THE INSTYTUTION OF THE WAIVER OF THE RIGHT TO APPEAL IN GENERAL ADMINISTRATIVE PROCEEDINGS (ART. 127A K.P.A.)

The Right ◽

Legal Consequences

The article presents the right to appeal against an administrative decision, which is a relatively new institution, introduced to the Code of Administrative Procedure on June 1, 2017. The article discusses the conditions that determine the recognition of a waiver of an appeal as effective, the legal consequences of the waiver of an appeal, as well as the most important problems regarding the use of this institution. Concise way to regulate this institution in the Code of Administrative Procedure for it raises a lot of ambiguities and causes discrepancies in both doctrine and administrative court rulings. The final part of the article contains general conclusions about the described institution.

Forms of consumer protection

Pravo i privreda ◽

10.5937/pip2103227v ◽

2021 ◽

Vol 59 (3) ◽

pp. 227-267

Author(s):

Dragan Vujisić ◽

Milan Rapajić

Keyword(s):

Dispute Resolution ◽

Consumer Protection ◽

Alternative Dispute Resolution ◽

Consumer Protection Act ◽

Civil Proceedings ◽

The Law ◽

The Right ◽

Judicial Protection

The authors point to the plurality of forms of consumer protection. Private law form of consumer protection is individual protection in civil proceedings. The protection of the collective interests of consumers in most European legal systems is achieved through litigation. The Consumer Protection Act entrusts the protection of the collective interests of consumers to administrative bodies, which is realized in administrative proceedings, whose rules are characterized by considerable differences in relation to the rules provided by the Law on General Administrative Procedure. A significant unit is dedicated to the mechanism of alternative dispute resolution, especially arbitration and mediation. The shortcomings of the Law on Consumer Protection regarding certain contradictory provisions are pointed out. The legislator stimulates alternative dispute resolution, and on the other hand stipulates that contracting one of these methods does not affect the right to judicial protection. The paper also analyses the inspection.

Mediator w postępowaniu administracyjnym

Opolskie Studia Administracyjno-Prawne ◽

10.25167/osap.1166 ◽

2019 ◽

Vol 16 (1 (4)) ◽

pp. 117-131

Author(s):

Wiktor Trybka

Keyword(s):

Civil Rights ◽

Public Administration ◽

Mediation Process ◽

Applicable Law ◽

The Public ◽

Case Files ◽

The Right ◽

Procedural Rights

Amending the Code of Administrative Procedure, the legislator decided to introduce the possibility of conducting mediation proceedings. A mediator may be a natural person who has full legal capacity and exercises full civil rights. The mediator’s role is to ensure the conduct of the mediation process. They have the responsibility to stimulate the initiative of the parties by means of appropriate mediation techniques, as well as to create an appropriate climate of conversation, based on mutual trust and respect. The mediator uses procedural rights, which include: the right to read the case files and the right to remuneration and reimbursement of expenses related to mediation. The Code of Administrative Procedure also imposes procedural obligations on the mediator: it must maintain impartiality in the conduct of mediation and draw up a report on mediation. Participants in the mediation are also parties of the administrative proceedings and a public administration body. The task of the public administration body is to determine whether the arrangements made by the parties with the participation of the mediator fall within the scope of the generally applicable law.

On the issue of the optimal procedural form of judicial control over the observance of the right to freedom and personal integrity

Current Issues of the State and Law ◽

10.20310/2587-9340-2019-3-11-372-384 ◽

2019 ◽

pp. 372-384

Author(s):

Nataliya Anatolevna Buraschnickova

Keyword(s):

Russian Federation ◽

Personal Integrity ◽

Distinctive Features ◽

Judicial Control ◽

The Russian Federation ◽

Judicial Procedure ◽

The Individual ◽

The study is devoted to the analysis of the procedural form of consideration by the courts of the Russian Federation of administrative cases related to the implementation of judicial control over the observance of the right to freedom and personal inviolability. We give the main characteristics of material public legal relations, within which the state may exercise the statutory restriction of the right of the individual to freedom and inviolability. As a result of a study we come to a conclusion that the essence of these legal relations predetermines the necessity of functioning in the Russian Federation of preliminary judicial control over observance of the right to freedom and personal inviolability as the most effective guarantee of prevention of arbitrary and illegal restriction of this right. The nature of material legal relations and the nature of the law protected by the court indicate the need to consider such cases in the order of special administrative proceedings, the distinctive features of which are formulated by the author. The suggestions we give on amendments to the legislation on administrative judicial procedure aimed at the selection of cases on judicial review in cases of “special administrative procedure” with the establishment of the Code of administrative procedure of the Russian Federation the unified rules and regulations governing the handling all types of cases involving the exercise of judicial control over observance of the rights of citizens and organizations.

How many Instances in the Polish Administrative Procedure? Analysis of Normative Solutions in the Aspect of Procedures for Reviewing Decisions Issued by the Executive Bodies of Local Self-government

Lex localis - Journal of Local Self-Government ◽

10.4335/18.3.977-997(2020) ◽

2020 ◽

Vol 18 (4) ◽

pp. 977-997

Author(s):

Magdalena Maria Michalak ◽

Przemysław Kledzik

Keyword(s):

The Subject ◽

Administrative Courts ◽

The Republic ◽

Pursuant to the art. 78 of the Constitution of the Republic of Poland each party has the right to appeal against judgments and decisions issued in the first instance. The Constitution also stipulates that administrative courts control the activity of administration in at least two-tier proceedings. Pursuant to the above, in Poland, decisions are issued in two-tier general administrative proceedings and may be subject to review in two-tier court administrative proceedings. The number and structure of procedures of appeal against administrative decisions have been a subject of discussion for years. Criticism of the current solution comes, among others, from local self-government representatives whose bodies issue the largest number of decisions in Poland. These issues have recently become even more relevant due to statutory obligation of reviewing Polish legislation in terms of legitimacy of reducing the number of administrative instances. The subject of the study is an analysis of possibility and purposefulness of limiting the number of instances in the administrative procedure, conducted on the example of a procedure for reviewing decisions of local self-government bodies. The reflection was made taking into account systemic and procedural position of Self-Government Boards of Appeal.

INSTITUTE OF ADMINISTRATIVE CLAIM: CURRENT STATE AND DEVELOPMENT PROSPECTS

Constitutional State ◽

10.18524/2411-2054.2021.43.240950 ◽

2021 ◽

pp. 28-34

Author(s):

O. H. Kostromina ◽

H. O. Babenko

Keyword(s):

Public Relations ◽

System Analysis ◽

Administrative Claims ◽

Legal Method ◽

Analysis And Synthesis ◽

Definition Of ◽

An administrative claim is one of the main institutions of administrative justice. To understand the institution of an administrative claim as a complex legal structure covering the right of a person to apply to an administrative court with a request, it is necessary to clarify the concept, legal nature, types of administrative claim. The purpose of the article is the theoretical and legal characteristics of the categories of the institution of administrative proceedings, the definition of the concept, the definition of the essence and structure of an administrative claim, the criterion for its classification, making proposals aimed at improving the Code of Administrative Procedure of Ukraine. The methodological basis of the research is a combination of general scientific and special methods of cognition. The research is based on the dialectical method of scientific cognition of the phenomena of reality in their development and interrelation. The achievement of certain research objectives led to the use of such methods as: the historical and legal method – when analyzing claims in administrative proceedings, the system analysis method made it possible to consider an administrative claim as a single system with its own structure and dynamics of development. The methods of analysis and synthesis, structural-functional, synergetic and other methods were also used, which made it possible to comprehensively explore the problematic aspects of understanding the institution of administrative claims. An administrative claim is understood as a material claim of the plaintiff for the protection of rights, freedoms and interests in public law relations, addressed to an administrative court. Various approaches to the classification of administrative requirements depending on the content are described. The internal structure of the administrative claim is described, in connection with which the provisions of the legislation are analyzed. The substantive and procedural aspects of the claim are highlighted. Analyzes the legal requirements for an administrative claim. It is noted that within the framework of administrative legislation, in particular in the Code of Administrative Procedure of Ukraine, the types of administrative requirements are not directly defined. It has been established that at the scientific and theoretical level, the main criteria for the classification of administrative claims are: the subject of an administrative claim, a method of procedural protection, a method of achieving procedural goals, the nature of material legal relations. The main tasks that an administrative claim solves as a procedural means of protecting rights, freedoms and interests in the field of public relations are determined.

Administrative Procedure and Judicial Review in Ukraine

10.1093/oso/9780198867609.003.0015 ◽

2021 ◽

pp. 79-81

Author(s):

Halyna Dovhan

Keyword(s):

Public Relations ◽

Judicial Review ◽

Public Law ◽

Administrative Act ◽

Administrative Courts ◽

This chapter evaluates administrative procedure and judicial review in Ukraine. The Constitution of Ukraine provides that 'Administrative courts function in order to protect the rights, freedoms, and interests of a person in the sphere of public relations'. According to the Code of Administrative Proceedings (CAP), all persons have the right to bring a case before the administrative court if they consider that their rights, freedoms, or legal interests have been infringed by the decision, action, or inaction of the empowered authority. While the Constitution states that the jurisdiction of courts covers any legal dispute, the CAP entrusts administrative courts with jurisdiction over all public-law disputes. Absent a law on administrative procedure or administrative acts, in such cases the courts use the provisions of the special law that regulates the concrete sphere. They examine the administrative act or measure from the viewpoint of its conformity with the criteria set forth in the CAP. If the court finds that there has been a breach of fundamental standards of administrative propriety and fairness, it is entitled to quash the contested act or measure and also to award damages.

Realizacja prawa wglądu w akta sprawy w postępowaniu administracyjnym

10.31338/2544-3135.si.2020-85.18 ◽

2021 ◽

pp. 271-287

Author(s):

Karolina Wojciechowska

Keyword(s):

Working Hours ◽

Administrative Records ◽

System A ◽

The Hours ◽

Information And Communication ◽

On Line ◽

The Right ◽

Right Of Access

The subject of the article is an analysis of the realisation of the right to access to administrative records in public administration authorities. This right is the most important manifestation of the right of access to the records, which a party to administrative proceedings is entitled to. The right to access the administrative records is limited by the fact that the party has access to incomplete, unstructured, unnumbered records or unavailable records without issuing a refusal of access to the records, as well as access to the records in places not adapted for that purpose. The right of access is also limited by the following restrictions which do not exist in the Code of Administrative Procedure but are applied by the authorities: the hours of visitors and the queuing system. A party should be able to review his or her personal records during the office’s working hours in a room adapted for that purpose. I propose that the party should be able to access the records in the body’s information and communication system at on-line remote.

Nowy model środków zaskarżenia po nowelizacji Kodeksu postępowania administracyjnego z dnia 7 kwietnia 2017 r.

Studia Iuridica ◽

10.5604/01.3001.0013.2323 ◽

2019 ◽

Vol 78 ◽

pp. 414-429

Author(s):

Rafał Stankiewicz

Keyword(s):

Procedure Code ◽

Constitutional Right ◽

The article addresses the issue of alterations to the Administrative Procedure Code (after the most recent amendment, which went into effect on June 1, 2017) in relation to the constitutional right to appeal against decisions delivered in the course of administrative proceedings. The author presents and analyses the new regulations with emphasis on the modifications to the forms of recourse, including solutions that exclude the right to second instance proceedings (by operation of law or upon request of the parties), and introduce limitations to the right (in terms of the content of the appeal or the scope of its examination).

Participants in Administrative Court Proceedings in Multi-Stakeholder Proceedings

Przegląd Prawa Administracyjnego ◽

10.17951/ppa.2020.3.123-143 ◽

2021 ◽

Vol 3 ◽

pp. 123-143

Author(s):

Jakub Polanowski

Keyword(s):

Public Announcement ◽

Procedure Code ◽

The Law ◽

Administrative Courts ◽

Court Proceedings ◽

Multi Stakeholder ◽

The Right ◽

Right Of Access

This article is conceptual in nature and addresses the application of the rules on the participation of participants in administrative court proceedings. The main thesis of the paper is based on the statement that a person who, as a party to administrative proceedings, was notified, pursuant to Art. 49a of the Administrative Procedure Code, of the activities of an authority by public announcement, may become a participant in administrative court proceedings after fulfilling the condition specified in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The subsidiary thesis is that reasons of procedural efficiency require the adoption of such a limitation of the rights of the designated entities that will not infringe the essence of their right to a court and will not impede the exercise of that right by the parties and other participants to the proceedings. The purpose of this paper is to provide that Art. 49a of the Code of Administrative Procedure is one of the “special provisions” referred to in Art. 33 § 1a of the Law on Administrative Courts Proceedings. The reasoning adopted is based on the assumption that the interpretation of the above provisions should take into account both the requirements arising from the right of access to court and the right to be heard without unreasonable delay and the need to minimise the costs of proceedings. The described issue, based on national research, is of significant importance for practice and have not yet been discussed in more detail in the doctrine.

The POSITIVE SILENCE TO THE REMOVAL OF TREES – AN ANALYSIS OF A LEGAL INSTITUTION

Review of European and Comparative Law ◽

10.31743/recl.4767 ◽

2019 ◽

Vol 36 (1) ◽

pp. 7-26

Author(s):

Anna Haładyj ◽

Katarzyna Kułak-Krzysiak

Keyword(s):

Environmental Protection ◽

Point Of View ◽

Legal Institution ◽

Nature Protection ◽

Tree Removal ◽

Common Nature ◽

The authorisation for removing trees constituting a common nature protection instrument was supplemented in 2017 by the obligation to notify the intention to remove trees. The right to notify and object to the intention of tree removal corresponds conceptually to the model of positive silence provided for in the amended Code of Administrative Procedure as one of the ways of administrative silence. Our objective is to analyse procedural solutions and the substantive institution of environmental protection law which consists in a notification from the point of view of assessing the correctness of its application when considering law science and administrative proceedings