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
Administrative Discretion ◽  
The Rule Of Law ◽  
Judicial Control ◽  
De Se ◽  
Deductive Method ◽  
Direct Linkage ◽  
Jurisdictional Control ◽  
Legal Concepts

RESUMO O presente artigo discorre sobre a evolução do controle sobre os atos administrativos discricionários, em especial a sindicabilidade do “mérito” destes, perpassando as diferentes teorias surgidas, desde a consolidação da ideia de Estado de Direito. Logo após, discorre-se sobre a admissão do controle judicial quanto aos elementos vinculados do ato, e, em seguida, sobre esse controle a partir de parâmetros implícitos da lei. Posteriormente, discorre-se sobre a teoria da vinculação direta aos princípios e dos atos “vinculados” por conceitos jurídicos indeterminados. Por último, aborda-se a teoria do enfoque jurídico-funconal, para, então, concluir pela possibilidade de se verificar uma tendência de sistematização, no sentido de apontar alguns parâmetros para o controle jurisdicional da discricionariedade administrativa. É utilizado o método dedutivo, por meio de pesquisa realizada em legislação, doutrina e jurisprudência das Cortes Superiores. PALAVRAS-CHAVE: Direito Administrativo; Ato Administrativo; Discricionariedade; Controle Jurisdicional; Mérito do Ato; Conveniência e Oportunidade. ABSTRACTThis article discusses the evolution of the judicial control over discretionary administrative acts, especially the syndicability of the "merit" of these acts, crossing the different theories that have emerged since the consolidation of the idea of the rule of law. After discussing this judicial control in face of the rule of law, the admission of judicial control on the elements of the act is analyzed, and then, this control from implicit parameters of the law. Subsequently, there is a discussion of the theory of direct linkage to principles and "bound" acts by indeterminate legal concepts. Finally, it is discussed the theory of the legal-functional approach, and then, conclude that there is a tendency to systematize, in order to point out some parameters for the jurisdictional control of administrative discretion. The deductive method is used, through research conducted in legislation, doctrine and jurisprudence of the Superior Courts. KEYWORDS: Administrative Law; Administrative Act; Discretion; Judicial Control; Merit of the Act; Convenience and Opportunity.

The Constitutional Implications of Judicial Control of the Administration in the United Kingdom.

1967 ◽  
Vol 25 (1) ◽  
pp. 46-61 ◽  
Author(s):  
J. D. B. Mitchell
Keyword(s):  
United Kingdom ◽  
Prime Minister ◽  
Administrative Law ◽  
The Other ◽  
Judicial Control ◽  
The United Kingdom ◽  
The Subject ◽  
Legal Difficulties ◽  
Administrative Jurisdiction ◽  
The Way

When first I was invited to participate in this colloquium, I was given the title of “Constitutional difficulties to the introduction of a system of administrative law,” which I take to imply a full administrative jurisdiction. That subject was, in a sense, not exciting, except as a challenge to produce legal difficulties, under a system such as our own, to doing anything at all. Difficulties undoubtedly do exist, but they exist in the realm of psychology, not of rules of law. Even so they are important. A constitution does not live by legal logic alone, and the positive changes in law which the introduction of such a system would involve run counter to received, but unexamined, notions or myths, particularly those relating to Parliament. Such notions have surprising strength. It would have been difficult to persuade the Pontifex Maximus to lead the other Pontiffs into proclaiming the inadequacy of their mythology, let alone to lead them into propounding the virtues of a rival. Yet under our cult of Parliament this is precisely what the Prime Minister or the alternative Pontifex Maximus has to do. This change is beyond the scope of those subtle shifts which we can achieve by stealth, in the way in which we transferred power from King to Ministers. While these difficulties are real and must be mentioned, I take it that in the form in which the subject is now posed it is broader and that I can treat of the constitutional advantages as well as, and rather more than, these political difficulties.

scholarly journals The Concept of Administrative Law Prevention in the Modern Legal Thought

2021 ◽  
Vol 6 ◽  
pp. 26-29
Author(s):  
Aleksey M. Peresedov ◽  
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Public Authorities ◽  
Legal Thought ◽  
State Coercion ◽  
The Law ◽  
Modern Russian

In this article, the author studies the ideas of modern Russian scientists regarding administrative and legal prevention and its relationship with the mechanism of state coercion. In addition, the author analyzes the degree of compliance of such views with current Russian legislation and the law enforcement practice of public authorities.

scholarly journals The Authority of Internal Auditor to Prevent Corruption Committed by Civil Servants and Government Official

2020 ◽  
Vol 2 (2) ◽  
pp. 139-162
Author(s):  
Helmi Helmi ◽  
Iskandar Iskandar
Keyword(s):  
Law Enforcement ◽  
Legal Protection ◽  
Internal Audit ◽  
Law Enforcement Officers ◽  
Administrative Law ◽  
Civil Servants ◽  
Financial Loss ◽  
Government Officials ◽  
Internal Auditor ◽  
The Subject

Internal audit is significant to guarantee and ensure the enforcement of laws and regulations as well as to prevent power abuse by civil servants or government officials that may cause financial loss for the country. The purpose of this study is to provide an overview of the authority of internal audit, to describe how this authority is regulated, to depict the authority to prevent power abuse, and to illustrate the protection over and enforcement of administrative law on allegation of power abuse. This study is a normative juridical study analyzing primary and secondary legal material relevant to the subject under study. The result of the study reveals that the authority of internal audit has been set in various legal products. The operating procedures for legal protection over allegation of arbitrary behavior against civil servants or government officials are filing an objection or an appeal against the discovery of the internal audit. If the case is not a subject of investigation of law enforcement officers the accused may contest the finding to Administrative Court and request the judge to review the finding. If the accused is proven to be guilty of abusing power that causes financial loss for the state and, thus, be sentenced for the alleged conduct (inkracht), he or she shall be immediately dismissed from his/her position. The regulation posits that officer who ignores the verdict and continues to keep the  defendant on his/her position shall be penalized.

scholarly journals Subjective good faith in tax law

2020 ◽  
pp. 1-8
Author(s):  
Igor Valerevich Kharitonov
Keyword(s):  
Law Enforcement ◽  
Good Faith ◽  
Tax Law ◽  
Tax Administration ◽  
Legal Science ◽  
Private And Public ◽  
The Subject

The subject of this research is manifestation in tax law of the category of “good faith” in a subjective sense. The author reveals what it exactly means within legal science, as well as examines the aspects that must be considered when applicable to resolution of tax disputes. The article also addresses the key criteria, according to which private and public parties of tax relations can be deemed not in good faith in the subjective sense of this category. The main conclusions of the conducted study consist in the fact that good faith in the subjective sense within law enforcement represents an efficient, but simultaneously poorly researched means of counteracting abuse that emerges in the sphere of tax law. It should be applied not only towards private parties of tax legal relations, but also towards the tax administration. At the same time, this category is practically not researched within the science of tax law, which substantially impacts the efficiency and justification of its implementation by the courts in resolution of tax disputes.

scholarly journals Some aspects of efficiency of authority of the executive branch of government

2020 ◽  
pp. 1-10
Author(s):  
Anton Olegovich Ermakov
Keyword(s):  
Law Enforcement ◽  
Social Impact ◽  
Executive Branch ◽  
Administrative Law ◽  
Social Aspect ◽  
Legal Norms ◽  
Private And Public ◽  
The Subject ◽  
Theory Of Law ◽  
Legal Entities

The subject of this research is the efficiency of authority of the executive branch of government. The author reviews the approaches used in the general theory of law and administrative law towards definition of efficiency, making emphasis on the social aspect of efficiency of legal norms. Leaning on the considered doctrines, the author includes into the structure of efficiency of authority the socially substantiated goal of their realization, which in his opinion consists in ensuring enforcement of right and responsibilities of the citizens and legal entities (the subject of administrative law without authority). Based on the provisions of legislative acts and law enforcement practice, the article examines the organizing principle of authority that allows accomplishing the purpose of authority, determines its possible manifestations, as well as the conditions under which such principle can be implemented. The following conclusions were made: 1) the foundation for determining the efficiency of authority of the executive branch of government consists in their social impact, which is reflected in the level of implementation of the rights and responsibilities by the subjects of administrative law without authority; 2) since the efficiency represents feature of the system, it must be applicable to not to a separate measure of authoritative influence, but their ordered entirety, aimed at ensuring specific rights and responsibilities of the subjects of administrative law without authority; 3) the combination of lawmaking and law enforcement authorities, which in the conditions of their normative consolidation through assistance in exercising rights and responsibilities of private and legal entities, allows aligning private and public interests in various spheres of state administration.  

scholarly journals An Analysis on the Control of Administrative Discretion

2021 ◽  
Vol 9 (4) ◽  
Author(s):  
Xiaojian Feng
Keyword(s):  
Law Enforcement ◽  
Judicial Review ◽  
Administrative Law ◽  
Discretionary Power ◽  
Administrative Discretion ◽  
Administrative Agency ◽  
Administrative Power ◽  
Law Enforcement Agency ◽  
Administrative Agencies ◽  
The Law

Administrative discretion means that administrative agencies can exercise their rights based on their own judgment and actual conditions when dealing with matters that are not authorized by the law or have not made detailed provisions.The existence of administrative discretion is not only the result of the expansion of administrative power,but also to adapt to administrative differences in different regions and departments,and to maintain social fairness and justice.However,the existence of rights leads to abuse and corruption,which requires the legislature to control the problem of excessive discretionary power from the source. The administrative law enforcement agency further improves the administrative reconsideration,strengthens the selection and supervision of the staff of the administrative agency,and the judicial agency improves the judicial review.

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