A CASH EQUIVALENT FOR UNUSED LEAVE OF A POLICE OFFICER.PROBLEMS OF JURISPRUDENCE OF POLICE BODIES RELATED TO THE CONSTITUTIONALITY OF ART. 115A OF THE POLICE ACT

2021 ◽  
Vol specjalny (XXI) ◽  
pp. 743-753
Author(s):  
Wojciech Maciejko
Keyword(s):  
Public Administration ◽  
Legal Form ◽  
The Law ◽  
Administrative Courts ◽  
The Right

The article presents the difficulties that, in the application of, currently, both for public administration bodies and administrative courts, art. 115a of the Police Act. In the conclusions it was stated that one of the sources of misunderstandings on the background of this regulation is the duality of the legal form of action used by the Police authorities specifying the right to a police equivalent, i.e. the company of a material and technical act when the law is granted, and the form of an administrative decision when it occurs to refuse to accept the officer’s request.

scholarly journals CIVIL AND CRIMINAL RULES OF THE BABYLONIAN LAW

2013 ◽  
Author(s):  
Ion Tutuianu
Keyword(s):  
Human Rights ◽  
Social Status ◽  
Public Administration ◽  
Scientific Development ◽  
Family Obligations ◽  
The Law ◽  
The Right ◽  
Administrative Penalty

By its age and principles, Babylonian law has drawn attention of all epochs, laying at the basis of scientific development of modern law. The regulation, more than 4000 years ago, of property, family, obligations, public administration, succession, probation principle, represents the proof that the institutions which today regulate these aspects, have been a preoccupation for mankind ever since its beginning. Even if penalties were distributed depending on social status, a progressive element is represented by the fact that the act could only be punished if it met the condition of intent. The legal monument of this system of law, Hammurabi Code, has an important signification by the fact that upon that date, the law and the judges aimed at ensuring life to citizens and to guarantee them certain rights, considerably more than other countries in the epoch. It is striking that in antiquity, the right of succession lies all the children regardless of the number of marriages and criminal aspect beyond class character, crimes regulation retained the substance, the changes incurred on penalties take into account the evolution of human rights, as how malpractice mutilation was replaced by pecuniary or administrative penalty.

Administrative Procedure and Judicial Review in Lithuania

2021 ◽  
pp. 69-71
Author(s):  
Agnė Andrijauskaitė
Keyword(s):  
European Union ◽  
Public Administration ◽  
Judicial Review ◽  
General Rule ◽  
The European Union ◽  
The Public ◽  
Administrative Procedure ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Proceedings

This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.

scholarly journals Сoncepts and elements of judicial enforcement

2021 ◽  
Vol 2021 (2) ◽  
pp. 33-45
Author(s):  
L. P. Samofalov ◽  
◽  
О. L. Samofalov ◽  
Keyword(s):  
Law Enforcement ◽  
International Standards ◽  
Judicial Power ◽  
Judicial Reform ◽  
Public Authorities ◽  
Legal Form ◽  
Positive Law ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The problems of judicial enforcement are considered in the article. It is emphasized that judicial enforcement is a legal form of state functions implementation. The need to study this legal category is emphasized. This need is related to the harmonization of legislation with international standards, judicial reform, and increased protection of human rights. Different points of view of legal scholars concerning judicial enforcement are investigated. It is concluded that the judicial application of the law is based on the rules of positive law. A judge may not refuse to hear a case due to gaps in the law. Judicial enforcement is associated not only with the application of the law, but also with their interpretation, and sometimes lawmaking. On the one hand, the judiciary is a manifestation of power, and on the other it is the most rational and effective form of control over the activities of state power. It is stated in the article that justice, as a court activity carried out in the form of civil, administrative, criminal, economic and constitutional proceedings, takes place in the procedural forms established by law. Law enforcement activity of the court is a long, complex and systematic process. It has a specific purpose, that is a clearly defined value, which includes recognition of a person, their life, health, honor and dignity, inviolability and security. It is stated that law enforcement cannot be carried out beyond the principles of law, as they go through all the rules of law and are the basis of the legal system. The components of the rule of law are recognized by the international community. In particular, they are: – the right to appeal against the actions of public authorities; – free assessment by the court of the circumstances of the case; – independence and impartiality of judges; – independent judicial procedure, which covers fairness, openness, reasonable time for consideration of the case, availability of legal aid; – binding nature of court decisions. In order to ensure the proper judicial system functioning, it is proposed to amend the current legislation in the process of judicial reform. The conclusions to the article stipulate that the court performs both law enforcement and law-making functions. The essence of the administration of justice and judicial activity is reduced to the application of law. In the process of administering justice, the judiciary acts in clearly defined procedural forms. Judicial power, as a subject of constitutional regulation, is exercised precisely in justice, and justice is administered and administered by the court through judicial enforcement. Key words: judicial enforcement, justice, judicial activity, judicial power, judicial proceedings, judicial lawmaking.

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>

scholarly journals XII.—On Archaic conceptions of property in relation to the Laws of Succession; and their survival in England

Archaeologia ◽  
1887 ◽  
Vol 50 (1) ◽  
pp. 195-214
Author(s):  
G. Laurence Gomme
Keyword(s):  
Dominant Form ◽  
Legal Form ◽  
The Law ◽  
The Right ◽  
Rural England

Primogeniture, aided by legal powers and by the strong necessities of feudal polity, has become in this country the dominant form of succession to title and estate, and has consequently thrust out of consideration many other forms which exist here and there. Two of these other forms, Gavelkind and borough-English (so called), have received some attention from lawyers and legal antiquaries, and they obtain in many localities as the legal form of succession; but there are other customs which have been altogether neglected, and which obtain in only a few isolated localities. The lawyer at the bidding of statesmen has striven for the furtherance of the right of primogeniture, and every other custom has had to prove its case before it could obtain recognition. Therefore, in a certain sense the law has never recognised any other form of succession than primogeniture. But what I shall have to point out in the following pages is that in the annals of rural England there are many conceptions attached to the holding of property, which, though succumbing in law to primogeniture, have left a history behind which is well worth examining. Before Mr. Elton dealt with primogeniture and junior-right as common descendants from one parent, an examination of the right of primogeniture never led the inquirer beyond the area bounded by feudal history. But by examining the two forms of succession together it has been shown that we arrive at the archaic family.

DISCRETIONAL POWERS OF PUBLIC ADMINISTRATION SUBJECTS IN THE CONTEXT OF PROTECTION OF RIGHTS, FREEDOMS AND INTERESTS OF PRIVATE PERSONS IN ADMINISTRATIVE JUSTICE

2017 ◽  
Author(s):  
Yuliia Shevchenko ◽  
Keyword(s):  
Public Administration ◽  
Positive Side ◽  
European Court ◽  
Legitimate Interests ◽  
Administrative Courts ◽  
European Standards ◽  
Administrative Proceedings ◽  
The Right ◽  
Exercise Of Discretion ◽  
Discretionary Powers

This article considers the protection of the rights, freedoms and interests of individuals in administrative proceedings. The provisions of administrative procedural legislation governing the exercise of their powers by courts in resolving disputes related to administrative discretion of subjects of power, as well as national case law, in particular, the study of scientific positions of administrative scientists, the Code of Administrative Procedure of Ukraine, positions of administrative courts set forth in court decisions when considering cases related to the violation of the rights, freedoms and legitimate interests of citizens in the exercise of discretionary powers by the subjects of public administration; providing conclusions on the importance of the role of administrative courts as the main national institution for the protection of the rights and interests of individuals from violations by the public administration. The key positions of the European Court of Human Rights on the limits of judicial control over the exercise of discretionary powers by public administration entities are also presented. The article concludes that administrative courts implement European standards of the right to a fair trial in terms of the right to effective judicial protection, and thus play an important role in protecting the rights of individuals in resolving disputes related to the exercise of discretion by public administrations. At the same time, the author emphasizes the positive side of the introduction of short stories in the new version of the CAS of Ukraine, namely the power of courts to impose obligations on the defendant to fulfill its obligations under law and bylaws, although the court has no right to specify ) must be accepted (committed) by the defendant; as well as the obligation to provide a mandatory indication of the need to take into account the legal assessment of the court in the decision, if the court only obliges the subject of power to resolve the issue using discretion.

scholarly journals Kompetencja sądu administracyjnego do uznania w wyroku uprawnienia lub obowiązku wynikających z przepisów prawa

2019 ◽  
pp. 27-51
Author(s):  
Agnieszka Ciesielska
Keyword(s):  
Public Administration ◽  
Case Studies ◽  
Judicial Review ◽  
Legal Framework ◽  
Individual Rights ◽  
Judicial Decision ◽  
Independent Basis ◽  
Legal Effect ◽  
Administrative Courts ◽  
The Right

The purpose of the article is to present the competence of the administrative court indicated in Article 146 § 2 of the Act of 30 August 2002 – the Law on proceedings before administrative courts (LPAC). In accordance with this provision, in matters concerning complaints against an Act or an action related to public administra­tion referred to in Article 3 § 2 point 4 of the LPAC, the court may recognize in its judgment a right or an obligation arising from the provisions of law and may issue a relevant decision in the matter if it first annuls the act or declares that the action is with no legal effect pursuant to Article 146 § 1 of the LPAC. It must be emphasized however, that Article 146 § 2 of the LPAC is not an independent basis for issuing a judgment and the doctrine often presents differing views. It should be assumed that the court may recognize the right or the obligation of an individual that arises from the provisions of law if the nature of the case permits doing so and when the facts and the legal framework of the case do not raise rea­sonable doubts. Unfortunately, judicial case studies show that this possibility is rarely used. Furthermore, courts encounter numerous problems in applying Article 146 § 2 of the LPAC, most probably because of the huge controversy regarding this procedural institution. Firstly, there is no consensus as to the function of the judicial decision based on the provision in question, and the interpretation of its facultative nature is also problematic. In the author’s opinion administrative courts should use the competence referred to in Article 146 § 2 of the LPAC more frequently. Such a change of practice would increase the effectiveness of judicial review of public administration as well as will enhance the level of protection of individual rights. The article also contains some interesting examples of the application of Article 146 § 2 of the LPAC.

scholarly journals NON-JUDICIAL MEDIATION IN THE LITHUANIAN ADMINISTRATIVE PROCESS: CURRENT ISSUES

2019 ◽  
pp. 115-134
Author(s):  
Eglė Bilevičiūtė ◽  
Vaidas Milius
Keyword(s):  
Public Administration ◽  
Civil Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
Successful Implementation ◽  
Mediation Model ◽  
Administrative Process ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Proceedings

The article is the first scientific study in the cycle of extrajudicial mediation in the administrative process of Lithuania. The purpose. The article describes the envisaged new legal regulation of non-judicial mediation in the Lithuanian administrative law process, analyzing the works of Lithuanian scholars in this field and new draft legal acts, through the categories defined in the research tasks. The aim of the article is to briefly present and discuss the institute of non-judicial mediation in Lithuanian administrative law science and practice, its current and foreseeable development in administrative justice, to define and analyze the aims of non-judicial mediation in administrative law new legal regulation, the envisaged possibilities of non-judicial mediation as an alternative to peaceful dispute resolution in the administrative law system in Lithuania. In order to achieve the aim and objectives of the research, the analysis of Lithuanian scientists’ works and basic laws and newly drafted legal acts implementing non-judicial mediation, pre-trial administrative proceedings and Lithuanian administrative legal regulation was carried out. Methods: comparative, documents’ analysis, systematic approach and other methods were used for research. Results of research. It can be reasonably stated that Lithuania, having regard to the successful implementation of mediation in civil law, has prepared appropriate amendments to new laws and other legal acts and created an efficient operational basis for the proper functioning of non-judicial mediation in pre-trial administrative proceedings. Conclusions. Summarizing this study, it can be concluded that the legal regulation of non-judicial mediation drafted by the legislators is based on analogy with the regulation of mediation in civil law. As judicial mediation in administrative proceedings is already legally regulated, as a complete analogue to civil mediation and administrative courts already apply it in practice, it is expected that the regulation of non-judicial mediation in administrative proceedings will follow a similar model. According to the proposed non-judicial mediation model, such mediation will only be possible once the dispute has been initiated and resolved by the Lithuanian Administrative Disputes Commission or its territorial offices. Such a model is acceptable given the practical work of the commission and the existing legal regulation, and the commission could operate on the basis of the mediation model of administrative courts. However, the question of the qualifications of mediators remains unresolved, as legal theorists do not agree on what the qualifications of mediators in extrajudicial administrative proceedings should be. There is disagreement as to whether a person who has completed only a supplementary course on administrative law will acquire the necessary knowledge and qualifications, as well as whether it is necessary to have a legal education and a thorough knowledge of the principles of public administration. It should be noted that the successful application of non-judicial mediation in administrative proceedings is highly influenced by the nature of the dispute. It is believed that in administrative disputes concerning material, tax relations, civil service, administration of national, European Union and foreign financial assistance, the possibility of mediation seems realistic in order to resolve the dispute and restore the balance of social peace in a manner acceptable to all parties to the dispute. The first steps have already been taken, the law stipulates that a public administration entity may not aggravate the situation of the person subject to the decision by making or modifying the decision. The drafts initiated in this way are related to the extension of the jurisdiction of the disputes dealt with by the Administrative Disputes Commission, in the hope that before the new wording of the Law on Mediation comes into force, other legal acts will be regulated to enable successful non-judicial mediation.

Wznowienie studiów

2019 ◽  
Vol 78 ◽  
pp. 169-183
Author(s):  
Aleksander Jakubowski
Keyword(s):  
Higher Education ◽  
Administrative Procedure ◽  
The Past ◽  
Legal Relation ◽  
The Law ◽  
Administrative Courts ◽  
The Right ◽  
Internal Character ◽  
The University

The question whether the new Law on Higher Education and Science allows to regulate resumption of studies by universities themselves, in the rules on studies, should be resolved positively. However, this is only under assumption that such rules and decisions made based on them have an internal character. Resumption of studies does not lead to entering into a new legal relation between a former student and the university, but it only causes that the past relation is being reinstated. Therefore, the decision on resumption is made outside the procedure regulated in the Code on administrative procedure and it also falls outside the control of administrative courts. De lege ferenda, resumption of studies should be regulated in the Law on Higher Education and Science to strengthen the right of persons applying for resumption. In particular, such regulation ought to require a decision on resumption of studies to have a form of an administrative decision.

scholarly journals Artykuł 145a § 1 ustawy — Prawo o postępowaniu przed sądami administracyjnymi jako podstawa do wydania wyroku przesądzającego merytorycznie o sposobie rozstrzygnięcia lub załatwienia sprawy administracyjnej

Prawo ◽  
2016 ◽  
Vol 320 ◽  
pp. 151-164 ◽  
Author(s):  
Karol Szczurek
Keyword(s):  
Public Administration ◽  
Specific Content ◽  
Frequent Application ◽  
Legitimate Interests ◽  
Administrative Act ◽  
The Law ◽  
Administrative Courts

Article 145a § 1 of the Law on ProceedingsBefore Administrative Courts as a basis for a judgmenton merits as to the disposal or settlementof an administrative caseThe publication deals with Art. 145a § 1 of the Law on Proceedings Before Administrative Courts, introduced with the amendment of 9 April 2015. Article 145a § 1 of the Law on Proceedings Before Administrative Courts gives the administrative courts a power to impose on public administration bodies an obligation to issue a decision or a resolution of a specific content in a set time. Hence, a judgment of an administrative court based on the new regulation has an indirect character of a decision on merits. Although the judgment does not substitute an administrative act, it offers binding requirements for the contents of the administrative act and a set date for its issuance.The aim of this publication is to analyse the prerequisites of applying the new regulation and the manner in which the new regulation has been applied by the administrative courts up to date. The analysis then turns to de lege lata conclusions. The considerations also touch upon the problem of compliance of the new regulation with Polish Constitution.In spite of some critical voices, the new regulation should be positively assessed in terms of its realisation of the rule of procedural economy and for safeguarding the individuals’ legitimate interests through speeding up the possibility of obtaining a substantive administrative decision. There is, however, a need for a more frequent application of the new regulation by administrative courts.

Sign in / Sign up

Export Citation Format

Share Document