BETWEEN FORMALISM AND FLEXIBILITY. DILEMMAS OF THE REFORM OF THE ADMINISTRATIVE AND COURT-ADMINISTRATIVE PROCEDURE IN POLAND FROM A COMPARATIVE LEGAL PERSPECTIVE

2020 ◽  
Vol 4 (XX) ◽  
pp. 117-127
Author(s):  
Maciej Hadel
Keyword(s):  
Social Relations ◽  
Dynamic Change ◽  
Administrative Law ◽  
Specific Aspect ◽  
Public Authorities ◽  
Administrative Procedure ◽  
Legal Perspective ◽  
Efficiency And Effectiveness ◽  
The Individual ◽  
Administrative Proceedings

Administrative law is an area subject to dynamic change; this is due to the specificity of this branch of law, focused on the regulation of social relations established between the individual and public authorities in every sphere of life in which the legislator allowed the state to act. The subject of this study is to present one of the slices of changes in the above reality, namely the reform of administrative proceedings, which entered into force on June 1, 2017. The background of the presented considerations is the thesis of the administrative law crisis. This article focuses on a specific aspect of the above reform. Namely - the issue of challengeability of decisions within the administrative course of instance. Doctrinal positions in this area were presented, a comparative legal perspective was also presented, namely the reform of the Austrian administrative court procedure and the issue of administrative proceedings correlated with this issue. The article ends with conclusions regarding the lack of efficiency and effectiveness of the Polish model of administrative and court-administrative proceedings, especially in the context of the legitimacy of maintaining a model of two-instance administrative proceedings.

scholarly journals Judicial Protection of Individuals in an Administrative Procedure by Means of Administrative Proceedings

2021 ◽  
Vol 6 ◽  
pp. 34-41
Author(s):  
Aleksandr I. Stakhov ◽  
Keyword(s):  
Russian Federation ◽  
Administrative Law ◽  
Public Authorities ◽  
Administrative Process ◽  
Legal Norms ◽  
Administrative Procedure ◽  
The Russian Federation ◽  
Constitutional Right ◽  
Administrative Proceedings ◽  
Judicial Protection

The article highlights and studies judicial protection of individuals and organizations (individuals) in the administrative process as a special way of implementing justice on the appeals of citizens and their associations for the protection of their rights, freedoms, and legitimate interests in the course of Executive (non-judicial) and judicial administrative processes from the perspective of an integrative understanding of the administrative process. Taking into account the direct effect of the norms of the Constitution of the Russian Federation, the legal basis for judicial protection of individuals in administrative proceedings consists of two components: 1) the constitutional basis for; 2) legal grounds. Conducted a comprehensive analysis of the legal norms that constitute the constitutional basis and a legislative basis for judicial protection of individuals in administrative process, in which: justified the constitutional right of individuals to protection in the administrative process through the administrative procedure; is General conclusion that the subject of this judicial protection are contested in courts decisions and actions (inaction) of administrativepublic bodies and officials; the author substantiates the allocation of administrative court cases on the protection of individuals in administrative proceedings, which are divided into separate categories depending on the nature of the legal consequences of disputed decisions, actions (inaction) of administrative and public authorities and officials, as well as the nature of the dispute being resolved. In accordance with art. 72 of the Constitution of the Russian Federation allocated administrative law and administrative procedural decisions and actions challenged in court, in administrative proceedings, is the typology that best reveals the current level of processualists administrative activities public administration, other administrative public authorities and administrative public officials operating in the Russian Federation, allows you to identify priority areas of optimization of administrative proceedings in cases of settlement of administrative law disputes.

scholarly journals DEVELOPMENT OF THE ADMINISTRATIVE LAW IN THE KYRGYZ REPUBLIC

2020 ◽  
pp. 92-104
Author(s):  
Rustam Madaliev
Keyword(s):  
Administrative Law ◽  
Kyrgyz Republic ◽  
Public Authorities ◽  
Legal Norms ◽  
Administrative Procedure ◽  
Procedure Code ◽  
Administrative Legislation ◽  
Administrative Procedures ◽  
Law And Legislation ◽  
Administrative Justice

The article provides an overview and stages of the development of law and legislation on administrative procedures and administrative justice in the Kyrgyz Republic. The article discusses the adoption, implementation, content and the application of the new Law on Administrative Procedure and the Administrative Procedure Code of the Kyrgyz Republic. At the beginning, the socio-political background and the rationale for the ongoing judicial reforms and the efforts of the state to strengthen the rule of law in the Kyrgyz Republic are described. A significant part of article considers steps for developing a law on administrative procedures of the Kyrgyz Republic and the problems associated with its development. Then, the content and issues of implementation and the problems of the practical application of the new law on administrative procedures of the Kyrgyz Republic are disclosed. A separate part is devoted to the development, content, implementation and practice of the application of the new Administrative Procedure Code of the Kyrgyz Republic. The article also outlines the problems and shortcomings in the practice of applying legal norms on administrative procedures and administrative justice in the Kyrgyz Republic. In general, the article summarizes that a new system of administrative law has been formed in Kyrgyzstan to replace “Soviet” administrative law, but there are still problems in understanding and applying the new administrative legislation: not all the regulatory framework and practice of administrative agencies are brought into line with the new legislation; there are facts of not understanding, ignoring and not applying the new legislation by public authorities; not all curricula of higher legal education are brought in line with a new understanding of administrative law. It is necessary to continue the implementation measures to put into practice the new administrative legislation through organizational measures to educate and train law applicators, as well as the development of judicial practice in administrative cases.

scholarly journals DETERMINING INDIVIDUAL CATEGORIES OF ADMINISTRATIVE PROCEDURES FOR PUBLIC REGISTRATION OF CIVIL STATES WITH ACCOUNTING OF LEGISLATIVE TRANSFORMATIONS

2019 ◽  
pp. 170-173
Author(s):  
O. H. Pohrebniak
Keyword(s):  
Administrative Law ◽  
The Public ◽  
Administrative Procedure ◽  
Modern Development ◽  
The Status ◽  
Civil Status ◽  
Administrative Procedures ◽  
State Registration ◽  
Administrative Proceedings ◽  
Theoretical Developments

The article defines certain peculiarities of administrative proceedings of state registration of marriage and establishment of paternity in Ukraine. It has been established that the procedures for state registration of acts of civil status are types of administrative procedures, it should first be noted that the general normative act which should define the notions and peculiarities of such procedures should be the Law of Ukraine “On the administrative procedure” 2018, which at present time is a project and submitted to the VerkhovnaRada of Ukraine for consideration. As a rule, scholars agree that the administrative procedure is directly related to the activities of the public administration and is an established algorithm for the functioning of the subjects of power. In this case, the procedures for state registration of acts of civil status are no exception. They are a kind of administrative procedures and implemented by state authorities, and in certain cases, and by local self-government bodies. At the same time having its own peculiarities regarding the procedure for implementation and the subject structure of such procedures. It has been established that the modern development of domestic administrative legislation and the practice of its application testifies that at present the administrative procedure as an independent component of administrative law has not yet been fully formed, although, given the active theoretical developments of the representatives of the administrative and legal science on the pages of scientific, journalistic and educational publications concerning the concept, features, types and structure of administrative procedures, and referring to the active legislative development of this tyranny, it is safe to say that the process of the administrative procedure in the structure of administrative law is actively continuing. Therefore, on the basis of theoretical developments and practical features, the author’s understanding of the concept of “administrative procedure of state registration of acts of civil status” is determined. In addition, given the specific features of administrative proceedings for state registration of civil status acts, as well as for a more complete clarification of the status and authority of all participants in certain administrative procedures, the necessary additional introduction of the concept of “implementation of the administrative procedure” is argued. Such category will allow to find out the place, role and authority not only of the administrative body, but also other participants in administrative proceedings. Thus, under the implementation of an administrative procedure, it should be understood as the observance, execution, use and application of procedural steps directed at the consideration and resolution of an administrative case.

Final Report of the Attorney General's Committee on Administrative Procedure

1941 ◽  
Vol 35 (3) ◽  
pp. 501-506
Author(s):  
James Hart
Keyword(s):  
Attorney General ◽  
Final Report ◽  
The Public ◽  
Administrative Procedure ◽  
Private Interests ◽  
Public Hearings ◽  
Administrative Procedures ◽  
The Individual ◽  
Administrative Proceedings ◽  
Rule Making

What is undoubtedly the most thorough and comprehensive study ever made of Federal administrative procedure was completed with the submission to the Attorney General, in a letter dated January 22, 1941, of the final report of the Committee named. In its investigation and report, the Committee confined its attention to those Federal agencies that substantially affect private interests by their powers of rule-making and adjudication. To the study of their procedures, it assigned a staff of lawyer-investigators, which produced 27 mimeographed monographs, 13 of which have been printed as Sen. Doc. No. 186, 76th Cong., 3d Sess. In its interim report of January 31, 1940, the Committee thus described the methods being employed in the preparation of these monographic studies: “They have involved extended interviews with officials and employees of the agencies involved, with members of the public affected, and with attorneys who have represented clients before these agencies. Members of the Committee's staff have attended numerous hearings and other administrative proceedings as observers, and have closely examined the files of the agencies to discover the methods utilized in disposing of matters arising under the various statutes and regulations. Upon the completion of these investigations, the staff has prepared for the study of the Committee a preliminary report upon each agency, discussing in detail its administrative procedures. The report has been given to the officers of the affected agency for their consideration and comment. Thereafter, the full Committee has met with the agency's officers to discuss with them the facts and problems disclosed by the report.” (Final Report, pp. 254–255). The Committee held public hearings in June and July, 1940. In Chapter IX of its final report, it presents recommendations concerning a number of the individual agencies studied; and in Appendices B through M, it summarizes data collected on significant topics.

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

2019 ◽  
pp. 372-384
Author(s):  
Nataliya Anatolevna Buraschnickova
Keyword(s):  
Russian Federation ◽  
Personal Integrity ◽  
Distinctive Features ◽  
Judicial Control ◽  
Administrative Procedure ◽  
The Russian Federation ◽  
Judicial Procedure ◽  
The Individual ◽  
Administrative Proceedings ◽  
The Right

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.

scholarly journals GUARANTEES OF ACCESS TO ADMINISTRATIVE JUDICIARY

2020 ◽  
Keyword(s):  
Civil Rights ◽  
Local Governments ◽  
Administrative Law ◽  
Public Law ◽  
Access To Justice ◽  
Public Authorities ◽  
Constitutional Right ◽  
Administrative Proceedings ◽  
The Right ◽  
Judicial Protection

Introduction. Administrative proceedings for Ukrainian administrative law, as well as for the administrative law of most post-Soviet states, are a relatively new legal phenomenon. This presupposes the existence of many problems of its formation, which are connected, in particular, with the socio-political transformations that are still going on. These are, first of all, such problems as the formation and legislative consolidation of the legal basis for guaranteeing access and protection in the administrative court. Unhindered access to court and access to justice are necessary conditions for the exercise of the constitutional right to judicial protection. The main results of the study. Access to justice is one of the prerequisites for the establishment of this branch of government as a full-fledged and self-sufficient mechanism for the protection of human rights and freedoms. The Constitution of Ukraine laid the foundations for the formation of access to justice, stipulating that recourse to the court for the protection of human and civil rights and freedoms is guaranteed directly on the basis of the Basic Law. The influence of international normative legal acts on the development of national legislation regulating a person's right to apply to an administrative court for protection was considered. The Constitution of Ukraine guarantees the right of a person to judicial protection and appeal against decisions, actions or omissions of public authorities, local governments, officials and officials. Administrative justice is called upon to implement this provision. Conclusions. The article determined that the right to appeal against decisions, actions or omissions of public authorities, local governments, officials and officials, a component of which is the right to go to court (right to access to court proceedings), is not abstract, but has a connection. connection with the right of a particular person in whose interests the trial is taking place, and with his conviction that the state, represented by public authorities and local governments, officials and officials have unlawfully interfered with his rights or freedoms. The obligatory feature of a public law dispute was that a person believes that there is a violation of his rights and freedoms as a result of the performance or non-performance of government functions. In order to go to court, a person who is a plaintiff must have a substantive legal interest in resolving a public law dispute. The article highlighted and analyzed some problems of ensuring access to justice by administrative courts in resolving public law disputes. His own vision for solving and eliminating the problems of access to justice in administrative proceedings is offered.

scholarly journals EXECUTION OF ADMINISTRATIVE ORDERS ACCORDING TO SWISS ADMINISTRATIVE LAW

2019 ◽  
pp. 62-71
Author(s):  
Marc Steiner
Keyword(s):  
Administrative Law ◽  
Penal Code ◽  
Special Importance ◽  
Public Authorities ◽  
Administrative Procedure ◽  
The Law ◽  
The Difference ◽  
Debt Enforcement

This contribution elaborates on the rather seldom treated topic of “execution” of administrative acts which lies at the interface between the administrative law and the law on administrative procedure. Special importance hereby is attributed to remedies against decisions on the enforcement of administrative acts and other types of injunction, that are in connection with a threat of punishment in accordance with Article 292 of the Swiss Penal Code. With reference to a recent judgment of the Swiss Federal Administrative Court, the law on debt enforcement and bankruptcy is also explained pointing out the difference between the enforcement of administrative acts and the execution of contractual claims on the part of public authorities.

scholarly journals Effectiveness of procedural decisions in first-instance administrative proceedings

2021 ◽  
Vol 60 (91) ◽  
pp. 75-96
Author(s):  
Dejan Vučetić
Keyword(s):  
Administrative Process ◽  
Administrative Procedure ◽  
Efficiency And Effectiveness ◽  
Research Questions ◽  
Compensation For Damage ◽  
Interim Measure ◽  
Administrative Proceedings ◽  
Procedural Decisions ◽  
Procedural Rights

The paper analyzes the normative regulation of the procedural administrative decision institute, which was introduced into the Serbian administrative process as a novelty by the General Administrative Procedure Act (GAPA) in 2016. The paper aims to addresses three research questions: to determine the legislator's goal in regulating this insitute, to identify in which situations such a decision has to be made, and to establish how effective that type of decision is. At the beginning of the paper, the author focuses on the concept of effectiveness, including different, mutually opposed, approaches to defining that notion. The author points out the conceptual misunderstanding between efficiency and effectiveness, and their unjustified equalization. The main goal of introducing the institute of procedural administrative decision is the aspiration for greater protection of parties' procedural rights. The analysis of the text of the General Administrative Procedure Act has yielded seventeen basic types of procedural administrative decisions: a decision on rejecting the party's request, a decision not to allow alteration of the party's request, a decision on suspending the procedure, a decision on termination of the procedure, a decision on imposing a fine, decision on request, a decision on execution, a decision on securing the execution, a decision on appointing a temporary representative, a decision on denying representation to a quack lawyer for unlicenced practice of law, a decision on proposal for restitution, a decision on bearing preliminary procedure costs, a decision on exemption from procedure costs, a decision on payment of costs resulting from the absence or unjustified denial of testimony, a decision on compensation for damage to the holder, a decision on the proposal for providing evidence, and a decision on ordering an interim measure. The author concludes that the institute of procedural administrative decision can negatively affect the effectiveness of administrative proceedings due to the possibility of its unnecessary extension.

scholarly journals REVIEW OF THE TEXTBOOK M. I. SMOKOVYCH, V. M. BEVZENKO «ADMINISTRATIVE PROCESS OF UKRAINE: THEORY, PRACTICE»

2021 ◽  
pp. 145-148
Author(s):  
O. I. Mykolenko
Keyword(s):  
Legal Regulation ◽  
Administrative Law ◽  
Administrative Process ◽  
Legal Proceedings ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Administrative Proceedings ◽  
Functional Purpose

Administrative process is a legal phenomenon that causes discussion and controversy among representatives of administrative law and the process both in terms of determining its content, form and functional purpose in the system of legal proceedings, and in terms of subjects, principles and substantive jurisdiction. Thus, the ideas of Ukrainian scholars about the administrative process are not always related exclusively to the understanding and legal regulation of administrative proceedings, and therefore textbooks and manuals on the disciplines "Administrative Procedure" and "Administrative Procedural Law" differ significantly in content.

scholarly journals PUBLIC AND LEGAL RELATIONS AS A SPHERE OF JUDICIAL PROTECTION OF VIOLATED RIGHTS, FREEDOMS, AND INTERESTS

2021 ◽  
Vol 7 (2) ◽  
pp. 219-223
Author(s):  
Vyacheslav Tylchyk ◽  
Viktor Leschynsky
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Self Regulation ◽  
Legal Regulation ◽  
Functional Method ◽  
The State ◽  
Public Authorities ◽  
Legal Form ◽  
Legal Norms ◽  
Administrative Proceedings

The role of legal relations in legal science cannot be overestimated, especially given the expansion of the boundaries of the subject of administrative law, which leads to the need to rethink its content. Legal relations can be defined as a kind of phenomenon that is a sign of a systemic connection and includes law in its subjective and objective sense. This is due to the fact that the law without legal relations loses its practical meaning, even in the case of certain material leverage. An important statement in the context of scientific research is that law is a real element of public life only when its existence is mediated by legal relations. It is clear that the sphere of public and law relations is much narrower in terms of the volume of social relations in general, which are due to the presence of phenomena that, crystallizing through the prism of legal regulation, acquire legal consolidation and significance. Analysing social relations (individual phenomena, institutions), scientists automatically transfer them to the legal plane. In this case, it is not possible to state the equal importance of social relations and law in legal relations, because the first will fill the legal gaps that will be the cornerstone of their order, and the conceptual apparatus of such a system will have to affect the legal form of law enforcement or vice versa. The reflexivity of a person’s perception of social norms expressed in the balance of social relations and law in legal relations can be established only by analysing not only legal norms but also social relations, which they organize in a “volumetric” sense. It is clear that such a process should not turn into a mechanical increase in legal regulation, but take into account the peculiarities of social relations, which, in fact, indicate anthropocentrism rather than the fact of priority or importance for the state as a subject (participant). In this context, it should be noted that today it is extremely difficult to determine which relations are most important for the state; moreover, the balance of human-centrism seems unclear, because without the participation of public authorities in the declared “self-regulation” to reach any “stability” whether it is impossible to overcome the negative phenomena. Methodology. The solution of the tasks is carried out using the cognitive potential of the system of philosophical, general scientific and special methods. Constitutionalism and synthesis allowed to define attributes and essence of the concept of “public law relations” and create this and other concepts. Using the form of analysis – systematization – the problems of classification of disputes in the field of public relations are identified, which are resolved by administrative courts. The structural and functional method is used during the characterization of public and law relations as a sign of a dispute, which is resolved in administrative proceedings and the study of the structure of the judicial administrative process. Methods of linguistic analysis and interpretation of legal norms helped identify gaps and other shortcomings in the legislation, develop proposals for its improvement.

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