scholarly journals Modernizing Administrative Procedural Law in Slovenia as a Driving Force of Efficient and Good Administration

2011 ◽  
Vol 4 (2) ◽  
pp. 39-66 ◽  
Author(s):  
Polonca Kovač
Keyword(s):  
Driving Force ◽  
Swot Analysis ◽  
Historical Method ◽  
Eu Member States ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Usa ◽  
Administrative Procedures ◽  
Traditional Patterns

Abstract The article presents the current organization and the past and potential development of administrative procedural law - particularly the General Administrative Procedure Act - in Slovenia from its independence in 1991 till 2011. The author critically evaluates the regulation of general and special administrative procedures in Slovenia in light of the insufficient overcoming of traditional patterns. Namely the regulation in place overprotects the rights of parties and rather neglects the efficiency of administrative procedures as a whole. The evaluations are supported by the development of the theory of governance, radical changes in society and the need for a shift in the understanding of state / authority in the system in Slovenia and other countries (e.g. Finland, Croatia or the USA). The Slovenian system is firstly analyzed using the historical method and later on, it is assessed in terms of the efficiency of administrative procedures as regulated and run in administrative and judicial practice by means of a SWOT analysis. Additionally, particular emphasis is put on the comparative analysis of the Slovenian system to internationally recognized principles in administrative matters, deriving from the experience of the ECHR, the EU Ombudsman code and EU member states, and theory. The main finding is that in comparison, the standardization of parties’ rights far exceeds basic rights of defense as framed in constitutional terms which in several ways diminishes the overall efficiency of administration. The author therefore proposes the basis for a multilevel model of governing administrative relations de lege ferenda, intended to regulate in more detail the procedural status of the parties on one side and simultaneously the pursuit of public interest on the other. Based on the latest scientific findings, the criteria for differentiation include: relevance of the subject, degree of conflictuality of interests, need for rationality and efficiency of administration, and the position of the authoritative body. The objective is to move administrative procedural law from the margins of modernization of the public administration as found in the development of the Slovenian system in the last two decades and to make it its driving force, instead.

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 Comparative legal analysis types of administrative procedure

2020 ◽  
pp. 29-37
Author(s):  
O. Markova
Keyword(s):  
The United States ◽  
Legal Analysis ◽  
Administrative Procedure ◽  
Full Compliance ◽  
Foreign Countries ◽  
The Us ◽  
The Usa ◽  
Administrative Procedures ◽  
The Law ◽  
Administrative Proceedings

The author conducts a comparative legal study of the types of administrative procedure, using the experience of the United States, France and Poland in order to form a conceptual overview and a systematic approach to the typology of administrative procedure.The author monitors the procedural legislation of the above countries in order to consolidate the types of administrative procedure.In the course of research the author comes to conclusions, in particular: in the USA types of administrative procedure depend on type of rule-making. In accordance with the provisions of the US Federal Act “On Administrative Procedure” distinguish: formal rulemaking, informal, exclusive, hybrid and conciliatory. The approach of the Polish legislator to the types of administrative proceedings differs from the approach of the American legislator in a differentiated nature. The Code of Administrative Procedure reflects the general approach, as the types of proceedings presented in it cover the main activities of public administration bodies, and as for special – the legislator has provided for special regulation.In the legislation of many foreign countries, the general model of administrative procedure is fixed at the level of the Law or Code.As for the Ukrainian legislation, today, the Law “On Administrative Procedure” is absent, therefore, all procedures automatically become special. Details of various aspects of various types of administrative procedures take place both at the level of special laws and at the level of by-laws issued by other executive bodies. The list of these acts is so extensive and heterogeneous that there can be no question of the full compliance of the provisions embodied in them with each other. Moreover, such a variety obviously causes difficulties with the search for anapplicable norm for a private individual who is faced with a particular administrative procedure, and even for officials.The conducted comparative analysis of the species diversity of the administrative procedure will help us: firstly, to formulate a comprehensive vision and develop a unified approach, secondly, to rethink the conceptual framework within which the administrative procedure operates, and thirdly, it will provide an opportunity to introduce proposals into the project legislation.

scholarly journals MAIN CHARACTERISTICS OF ADMINISTRATIVE ACTS FROM THE PERSPECTIVE OF ADMINISTRATIVE PROCEDURE LAW OF LATVIA AND JUDICIAL PRACTICE

2019 ◽  
pp. 133-147
Author(s):  
Kristine Kore-Perkone
Keyword(s):  
Kyrgyz Republic ◽  
Main Concept ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Legal Literature ◽  
Administrative Procedures ◽  
Administrative Act ◽  
The Law ◽  
Classic Form ◽  
Definition Of

An administrative act is the main concept and instrument of administrative procedure. Despite the availability of other forms of the performance of public administration (for example, practical step, public law agreement, legislative action etc.), an administrative act is considered as an activity in classic form. Consequently, as a rule, the concept of an administrative act is analysed more frequently in the Latvian administrative judicial practice and legal literature. The article provides an overview of the main characteristics of administrative acts from the perspective of Administrative Procedure Law in Latvia. In the article, the author elaborates on several main characteristics of administrative acts from the perspective of judicial practice and Latvian doctrine. The author also undertakes а comparative analysis between the Latvian Administrative Procedure Law and the newly adopted Law on Administrative Activities and Administrative Procedures of the Kyrgyz Republic. From the above, it follows that the positive part of the definition of an administrative act in the Administrative Procedure Law of Latvia is the same as in the Law of the Kyrgyz Republic. Thus, both laws provide for similar features that a decision must have to be recognized as an administrative act. It is noted that the Administrative Procedure Law of Latvia includes an exception to the general principle that an interim decision is not an administrative act, apart from cases when the decision itself substantially affects the rights or legal interests of a person or substantially limits them. The definition of an administrative act, which is stipulated by the Law of the Kyrgyz Republic “On Administrative Activity and Administrative Procedures”, does not indicate that an administrative act is not an interim or procedural decision. The above does not mean that even now in Kyrgyzstan in order to recognize the decision as an administrative act, there must be no features of a final character. The jurisdiction of administrative offenses cases was changed from the jurisdiction of administrative courts to the courts of criminal jurisdiction. Consequently, the competence of administrative cases doesn’t involve considering administrative offences cases.

scholarly journals The European Competition Network in the European Administrative System: Theoretical Concerns

2018 ◽  
Vol 11 (17) ◽  
pp. 53-74
Author(s):  
Erzsébet Csatlós
Keyword(s):  
European Union ◽  
Level Structure ◽  
The European Union ◽  
The Public ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Legal Nature ◽  
Administrative Procedures ◽  
Core Issues ◽  
The Eu

The public administration of the European Union (EU) is a sui generis multi-level structure under constant development. After five decades of successful functioning, the European Union still lacks a coherent and comprehensive set of codified rules of administrative procedure at all levels. The existing acquis related to European administration and administrative procedures is fragmented, sector specific and although it is based on the constitutional principles of the democratic traditions of its Member States, such coincidence is often insufficient for the present requirements of good administration. The EU basically relies on indirect administration, while a growing number of cooperation forms exists of the competent authorities that aims to ensure efficacy of execution and to overcome diversity of non-harmonised legal areas. The aim of this paper is to place the European Competition Network (ECN) in this structure, explore and examine its legal nature as it is probably the most advanced example for such cooperation. The ECN incorporates and reveals the major procedural law questions of European administration; it is a rather successful form of cooperation, and although its core issues fail to correspond to the fundamental requirements of European administrative procedures, there seem to be positive changes in the evaluation of soft law and the functioning of the system.

Procedural Rights in Lithuanian Administrative Law – Resistance Fuelled by the Past?

2021 ◽  
Vol 14 (1) ◽  
pp. 167-183
Author(s):  
Agno Andrijauskaito
Keyword(s):  
Legal System ◽  
Case Law ◽  
Legal Framework ◽  
Eu Member States ◽  
Administrative Procedure ◽  
The Past ◽  
Administrative Procedures ◽  
The Right ◽  
Procedural Rights ◽  
Practical Implications

Despite the prevailing trend towards the codification of administrative procedures on the European plane – both on supranational and domestic levels –, the Lithuanian legal system stays immune to it. The purpose of this article is, hence, to explore the underlying reasons for the said resistance towards a clear enunciation of procedural rights on statutory level as well as its more practical implications in Lithuania. Namely, the main focus lies on the analysis of the said deficiencies as reflected by the administrative case law. In order to reach this goal, firstly, the (somewhat limited) notion of administrative procedure found in the legal framework of Lithuania is dissected and compared to respective notions found in few other legal systems of EU Member States boasting more comprehensive codifications of administrative procedure. Secondly, the relevant administrative case law in which the paradigmatic examples of procedural rights (such as the right to be heard and access to one's file) can be found is analysed. In the end, the reasons of the said resistance towards codification of procedural rights in the Lithuanian legal system are offered together with a reflection on whether that can still be justified in view of the results revealed by the case law analysis, or whether the time to innovate has come and the more coherent and logically-organized system of administrative procedure is needed.

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 Military and Political Integration of the Scandinavian Countries in the European Security Architecture after the Second World War

2017 ◽  
pp. 39-52
Author(s):  
Valerii Pavlenko
Keyword(s):  
Foreign Policy ◽  
Soviet Union ◽  
Political Integration ◽  
Security Architecture ◽  
European Security ◽  
Close Link ◽  
Eu Member States ◽  
The North ◽  
The Usa ◽  
The Military

The Article examines the military and political integration of Scandinavia in the European security architecture after 1945 and analyzes the historical experience of the countries of the North Europe in the late 1940s-1960s in the security space issues. Particular attention is paid to the close link between the military and political rapprochement with the processes of the economic, technological and political integration in the Western European region. It is emphasized that the economic basis of common interests encourages the EU member states all the time to seek peaceful means to resolve possible disputes. Considerable attention is paid to the analysis of alternative approaches to the European security that the North European countries have used in their foreign policy. The role and place of these countries in the sphere of the European security during the late 1940s-1960s was determined. The influence of the USA and the USSR on the formation of the foreign policy of the Scandinavian countries, especially the pressure of the Soviet Union on Finland in its attempts to get a neutral state status, has been shown. The reasons for the failure to implement the military and political cooperation projects in the form of the Scandinavian Defense Alliance have been revealed.

scholarly journals Legal Measures of State Care for the Family in the Republic of Belarus in the Forms of Family Protection and Marriage Strengthening

2021 ◽  
pp. 045-053
Author(s):  
M. V. Andryiashka ◽  
Keyword(s):  
Statistical Data ◽  
Additional Term ◽  
Marriage And Family ◽  
National Legislation ◽  
Administrative Procedure ◽  
The Family ◽  
Administrative Procedures ◽  
The Republic

The article analyzes individual measures aimed at protecting and strengthening the institutions of marriage and family in the Republic of Belarus, in particular, the establishment of a differentiated rate of state duty charged for divorce in both judicial and administrative procedures, as well as the provision of basic and additional term for divorcing spouses to take reconciliation measures. The article is based both on the norms of international legal acts and their interpretation by the authorized bodies, as well as on the norms of the national legislation of the Republic of Belarus and current statistical data. The article draws a number of conclusions: on the non-uniform application of security terminology in relation to the institutions of marriage and family; on the irrational approach to setting the rates of state fees charged for divorce in an administrative procedure; on unnecessary administrative barriers in the form of a two-month term for registration of a divorce in administrative procedure.

scholarly journals FRANCHISING AGREEMENT UNDER THE LEGISLATION OF FOREIGN COUNTRIES

2020 ◽  
Vol 1 (9) ◽  
pp. 33-37
Author(s):  
Oleksii Kucherenko ◽  
Keyword(s):  
Government Regulation ◽  
Self Regulation ◽  
Legal Regulation ◽  
Relevant Market ◽  
Eu Member States ◽  
Doing Business ◽  
Foreign Countries ◽  
The Usa ◽  
Key Terms ◽  
Local Levels

The article is devoted to the topical issue of studying the foreign experience of legal regulation of the franchise agreement. The author emphasizes that there is no comprehensive full-fledged regulation of the franchise agreement either in the national legislation of individual EU member states or at the international level. The article focuses on the franchisor's obligation to enter into an agreement to provide future franchisees with information about doing business under the franchise system, including the basic conditions of the franchise, data on the number of franchisees in the network, its growth, financial performance, etc. The experience of legal regulation of a franchise agreement in such foreign countries as the USA, Great Britain, Italy, Germany, Spain, Estonia, Lithuania, Australia, etc. is considered. The duality of the legal regulation of franchising at the federal and local levels, as well as the prevalence of the most favorable rules for franchisors (USA) is demonstrated. The author focuses on the experience of the institute of self-regulation of franchising and the establishment of appropriate criteria for franchise companies in the absence of government regulation (Britain). The need to adopt a single institutional law in the field of franchising and to enshrine in it all the key terms used in franchising: the actual franchise agreement, know-how, entrance fee, royalties (periodic payments for the use of intellectual property), the franchisor's goods (Italy). It is expedient to establish a provision on mandatory pre-contractual disclosure of information, according to which the counterparty is provided with information on experience, company experience, prospects for the development of the relevant market, duration of the agreement, terms of renewal or termination of contractual relations (France).

scholarly journals DEVELOPMENT OF THE ADMINISTRATIVE LAW IN THE KYRGYZ REPUBLIC

2020 ◽  
pp. 92-104
Author(s):  
Rustam Madaliev
Keyword(s):  
Administrative Law ◽  
Kyrgyz Republic ◽  
Public Authorities ◽  
Legal Norms ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Administrative Legislation ◽  
Administrative Procedures ◽  
Law And Legislation ◽  
Administrative Justice

The article provides an overview and stages of the development of law and legislation on administrative procedures and administrative justice in the Kyrgyz Republic. The article discusses the adoption, implementation, content and the application of the new Law on Administrative Procedure and the Administrative Procedure Code of the Kyrgyz Republic. At the beginning, the socio-political background and the rationale for the ongoing judicial reforms and the efforts of the state to strengthen the rule of law in the Kyrgyz Republic are described. A significant part of article considers steps for developing a law on administrative procedures of the Kyrgyz Republic and the problems associated with its development. Then, the content and issues of implementation and the problems of the practical application of the new law on administrative procedures of the Kyrgyz Republic are disclosed. A separate part is devoted to the development, content, implementation and practice of the application of the new Administrative Procedure Code of the Kyrgyz Republic. The article also outlines the problems and shortcomings in the practice of applying legal norms on administrative procedures and administrative justice in the Kyrgyz Republic. In general, the article summarizes that a new system of administrative law has been formed in Kyrgyzstan to replace “Soviet” administrative law, but there are still problems in understanding and applying the new administrative legislation: not all the regulatory framework and practice of administrative agencies are brought into line with the new legislation; there are facts of not understanding, ignoring and not applying the new legislation by public authorities; not all curricula of higher legal education are brought in line with a new understanding of administrative law. It is necessary to continue the implementation measures to put into practice the new administrative legislation through organizational measures to educate and train law applicators, as well as the development of judicial practice in administrative cases.

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