Der Verwaltungsvertrag: Bestandsaufnahme und Reformbedarf

2018 ◽  
Vol 51 (4) ◽  
pp. 467-494
Author(s):  
Anna Leisner-Egensperger
Keyword(s):  
Environmental Law ◽  
Legal Regulation ◽  
Contract Law ◽  
Political Agenda ◽  
Administrative Contract ◽  
The Public ◽  
Progressive Development ◽  
Administrative Procedure ◽  
Legal Provisions ◽  
Procedure Code

Abstract The regime concerning administrative contract law under sec. 54 et seq. of the Administrative Procedure Code (VwVfG) appears to be in need of reform. Amendment of the code remains on the political agenda, though other projects such as Europeanisation, democratisation and digitisation currently seem to enjoy precedence. In recent times, progressive development of administrative contract law has shifted to specific legal areas, in particular to construction and planning law, environmental law, elements of public commercial law, tax law and social legislation. How administrative law may be distinguished as a specific discipline is a question of principle, effectively representing a new chapter in the dispute concerning methods that occurred in the 19th century, a question, moreover, that extends far beyond the law concerning administrative contracts. In order to reform the current legal provisions covering administrative contracts in the Administrative Procedure Code, a three-part analysis is proposed: First of all, the specific interests of both the public authority and the citizen must be taken into consideration. Subsequently, the current legal regulation of administrative contracts must be analysed in terms of both its fundamental ideas, as well as its central provisions. Finally, it is necessary to determine whether the teleology of the public law contract can be applied to this area, or whether specific, factual connections or constellations of interests must be taken into account, entailing that the use of a model based on general standards seems inappropriate. The result of the foregoing is that a critical analysis of the evolution of administrative contract law is proposed.

scholarly journals THE ADMINISTRATIVE CONTRACT IN SERBIAN LAW

2020 ◽  
pp. 87-99
Author(s):  
Ivana Marković ◽  
Keyword(s):  
Legal Theory ◽  
Legal Regulation ◽  
Negative Effects ◽  
Administrative Contract ◽  
The Public ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Legal Nature ◽  
Private Entity ◽  
Civil Contract

The paper deals with the new legal institute of administrative contract in Serbian Administrative Law. It was introduced in 2016 in the Law on General Administrative Procedure (LGAP), establishing rules on its definition, modification and termination, objection due to non-performance and subsidiary application of law on obligations. The prevailing opinions from the Serbian legal theory are shown through the analysis of the relevant articles of the LGAP with regard to the administrative contract – its definition, modification and termination of administrative. It is to be underlined that the problematic issues concern the differing legal positions of the public body and the private entity as contracting parties, as well as the consequence of this – a disputed legal nature of the administrative contract. It is concluded that the administrative contract in Serbian Law has a particular legal regulation; that it cannot be equated to a pure administrative act, nor a civil contract. Its normative regime is characterized by an ambivalent legal nature, where two legally unequal wills come to an agreement on the establishment of a mutual commitment (obligation), but with effects for the public as well. Here, the public side of the contract has a stronger standing and can to a greater extent influence the content of the contract. Baring in mind the positive (flexibility, efficiency, direct fulfillment of contractual aims with less governmental compulsion) and the negative effects (possible corruption, “selling out” of sovereign rights, endangerment of the uniformity of the legal system) of this instrument, it can be anticipated that the fragmented character of the regulations of the LGAP on the administrative contract will induce judicial practice and legal theory to give answers that the legislator omitted to provide.

scholarly journals LEGAL REGULATION OF ADMINISTRATIVE CONTRACTS IN BOSNIA AND HERZEGOVINA

2016 ◽  
Vol 6 (2) ◽  
pp. 27-35
Author(s):  
Edina Šehrić ◽  
Keyword(s):  
Bosnia And Herzegovina ◽  
Legal Regulation ◽  
Administrative Contract ◽  
The Public ◽  
Administrative Procedure ◽  
Legal Remedy ◽  
The Law ◽  
Contractual Obligations ◽  
Judicial Protection ◽  
First Time

The institute of administrative contract was mentioned for the first time in the legislation of our country in the Preliminary Draft to the Law on Amandments of the Law on Administrative Procedure of Bosnia and Herzegovina from 2012. Although insufficiently, the first step is made towards fullfillment of the reform requirements in the area of admisitrative procedure on the way to the European integration and in accordance with the changed role of administration and the need for improvement of cooperation between the administration and citizens, or legal entities. In Bosnia and Herzegovina there is still no general legal regulation of administrative contracts, but administrative contracts are subjects to specific laws and as such already exist in the legal system. After some introductory remarks, the paper deals with the concept and characteristics of administrative contracts, and also presents legal regulation of administrative contracts highlighting their specificities and differences in relation to private law contracts. The importance of general legal norm governing administrative contracts is especially emphasized, as well as their importance for reform processes in our country. Accordingly, the importance of introducing a complaint as a legal remedy that a client can use if the public authority fails to meet contractual obligations is pointed out, but also the possibility of judicial protection in case of legal dispute.

scholarly journals ADMINISTRATIVE AND LEGAL INSTRUMENTS FOR ENSURING THE IMPLEMENTATION OF STATE POLICY IN THE FIELD OF EUROPEAN INTEGRATION OF UKRAINE

2019 ◽  
pp. 78-83
Author(s):  
E. O. Kazmiryshyn
Keyword(s):  
Civil Society ◽  
European Integration ◽  
Public Administration ◽  
State Policy ◽  
Scientific Literature ◽  
The Public ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Research Problems ◽  
Stated Purpose

The article is devoted to determining the list of administrative and legal instruments for ensuring the implementation of state policy in the field of European integration of Ukraine. In order to achieve the stated purpose, it seems necessary to solve the following research problems: 1) to analyze the domestic scientific literature devoted to understanding the category of “administrative and legal instruments” or its analogues; 2) identify the types of administrative and legal instruments used by public administration entities in implementing state policy in the field of European integration of Ukraine; 3) to specify the prospects of expanding the list of administrative and legal instruments that public administration entities may use in implementing state policy in the field of European integration of Ukraine. As a result of the study the following conclusions are reached: they use the appropriate administrative and legal instruments to perform the tasks assigned to the subjects of the public administration of Ukraine involved in the implementation of state policy in the sphere of European integration of Ukraine. The conducted research allows to state that the specifics of this direction of state policy of Ukraine determines their insignificant list. These include: by-laws, planning acts and information acts; the necessity of introducing a clear procedure for involving civil society institutions and interested individuals in developing, discussing and monitoring the implementation of state policy plans in the field of European integration of Ukraine has been proved. The procedure for such involvement should be defined at the level of the Administrative Procedure Code of Ukraine; the necessity of expanding the list of administrative and legal instruments used by the public administration of Ukraine in implementing state policy in the field of European integration of Ukraine is substantiated. Their extension is possible, for example, through the involvement of administrative contracts, in particular: subordination and coordination administrative agreements. They could become the legal basis for the interaction of public administration entities of Ukraine, as well as subjects of national public administration and local self-government bodies or civil society institutions in particular areas of implementation of state policy in the field of European integration of Ukraine.

scholarly journals Beyond Public Particpation: The disjuncture between South Africa's Environmental Impact Assessment (EIA) Law and Sustainable Development

2017 ◽  
Vol 11 (3) ◽  
pp. 105
Author(s):  
T Murombo
Keyword(s):  
Sustainable Development ◽  
Environmental Impact ◽  
Public Participation ◽  
Impact Assessment ◽  
Environmental Impacts ◽  
Environmental Impact Assessment ◽  
Environmental Law ◽  
Development Planning ◽  
The Public ◽  
Legal Provisions

One of the key strategies for achieving sustainable development is the use of the process of evaluating the potential environmental impacts of development activities. The procedure of environmental impact assessment (EIA) implements the principle of integration which lies at the core of the concept of sustainable development by providing a process through which potential social, economic and environmental impacts of activities are scrutinised and planned for. Sustainable development may not be achieved without sustained and legally mandated efforts to ensure that development planning is participatory. The processes of public participation play a crucial role in ensuring the integration of the socio-economic impacts of a project into the environmental decision-making processes. Public participation is not the only process, nor does the process always ensure the achievement of sustainable development. Nevertheless, decisions that engage the public have the propensity to lead to sustainable development. The public participation provisions in South Africa’s EIA regulations promulgated under the National Environmental Management Act 107 of 1998 show a disjuncture between the idea of public participation and the notion of sustainable development. The provisions do not create a framework for informed participation and leave a wide discretion to environmental assessment practitioners (EAPs) regarding the form which participation should assume. In order for environmental law, specifically EIA laws, to be effective as tools to promote sustainable development the laws must, among other things, provide for effective public participation. The judiciary must also aid in the process by giving content to the legal provisions on public participation in the EIA process.

scholarly journals Javnopravno uređenje zvanične toponimije - od državnog nivoa do nivoa lokalne samouprave / The Public Law Regulation of the Official Toponymy From State’s To Local Level

2016 ◽  
Vol 6 (6) ◽  
pp. 86
Author(s):  
Vladimir Đurić ◽  
Nevenko Vranješ
Keyword(s):  
Local Level ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Public Law ◽  
Place Names ◽  
The Public ◽  
Administrative Procedure ◽  
The Republic ◽  
Domestic Law ◽  
Law Regulation

It is the purpose of this paper to highlight the relation between official toponymy in comparative and domestic law. Toponymy is legally regulated. After the analyzing of the position of official toponymy in the comparative law, selected legal aspects of its regulation in the Bosnia and Herzegovina and the Republic of Srpska legal systems are presented: the constitutional regulation of the names of country, constitutive unites and capitals, the constitutional and law regulation of the official use of language and script, the legal regulation of the local-self-government unit names and official place names, as well as the administrative procedure of the place names change.

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.

scholarly journals The European Union competence in the public health field

2021 ◽  
pp. 87-92
Author(s):  
V. O. Tyumentsev
Keyword(s):  
Public Health ◽  
European Union ◽  
Legal Regulation ◽  
Health Protection ◽  
The European Union ◽  
Member States ◽  
The Public ◽  
Legal Provisions ◽  
Health Field ◽  
The Eu

The subject of this article is the competence of the European Union (EU) in the public health field within the territory of the Member States of this organization. The purpose of this article is to analyze how the EU's competence is distributed in relation to the competence of the member states using the primary treaty of the organization as a source. The article examines the powers of the EU organization within both the main and additional competence and analyzes how the EU interacts with the member states in the framework of health protection in accordance with the legal provisions of the primary source. The main and additional competence of the EU is considered separately, and there is also an analysis of the features and possible prospects of the legal regulation of health protection within the relevant branch of the law of the European Union.

scholarly journals GLOBALISATION OF THE WORLD TRADE FROM THE PERSPECTIVE OF THE PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS UNIDROIT

2016 ◽  
Vol 2 (4) ◽  
pp. 0-0
Author(s):  
Мария Мещанова ◽  
Mariya Meshchanova
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Legal Regulation ◽  
Contract Law ◽  
Current Version ◽  
National Legislation ◽  
Progressive Development ◽  
Central Argument ◽  
Legal Globalization

This paper is concerned with the role of the UNIDROIT Principles in the processes of legal globalization. The central argument is that this non-State codification does not have a legal binding nature, but this document which covers the rules of conduct and dispute settlement, no doubt, contributed to the acceleration of globalization of world trade. It analyses the revision of the UNIDROIT Principles since 1994 to the current version of 2010 and from the stand point of strengthening of the general approaches in legal regulation and extension of the scope of their application. The UNIDROIT Principles may have impact on the reform of the national legislation of various countries, thus, facilitating the process of harmonization of Contract Law. At the same time it is noted that many of the provisions of the national legislation, and, in particular, the German Civil Code, may serve as the basis for progressive development of the mentioned non-state codification. This set of unified rules may be used as an instrument for the interpretation of the terms enshrined in international commercial contracts.

scholarly journals Legal Regulation of the Preservation of the Culture of Ukrainian Peasantry: Current Situation and Prospects for Improvement

2020 ◽  
pp. 253-259
Author(s):  
Tetiana Kovalenko ◽  
Elina Pozniak
Keyword(s):  
National Culture ◽  
Environmental Law ◽  
Leisure Activities ◽  
Legal Regulation ◽  
Legal Responsibility ◽  
Legal Norms ◽  
Legal Provisions ◽  
The Social ◽  
State And Local ◽  
The Village

This article investigates the current state of legal regulation of preserving the culture of Ukrainian peasantry as a carrier of Ukrainian identity, culture and spirituality of the nation. The necessity to revive and preserve the peasant as a landlord, bearer of morality and national culture is reflected in the scientific approaches of legal scholars in the field of agrarian, land and environmental law of Ukraine. In the process of analysis of a number of sources of agrarian, land, environmental law, normative legal acts of a programmatic nature, the existence of significant legal defects in the specified field was revealed (declarative nature of legal provisions, legal gaps, lack of complexity of legal regulation, inefficiency of legal norms). As a result, degradation of the spiritual, environmental, legal culture of the peasants occurs. The authors found that the effectiveness of a number of legal acts, aimed at the legal regulation of the culture of Ukrainian peasantry, the social development of the village and the revival of social cultural and material infrastructure, is low. The measures identified in them to overcome the crisis in the social sphere of the village have practically no proper mechanisms of implementation. In view of this, the authors substantiate ways to improve the legal regulation for the preservation of the culture of Ukrainian peasantry. The key to preserving the peasantry as a carrier of the national culture of Ukrainian people, according to the authors, is a integrated solution to the peasant's social problems. This direction of state policy should be implemented through organizational, legal and socio-economic measures aimed at ensuring employment and reducing unemployment, expanding the network of cultural institutions in the countryside, improving the level of education of rural youth, the development of environmental awareness, education, legal and advisory activities. Increasing the standard of living and life of Ukrainian peasantry, the authors associate with the need for its financial and economic support with the use of funds from the State and local budgets for the implementation of cultural and educational activities in the countryside, leisure activities with the promotion of agricultural producers. An important guarantee of preserving the culture of Ukrainian peasantry is to increase the legal responsibility of officials of state authorities and local self-government for making decisions that limit or violate peasants' rights.

scholarly journals Analisis Yuridis Putusan Bebas terhadap Kasus Tindak Pidana Pembunuhan

2019 ◽  
Vol 2 (2) ◽  
pp. 399-411
Author(s):  
Ramot Lumbantoruan
Keyword(s):  
Research Method ◽  
Legal Theory ◽  
Descriptive Analysis ◽  
Criminal Procedure ◽  
Public Prosecutor ◽  
The Public ◽  
Legal Provisions ◽  
Procedure Code ◽  
Judicial Role

The purpose of this research is to describe the legal arrangements regarding the Free Verdict according to positive legal provisions, the Judicial role of the Judge in deciding a case and Juridical Analysis of a conviction for a murder crime (Study of Judgment Number 423 / Pid / 2008 PN. South Jakarta. This research method is normative juridical research.The nature of this research is descriptive analysis, which is a method used to describe a condition or condition that is happening or ongoing in order to provide as much data as possible about the object of research so as to explore things that are ideal, then analyzed based on legal theory or applicable laws and regulations.Results of this study, first, the legal arrangements regarding the acquittal according to positive legal provisions is to look at Article 191 Paragraph (1), paragraph (2) and paragraph (3) of the Criminal Procedure Code specifically also provides an understanding that reinforces its role law about being free from all lawsuits. Second, the role of judges legally in deciding a case in the decision of Case Decision Number 423 / Pid / 2008 / PN. South Jakarta is a judge must pay attention to the interests of various parties, both the interests of the defendant, witnesses, and the interests of the Public Prosecutor.

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