scholarly journals The Principle of Continuance in Public Service Contract

2016 ◽  
Vol 9 (8) ◽  
pp. 6
Author(s):  
Mohammad Hussein Momen ◽  
Hussein Rahmatollahi

If we consider the aim of administrative goal to procure public interest and the necessity of its continuance, the limitation of its descriptive and executive principles in private law frameworks will be serious barriers against its realization. Administrative contracts with their special legal regime based on such principles of preference, authority and support which indicates the upper hand of public contract parties are described by the same basis. Public service principles which should be considered as extracted from the judicial verdicts of French governmental council are, <em>inter alia</em>, executive and descriptive foundations of public contracts. The principle of public service continuance with its legal functions and radical role in contract execution plays a vital role in realizing the goals.

2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Isa Filipa António

<p>RESUMO:  A entidade adjudicante encontra-se vinculada a um leque de deveres, regras e princípios na fase de formação de contratos públicos. O desvio ao cumprimento às legítimas causas de não adjudicação e aos princípios norteadores da contratação pública, como o da concorrência, imparcialidade, não discriminação em razão da nacionalidade e interesse público conduz à responsabilidade pré-contratual da entidade adjudicante, destinada à tutela ressarcitória do privado (interesse contratual positivo, interesse contratual negativo e perda de chance).  No contexto pré-contratual assumem uma especial pertinência as questões sensíveis acerca da tutela da confiança do particular, alteração anormal das circunstâncias e do reequilíbrio financeiro do contrato. Por último, a questão da “urgência” na fase pré-contratual, é assegurada pelo “contencioso pré-contratual”, de carácter urgente, previsto nos artigos 100.º a 103.º-B, do Código dos Contratos Públicos.</p><p>PALAVRAS-CHAVES: Contratos Públicos; Fase de Formação do Contrato Público; Contencioso Pré-contratual Urgente; Responsabilidade pré-contratual das entidades adjudicantes.</p><p> </p><p> </p><p> </p><p>ABSTRACT: The contracting authority is bound by a range of legal duties, rules and principles at the formation of contract phase. The disrespect  of the compliance of these rules and of  the legitimate causes of non-award and the public procurement´s  guiding-principles (competition, impartiality, non-discrimination on grounds of nationality and public interest) leads to the contracting authority's pre-contractual liability for the private´s financial compensation (positive contractual interest, negative contractual interest and “loss of chance”). In the pre-contractual context, sensitive issues are of particular relevance: the protection of the private´s trust, abnormal change in circumstances and the financial rebalancing of the contract. Finally, the issue of “urgency” at the pre-contractual phase is ensured by the urgent “pre-contractual litigation” provided in articles 100.º to 103.º- B, of the Public Procurement Code.</p><p>KEYWORDS: Public Contracts; Formation of the Public Contract Phase; Urgent Pre-contractual Litigation; Pre-contractual procedure´s liability of contracting authorities.</p>


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (2) ◽  
pp. 1833
Author(s):  
Rihantoro Bayu Aji

 AbstractActually the existence of foreign investment in Indonesia is not new phenomenon, due to foreign investment exist since colonialism era.The existence of foreign investment is still continuing to Soeharto era until reformation era. Spirit of foreign investment in colonialism era, Soharto era, and reformation era are different. Foreign investment in colonialsm era just explore of nation asset and ignore of nation welfare, and this matter is different from the character of foreign investment in Soeharto era also reformation era. Eventhough the involvement of foreign investor have any benefits to the host country, but on the other hand foreign investment have business oriented only whether the investment is secure and may result of profit. Refer to The Law Number 25 Year of 2007 Concerning Investment (hereinafter called UUPM) can not be separated from various interest that become of politic background of the law, even the law tend to liberalism of investment. Liberalism in the investment sector particularly of foreign investment basically exist far from issuing of UUPM, and the spirit of liberalism also stipulate in several rules among others The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity.   Many rules as mentioned above has liberalism character and also indicator opposite wit the right to manage of the state to nation asset that relate to public interest as stipulated in the Indonesia Constitution. Actually the issuing of UUPM in case of implementation of article 33 Indonesia Constitution (UUD NRI 1945). Due to opportunity by Government to foreign investment as stipulate by article 12 UUPM and also the existence of many rules as well as The Law Number 5 Year of 1999 Concerning Prohibitation of Anti Trust and Unfair Competition, The Law Number 22 Year of 2001 Concerning Oil and Gas, The Law Number 7 Year of 2004 Concerning Water Resource, and also The Law Number 30 Year of 2009 Concerning Electricity, so the foreign investment that relate to public service is more exist in Indonesia. The existence is reflected many foreign companies. Free of foreign investment relate to public service is opposite with spirit of article 33 Indonesia Constitution. Keywords: Foreign Investment, Right of  State, Article 33 Indonesia Consitution AbstrakEksistensi penanaman modal asing (investasi asing) di Indonesia sebenarnya bukan merupakan fenomena baru di Indonesia, mengingat modal asing telah hadir di Indonesia sejak zaman kolonial dahulu.   Eksistensi penanaman modal asing terus berlanjut pada era orde baru sampai dengan era reformasi. Tentunya semangat penanaman modal asing pada saat era kolonial, era orde baru, dan era reformasi adalah berbeda. Penanaman modal asing pada saat era kolonial memiliki karakter eksploitatif atas aset bangsa dan mengabaikan kesejahteraan rakyat, hal ini tentunya berbeda dengan karakter penanaman modal asing pada era orde baru, dan era reformasi. Sekalipun kehadiran investor membawa manfaat bagi negara penerima modal, di sisi lain investor yang hendak menanamkan modalnya juga tidak lepas dari orientasi bisnis (oriented business), apakah modal yang diinvestasikan aman dan bisa menghasilkan keuntungan. Melihat eksistensi Undang–Undang Nomor 25 Tahun 2007 tentang Penanaman Modal (UUPM) tidak dapat dilepaskan dari beragam kepentingan yang mendasari untuk diterbitkannya undang–undang tersebut, bahkan terdapat kecenderungan semangat dari UUPM lebih cenderung kepada liberalisasi investasi. Liberalisasi pada sektor investasi khususnya investasi asing pada dasarnya eksis jauh sebelum lahirnya UUPM ternyata juga tampak secara tersirat dalam beberapa peraturan perundang–undangan di Indonesia. Perundang–undangan tersebut antara lain Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan.Banyaknya peraturan perundang–undangan yang berkarakter liberal sebagaimana diuraikan di atas mengindikasikan bahwa hak menguasai negara atas aset bangsa yang berkaitan dengan hajat hidup orang banyak sebagaimana diamahkan oleh Undang–Undang Dasar 1945 (Konstitusi) mulai “dikebiri” dengan adanya undang–undang yang tidak selaras semangatnya. Padahal, UUPM diterbitkan dalam kerangka mengimplementasikan amanat Pasal 33 Undang–Undang Dasar Negara Republik Indonesia Tahun 1945 (UUD NRI 1945). Dengan adanya peluang yang diberikan oleh pemerintah kepada investor asing sebagaimana yang diatur dalam Pasal 12 UUPM ditambah lagi dengan adanya Undang–Undang Nomor 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat, Undang–Undang Nomor 22 Tahun 2001 tentang Minyak Dan Gas Bumi, Undang–Undang Nomor 7 Tahun 2004 tentang Sumber Daya Air, dan Undang–Undang Nomor 30 Tahun 2009 tentang Ketenagalistrikan, maka investasi asing yang berhubungan dengan cabang– cabang yang menguasai hajat hidup orang banyak semakin eksis di Indonesia. Terbukanya investasi asing atas cabang–cabang produksi yang menguasai hajat hidup orang banyak tentunya hal ini bertentangan dengan konsep hak menguasai negara sebagaimana diatur dalam Pasal 33 UUD NRI 1945. Kata Kunci: Investasi Asing, Hak Menguasai Negara, Pasal 33 UUD NRI Tahun          1945


Author(s):  
Robert Leckey

Through the narrow entry of property disputes between former cohabitants, this chapter aims to clarify thinking on issues crucial to philosophical examination of family law. It refracts big questions—such as what cohabitants should owe one another and the balance between choice and protection—through a legal lens of attention to institutional matters such as the roles of judges and legislatures. Canadian cases on unjust enrichment and English cases quantifying beneficial interests in a jointly owned home are examples. The chapter highlights limits on judicial law reform in the face of social change, both in substance and in the capacity to acknowledge the state's interest in intimate relationships. The chapter relativizes the focus on choice prominent in academic and policy discussions of cohabitation and highlights the character of family law, entwined with the general private law of property and obligations, as a regulatory system.


2015 ◽  
Vol 8 (1) ◽  
pp. 41-59 ◽  
Author(s):  
František Ochrana ◽  
Kristýna Hrnčířová

Abstract Through the institute of public procurement a considerable volume of financial resources is allocated. It is therefore in the interest of contracting entities to seek ways of how to achieve an efficient allocation of resources. Some public contract-awarding entities, along with some public-administration authorities in the Czech Republic, believe that the use of a single evaluation criterion (the lowest bid price) results in a more efficient tender for a public contract. It was found that contracting entities in the Czech Republic strongly prefer to use the lowest bid price criterion. Within the examined sample, 86.5 % of public procurements were evaluated this way. The analysis of the examined sample of public contracts proved that the choice of an evaluation criterion, even the preference of the lowest bid price criterion, does not have any obvious impact on the final cost of a public contract. The study concludes that it is inappropriate to prefer the criterion of the lowest bid price within the evaluation of public contracts that are characterised by their complexity (including public contracts for construction works and public service contracts). The findings of the Supreme Audit Office related to the inspection of public contracts indicate that when using the lowest bid price as an evaluation criterion, a public contract may indeed be tendered with the lowest bid price, but not necessarily the best offer in terms of supplied quality. It is therefore not appropriate to use the lowest bid price evaluation criterion to such an extent for the purpose of evaluating work and services. Any improvement to this situation requires a corresponding amendment to the Law on Public Contracts and mainly a radical change in the attitude of the Office for the Protection of Competition towards proposed changes, as indicated within the conclusions and recommendations proposed by this study.


2019 ◽  
Vol 24 (3) ◽  
pp. 361-379
Author(s):  
Stephen Ridgwell

Abstract In Victorian England poachers and dogs were subject to increasing levels of public interest and engagement. This article considers how their various interactions were represented across a range of printed and visual media and suggests that in establishing the poacher as a largely positive figure the dog had a vital role to play. If a number of other factors worked in favour of the poacher, not least the widespread dislike of the Game Laws, important in this process of legitimation was the poacher’s active link to the canine world. Though ambiguity always surrounded the poacher, and the dog was not always to be found on his side, more often than not it was. The development of this association casts an interesting light on the framing of human-animal relations in the nineteenth century, a critical moment for those concerned with the ‘animal turn’ and notions of non-human agency, and reveals how the dog was more than just the poacher’s ally in the un-official hunting field. As an urban-centred culture acquired a distinctly ruralist orientation, within the popular knowledge economy the idea of the poacher and his dog resonated across boundaries of class and geography. This in turn provides new evidence of how, at the level of culture, the more disreputable sides of life could be accommodated within a society that ostensibly prized respectability.


2020 ◽  
pp. 073346482097880
Author(s):  
M. Aaron Guest ◽  
Brenda Stalzer ◽  
Maria Patton

Adult guardian ad litem programs are a necessary public service to protect adults from abuse and neglect. This article describes the development and implementation of an adult guardian ad litem program. We discuss the program’s impetus, pilot testing, evaluation, and implementation of the program. Our experience highlights the vital role of diverse inter-sectoral stakeholders. Furthermore, the development process highlights the need for flexibility in program development, tension negotiation among stakeholders, and engagement of aging stakeholders in nontraditional arenas.


2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.


2021 ◽  
Vol 4 (18) ◽  
pp. 01-08
Author(s):  
Fauzahani Pairan ◽  
Jessica Hai Liaw Ong ◽  
Mohd Juraimy Kadir ◽  
Nora Ibrahim

A public organization is an important sector in the administration of the Nation and it needs to remain relevant and accepted by society. The sub-sector such as services and security are the most important organizations that require high performance in society and the country to ensure security is always guaranteed. Military Training Academy, NDUM is an organization involved in various security and humanitarian operations either nationally or internationally. Accordingly, this study was conducted to assess employee motivation in public service activities by using the Public Service Motivation Model (PSM). The elements contained in the model are an attraction to public policymaking, commitment to the public interest, self-sacrifice, compassion, and ethical leadership. This study aims to analyze the relationship between Public Service Motivation (PSM) and organizational performance with ethical leadership among employees in Military Training Academy, NDUM. Quantitative research methods were used and questionnaires have been distributed to staff and instructors in Military Training Academy, NDUM, located in Kuala Lumpur by distributing the questionnaire and analyzed using SPSS 19. The results of this study showed that the attraction towards public policy-making (t=1.927, p>0.01), commitment to public interest (t=0.289, p>0.01), self-sacrifice (t=1.623, p>0.01), compassion (t=0.704, p>0.01) and ethical leadership (t=7.071, p<0.01). Ethical leadership encourages employees to participate in community service programs and improve organizational performance.


2020 ◽  
Vol 10 (4) ◽  
pp. 87-93
Author(s):  
Marian Hurkovskyi ◽  

The administrative measures for preventing corruption in the system of the National Police are investigated. The category �legal measures� in the context of modern scientific thought is considered in the theoretical aspect. The normative and legal framework for preventing corruption in the National Police is analyzed. During the analysis, the need to develop the institution of administrative measures for preventing corruption as the most widely used legal means in the system of preventing corruption in terms of international instruments in this field is substantiated. The significance of legal prohibitions and legal incentives in the system of administrative measures is revealed. Administrative measures for preventing corruption in the National Police bodies form a legal regime that is special in relation to the general administrative and legal regime of the public service and can be characterized as an ordinary, permanent, mostly prohibitive administrative and legal regime for preventing corruption in the National Police. The specificity of the administrative and legal regime for the prevention of corruption is defined by the formation of general provisions addressed to all public officials and special rules addressed exclusively to the police. The effectiveness of the administrative and legal regime is determined by a number of factors due to anti-corruption standards. The importance of anti-corruption standards for administrative measures of preventing corruption in the bodies, services and units of the National Police and the need of their development depending on the specifics of the unit are determined. Conceptual tasks of improving administrative measures for preventing corruption in the National Police are formulated.


2019 ◽  
pp. 304-332
Author(s):  
John Gardner

This chapter first considers the thoughts of Ronald Dworkin, who sparked the contemporary fashion, among lawyers and legal theorists, for contrasting ‘arguments of principle’ with ‘arguments of policy’. Dworkin did not regard the two categories of argument as jointly exhaustive, even in the special setting of the courtroom. But he did regard them as mutually exclusive. The chapter also discusses the way in which the courts cannot responsibly avoid counting the consequences of their decisions, or at least some of the consequences of their decisions, for the decisions of future courts. This is followed by a discussion of legal instrumentalism.


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