Vergaberecht als Digitalisierungsfolgenrecht

2019 ◽  
Vol 52 (1) ◽  
pp. 65-98
Author(s):  
Christoph Krönke

Abstract The State bears a certain responsibility for the consequences of digitalizing public administration and services. The principles of democracy and the rule of law demand that the state retains effective control over the digitalized performance of ist tasks. This “digital responsibility” of the State also has an impact on the application of public procurement rules governing the procurement of information technologies and services (IT). On the one hand, ensuring digital responsibility will often mean that the contracting authority needs a broad margin of appreciation when interpreting the rules of procurementlaw – for examplewith regard to the legal requirements for choosing special procurement procedures enabling a particulary flexible IT procurement. On the other hand, the contracting authority’s digital responsibility can also be turned against it: When involving, for instance, private parties in the preparation of substantial decisions concerning the procurement of IT, the authority must keep itself well informed and may not simply take over prepared decisions. This way, the digital responsibility of the State can be (and should be) used as a distinct legal argument under public procurement law.

1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.


2019 ◽  
Author(s):  
Hsi-Ping Chen

The German Law on public procurement remedies, implementing the EU Remedies Directives into national law, has to engage in a balancing act between effective legal protection of bidders and the necessary acceleration of the award procedure. The book develops solutions for conflicts between the abovementioned opposing interests, which are consistent with the pluralistic paradigm of the European legal area, and the standards of assessment of the EU primary substantive law on public procurement. The Europeanisation of the German Law on public procurement remedies is analysed in detail. The work deals with the establishment and improvement of effective legal protection of bidders on the one hand and, on the other hand, shows that the acceleration of the award procedure within the framework of the procedural system is bounded by the rule of law. The book carves out strengths and deficits of the German Law on public procurement remedies.


2019 ◽  
Vol 16 (1 (3)) ◽  
pp. 19-36
Author(s):  
Beata Kozicka ◽  
Ewa Pierzchała

Opus iustitiae PAX – the properly shaped dimension of justice is a guarantee of peaceful – not based on a conflict and violence – relations between citizens and the state. These words fully reflect the leading thought of this study. It is the concern for a good law and a state governed by the rule of law, which lies at the foundation of actions taken within the scope of legal means by the Prosecutor’s Office that – as the “custodian of law” – is entitled to in the sphere of control over administration. Administrative courts execute justice as a separate part of judicial power. Justice and law are conditions for an effective state, good governance and social peace, which have accompanied us for centuries. Administrative courts uphold the principle of equality before the law, which is regulated by Art. 21, par. 1 of the Constitution of the Republic of Poland. Since it is administrative courts which – by performing tasks of control over the activity of public administration – become the guarantee of realization of the above-mentioned principle, their position and range of cognition in the situation of launching administrative-court proceedings by the Prosecutor were presented in the work.


PRANATA HUKUM ◽  
2020 ◽  
Vol 15 (1) ◽  
pp. 43-52
Author(s):  
Tubagus Muhammad Nasarudin

The rule of law in the perspective of Pancasila which can be termed the law state of Indonesia or the rule of law state of Pancasila besides having the same elements as the rule of law in the rechtstaat and rule of law, also has specific elements that make the Indonesian law state different from the concept of the state generally known law. The difference locates in the values contained in the Preamble to the 1945 Constitution which contain Pancasila with the principles of the Belief in the one and only God and the absence of separation between the state and religion, the principle of deliberation in the implementation of state government power, the principle of social justice, kinship and mutual cooperation, as well as laws that serve the integrity of the unitary state of Indonesia. The Pancasila Law State concept is characterized by: (1) Close relations between religion and state (2) Stand on the one and only God (3) Freedom of religion in a positive sense (4) Atheism is not justified and communism is forbidden and (5) The principle of kinship and harmony. As for the main elements of the Republic of Indonesia Law State are: (1) Pancasila (2) MPR (3) Constitutional system (4) equality and (5) Free trial.


2021 ◽  
pp. 113-119
Author(s):  
Nataliia HRABAR ◽  
Nelli LEONENKO

The article is devoted to the study of public administration in the field of tourism in terms of adaptation to the standards of the European Union. Emphasis placed on the fact that the state of domestic policy in the field of tourism does not meet modern world standards of industry management at the state level. In connection with the transition from a planned to a market model of state development in the last two decades, there have been clear problems that prevent the full use of the tourist and recreational potential of Ukraine. On the one hand, the underdevelopment of domestic tourism correlates with the general problems of political, social and economic nature inherent in developing countries at a certain stage of their development. On the other hand — the lack of the necessary methodological framework and lack of methodological developments for state regulation of tourism correlates with the impossibility of practical application of tourism laws, tourism development programs and the formation of tourism regulation structures at the national level, which directly and indirectly affect the adaptation of Ukrainian legislation and state-management activities in accordance with the standards of the European Union. Based on the results of doctrinal and comprehensive research, it concluded that in the context of promoting the gradual convergence of domestic and European public administration environment, strengthening economic and trade relations that will lead to Ukraine’s gradual integration into the EU internal market, expanding cooperation based on the rule of law and respect for the rule of law. Human rights and fundamental freedoms, the sphere of tourism occupies one of the key aspects not only at the national level but also at the international level. At the same time, in the context of adaptation of domestic legislation and public administration to EU standards, it is advisable to develop a methodology and action plan aimed at implementing the holistic guidelines and principles enshrined at the European level.


2020 ◽  
Vol 2 (2) ◽  
pp. 117-146
Author(s):  
Vicenzo Baldini

The state of emergency that is being experienced has generated a sort of dynamic disorder of complex systematic re-elaboration within the framework of the legal system of the state. We appreciate a permanent tension between the rule of law and the discipline of emergency which manages to find a problematic landing point in the prefiguration of the existence of an emergency legal system, based on a different Grundnorm and parallel to the one that sustains the whole establishment of the legal system of the sources of the state legal order


2020 ◽  
Vol 2 (1) ◽  
pp. 1-15
Author(s):  
Ivan Geshev ◽  
Nikolay Marin

The article aims to reveal the nature and specifics of the alternative method of modern banking ‘Hawala’, which makes it on the one hand, extremely convenient for use by organized criminal groups, and on the other, difficult to be investigated and proven. The authors trace Hawala’s historical roots, referring to the ancient customary law, and point out the strict rules on which it operates. It highlights that, with the development of information technologies, the Hawala systems’ principles have found a new application, from which organized criminal groups benefit. The article clarifies how the Bulgarian legislation incriminates money laundering and the possible use of the ‘Hawala’ system for this and other criminal activities. Attention is paid to the Bulgarian experience in the investigation of a network of persons involved in the use of the Hawala method for concealing, particularly serious crimes. The conclusion is made that the Hawala phenomenon poses a serious threat to the rule of law in any country, and the Bulgarian legislation needs to be adapted in order to provide effective mechanisms to counter such non-conventional type of crime.


Author(s):  
J. M. Bernstein

This chapter analyzes the concept of rule of law. It examines Gustav Radbruch's theory since his argument against the extremes of Nazi law was a pivotal moment in the re-emergence of antipositivist conceptions of legality. It then elaborates Lon L. Fuller's account of eight constitutive, formal features of law that, he contends, begin to get at the “inner morality of law.” Next, the chapter offers a version of Caesar Beccaria's argument that the formal and procedural elements constituting the rule of law should be conceived as, on the one hand, generating the necessary conditions for relations between the citizen and the state and, on the other hand, among citizens themselves that will be sufficient to free individuals from coercive, force-based relations both among themselves and between themselves and the state.


2007 ◽  
Vol 25 (2) ◽  
pp. 247 ◽  
Author(s):  
Lorne Sossin ◽  
Zimra Yetnikoff

Videoconferencing has generated ambivalence in the legal community.Some have heralded its promise of unprecedented access to justice,especially for geographically remote communities. Others, however, havequestioned whether videoconferencing undermines fairness. The authorsexplore the implications of videoconferencing through the case studyof the Ontario Landlord and Tenant Tribunal, which is one of thebusiest adjudicative bodies in Canada. This analysis highlights concernsboth with videoconferencing in principle and in practice. While suchconcerns traditionally have been the province of public administration,the authors argue that a tribunal’s allocation of resources and thesuffi ciency of its budget are also core concerns of administrative law.Administrative law reaches beyond conventional doctrines of proceduralfairness on the one hand and substantive rationality on the other. Howthe legislature structures and funds decision-making bodies is not just amatter of political preference but also of legal suffi ciency. The commonlaw, the Charter of Rights, and unwritten constitutional principles suchas the rule of law and access to justice all provide potential constraintsboth on governments and tribunals as to the organization and conductof adjudicative hearings, especially in settings like the Landlord andTenant Tribunal, where the rights of vulnerable people are at stake.While a challenge to the videoconferencing practices of the Landlordand Tenant Tribunal has yet to be brought, the authors conclude thateventually the intersection of tribunal resources with the fairness andreasonableness of that tribunal’s decision-making will reach the courts.How the courts resolve these challenges may represent the next frontierof administrative law.La vidéoconférence a suscité de l’ambivalence au sein de la communautéjuridique. Certains ont proclamé sa promesse d’un accès sansprécédent à la justice, surtout pour les communautés géographiquementéloignées. D’autres, cependant, ont soulevé la question à savoir si lavidéoconférence mine l’équité. Les auteurs explorent les conséquencesde l’utilisation de la vidéoconférence en faisant une étude de cas duTribunal du logement de l’Ontario, un des organismes juridictionnelsles plus occupés au Canada. Cette analyse met en lumière despréoccupations en rapport avec la vidéoconférence en principe et enpratique. Quoique de telles préoccupations ont traditionnellement été du ressort de l’administration publique, les auteurs soutiennent quel’allocation des ressources par un tribunal et la suffi sance de son budgetsont également des préoccupations centrales du droit administratif.Le droit administratif va au delà des doctrines conventionnellesd’équité procédurale d’une part et de la rationalité substantive d’autrepart. La façon dont le législateur organise et fi nance les organismesdécideurs n’est pas simplement question de préférence politique maisaussi de suffi sance légale. Le common law, la Charte des droits etles principes constitutionnels non écrits tels que l’autorité de la loiet l’accès à la justice imposent tous des contraintes potentielles auxgouvernements et aux tribunaux quant à l’organisation d’audiencesadjudicatives et la façon de les mener, surtout dans un cadre tel que leTribunal du logement de l’Ontario, où sont en jeu les droits de gensvulnérables. Quoique les pratiques de vidéoconférence du Tribunaldu logement de l’Ontario n’aient pas encore été contestées, les auteursconcluent qu’éventuellement la conjoncture des ressources du tribunalet de l’équité et l’aspect raisonnable du processus de décision de cetribunal va parvenir à la cour. La façon dont les cours règleront cescontestations pourrait devenir le prochain domaine d’exploration dudroit administratif.*


Author(s):  
Florian Coulmas

‘Citizenship, legal status, and proof of identity: identity as a legal concept’ explains that individual identity is the cornerstone of the rule of law and the relation of state and citizen. In law, it has to do with that which makes a person (or thing) distinct from any other person (or thing). It means that a subject is the same as it claims, or is charged, to be. The digital turn has added a new aspect to our legal identity, and protecting us against identity theft is a new obligation of the state, while we have no choice but to learn to protect ourselves against profit-seeking corporations, on the one hand, and a surveillance state, on the other.


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