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.

Part IV The Role of Arbitrators in the Development of Shipping Law, 16 The Role of Arbitrators and the Possibility of a Genuine Arbitral Case Law: The Continental Perspective

2016 ◽  
Author(s):  
Cachard Olivier
Keyword(s):  
Case Law ◽  
Public Interests ◽  
The Third ◽  
Private And Public ◽  
Maritime Disputes ◽  
Standard Terms ◽  
Legal Grounds

This chapter uses maritime arbitration in Paris as a case study to discuss the possibility of a genuine arbitral case law. This possibility derives from the arbitrator being uniquely placed, in view of his or her legal and methodological freedom, to conduct ‘the free objective search for a rule’. The first section underlines that an arbitrator or an arbitral panel is in the best position to carry out this free objective search for a rule. The second section investigates whether an arbitrator is just adjudicating a peculiar dispute or if, in doing so, his findings may reach further authority. It then discusses the legal grounds given to the award. The third section focuses further on the characteristics of maritime disputes and tries to sort out how a balance between private and public interests is met. It also examines how the market arbitrators consider standard terms.

scholarly journals Legal Regulation of Public Governance in Finland – an Illusion of Predictable Public Administration?

2015 ◽  
Vol 38 (2) ◽  
pp. 52-59
Author(s):  
Niina Mäntylä ◽  
Laura Perttola ◽  
Kristian Siikavirta
Keyword(s):  
Public Administration ◽  
Legal Regulation ◽  
Administrative Law ◽  
Soft Law ◽  
Eu Law ◽  
Public Governance ◽  
The Public ◽  
The Individual ◽  
Changing Role

Legal coherence and predictable decision-making are the cornerstones of Finnish administrative law. The aim of this research is to analyze the factors that make administrative decisions unpredictable in Finland today. Why is the challenge so significant for the authorities? The factor analysis revealed six main features affecting predictability in the legal regulation of Finnish public governance: the increasing use of soft law, the devolution of government, deregulation, the changing role of the individual, the blurring of the division between the public and the private sector and the influence of international and EU-law.

scholarly journals PUBLIC INTEREST IN PUBLIC PROCUREMENT

2020 ◽  
Vol 24 (4) ◽  
pp. 1039-1062
Author(s):  
Vitaly V. Kikavets
Keyword(s):  
Public Interest ◽  
Public Procurement ◽  
Legal Regulation ◽  
Political Regime ◽  
Public Interests ◽  
Public And Private ◽  
The Public ◽  
Private Interests ◽  
Private And Public ◽  
The Government

The basis of legal relations in public procurement are private and public interests. The purpose of the study is a substantive assessment of the authors hypothesis that the purpose of legal regulation and financial support of public procurement is to satisfy the public interest expressed in the form of a public need for goods, works, and services. The methodological basis of the study rests on historical and systematic approach, analysis, synthesis and comparative-legal methods. The results of the analysis of normative legal acts regulating public procurement, doctrinal literature and practice showed that public interest denounced in the form of public need is realized through public procurement. Public and private interests can be realized exclusively jointly since these needs cannot objectively be met individually. In general, ensuring public as well as private interests boils down to defining and legally securing the rights and obligations of the customer and their officials, which safeguards them in the process of meeting public needs through public procurement. The study revealed the dependence of the essence of public interest on the political regime, which determines the ratio of public and private interests. Public interest in public procurement is suggested to understand as the value-significant selective position of an official or another person authorized by the government, which is expressed in the form of the public need for the necessary benefit; gaining such benefit involves both legal regulation and financial security. The purpose of legal regulation of public procurement is to satisfy public interest. These concepts should be legally enshrined in Law No. 44-FZ.

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>

The Judicial Elaboration of Standards for Public Administrations in France

2021 ◽  
pp. 113-131
Author(s):  
Jérémy Mercier
Keyword(s):  
Public Administration ◽  
Public Services ◽  
Institutional Context ◽  
Case Law ◽  
Administrative Law ◽  
Public Authorities ◽  
Public Power ◽  
The Public ◽  
Creative Role

This chapter underlines how administrative law has taken a much greater significance in France since the period 1890–1910. This period is not only symbolic of a full development of administrative law around the notion of public power (puissance publique) or public service (service public) but also of the ramifications given to the very notion of State and public administration. The chapter deals with different theories (Hauriou, Duguit, etc.) related to a redefinition of the State and public services. It discusses four specific aspects: the institutional context, the case law of the Conseil d’État, the innovative orientations concerning the action of the public authorities, and the creative role of this case law.

scholarly journals CONSUMER CREDITING: CORELATION OF PRIVATE AND PUBLIC BASIS OF LEGAL REGULATION

2017 ◽  
Vol 21 (5) ◽  
pp. 170-177
Author(s):  
V. V. Bogdan ◽  
A. A. Kalinovskaya
Keyword(s):  
Legal Status ◽  
Legal Regulation ◽  
Public Law ◽  
Federal Law ◽  
Public Interests ◽  
Private And Public ◽  
The Stability ◽  
The Individual ◽  
Method Of Abstraction

In this article, the authors consider the modern legislation system on consumer crediting. The authors dwell on the problems of the correlation of certain legal acts in this sphere and focus on the Federal Law "On Consumer Credit (Loan)". Also they note the role of departmental and local acts regulating consumer crediting. The authors state the idea that the special mechanism for the implementation of the rights of borrowers, laid by the legislator, contains additional duties and restrictions for banks and other credit organizations that sell credit products to citizens, as much as is necessary to protect public interests. Such regulation of the legal status of borrowers correlates with the general ideas about the convergence of private and public law. Establishing a special legal status of the consumer citizen, the legislator reflects the interests of citizens, the interests of their counterparties, as well as public interests related to the need to ensure balanced interests of the individual, society and the state. In the process of research, the authors used analytical, formal-legal methods, the method of abstraction, which allowed to formulate conclusions on the conducted research. The authors come to the conclusion that the legislation on consumer crediting is designed not only to protect the rights of a particular borrower, but also to ensure the stability of banking relations, avoiding abuses both on the part of borrowers and banks. At the same time, the legislation on consumer creditng is oriented not only to perform protective functions, but also regulatory.

Vindicating environmental public interests in China: A balanced approach to institutional interaction in public interest litigation system

2019 ◽  
Vol 21 (4) ◽  
pp. 269-291
Author(s):  
Yun Ma
Keyword(s):  
Public Interest ◽  
Environmental Law ◽  
The Other ◽  
Public Interests ◽  
Public Interest Litigation ◽  
The Public ◽  
Balanced Approach ◽  
Administrative Procedures ◽  
The One

Along with the adoption of environmental public interest litigation (EPIL) in China, the configuration among civil society, administrative, procuratorial and judicial powers is reshaped and transformed. With various actors brought to the public interest ground, the conventional role of governments as a public interest defender through law enforcement activities is distorted. This, on the one hand, spurs and supplements insufficient government enforcement of environmental law, and on the other hand poses the danger of supplanting government enforcement, crowding out statutory responsibilities for governments and eroding their discretion in selecting regulatory tools and administrative procedures. To reach a balance making no power excessively intruding the other and bring PIL’s potential into full play, realignment of their respective roles and functions in the enforcement system is imperative. Government enforcement should be strengthened and given priority in vindicating environmental public interests. Pre-conditions for filing different types of EPIL claims should be established and specified. To develop an internally coordinated EPIL system, the future reforms should be legally underpinned with the order of standing coordinated, concurrent claims screened, connection arrangements established and the usage of incidental litigation promoted.

scholarly journals O domínio público e a função social do direito autoral | Public domain and the social function of copyright law

2011 ◽  
Vol 7 (2) ◽  
Author(s):  
Carlos Affonso Pereira de Souza
Keyword(s):  
Social Function ◽  
Public Domain ◽  
Copyright Law ◽  
Public Interests ◽  
The Public ◽  
The Social ◽  
The Us ◽  
Private And Public ◽  
Access To Knowledge

Resumo O artigo debate as funções desempenhadas pelo direito autoral, identificando o estímulo à criação como função promocional e o acesso ao conhecimento e à informação como sua função social. O texto desenvolve o papel do domínio público como instituto fundamental para garantir o equilíbrio entre interesses privados e públicos na proteção autoral a partir do ordenamento constitucional e reflete sobre a experiência norte-americana envolvendo a prorrogação do prazo de proteção das obras autorais. Palavras-chave Direitos Autorais; Domínio Público; Função SocialAbstract The article debates the functions of copyright protection, identifying the incentive to intellectual creation and the access to knowledge and information as its two major functions. The text explores the role of the public domain as a fundamental institute for the better understanding of the balance between private and public interests in copyright in the light of Brazilian Constitutional Law and the US experience on the extension of the protection term. Keywords Copyright; Public Domain; Social Function

scholarly journals Discretionary powers of the public administration in providing the NPO state registration services

2021 ◽  
Vol 118 ◽  
pp. 03015
Author(s):  
Viktor Eduardovich Gatsolati ◽  
Alexander Borisovich Zelentsov ◽  
Bulat Umerzhanovich Seitkhozhin
Keyword(s):  
Public Administration ◽  
Public Services ◽  
Negative Impact ◽  
Legal Regulation ◽  
Non Profit ◽  
The Public ◽  
Administrative Procedures ◽  
State Registration ◽  
The Impact ◽  
Discretionary Powers

The purpose of the research is to determine the impact of the current administrative and legal regulation of the implementation of administrative procedures for the provision of the non-profit organisation state registration services on the scope of discretionary powers of the public administration in the provision of this service. The methodological basis of the research is created by modern philosophical, general-scientific and special-scientific methods of cognition including dialectical, logical, formal-legal, systemic and statistical methods, as well as analysis, description, synthesis and interpretation. The research results were the conclusions from the analysis of the administrative and legal regulation of administrative procedures for the provision of the non-profit organisation state registration services. Thus, in particular, the discrepancy between a separate provision of the administrative regulation on the provision of the non-profit association state registration services with the current federal legislation was identified and a proposal to amend it was formulated. In addition, it was concluded that the detailed regulation at the sub-legal level of the procedure for the implementation of administrative procedures for the provision of public services has a negative impact on the scope of discretionary powers of public administration bodies. The research novelty lies in the adopted methodological approach to the analysis of the overseas experience in legal regulation of the implementation of administrative procedures by public administration bodies and the conduct of a comparative legal study of regulation of the implementation of administrative procedures for the provision of public services in Russia and in the European Union member states.

scholarly journals The public interests - local administrative decision - making process relationship in the countries of the European Union: comparative study

Moldoscopie ◽  
2021 ◽  
Author(s):  
Victor Saca ◽  
◽  
Tatiana Bogos ◽  
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Decision Making Process ◽  
The European Union ◽  
Public Interests ◽  
Good Practices ◽  
The Public ◽  
The Republic ◽  
Community Space

The article proposed for publication is analysing the relation between the public interest and the local administrative decisional process in the countries from the European neighbourhood area. The author emphasises the importance of the good practices in the Republic of Moldova. The local public administration represents the main attributes of a democatice society. This is the level that actually forms the good practices of democracy and these determine the role of the local authorities, which have a considerable importance in the administrative system. The tendency of the states to modernization creates the premises for the elaboration of the local public administration standards, and creates the common principles of organisation and functioning of the public administration, defined by law and applied into practice. Identifying a suitable and effective model for organising and improving this collaboration relation is the first goal. In this context, the article is analysing the structure of local public administration, the emphasis being on the relation of the public interests-decision-making process in different states of the community space. The author finds that this relation differs from one state to another, depending on the specific features in each state. The principle of decentralization and local autonomy is what underlies the strengthening of local public administrations in different countries.

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