administrative act
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De Jure ◽  
2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Mariya Danailova ◽  

Logorrhea (from Ancient Greek λόγος logos ‘word’ and ῥέω rheo ‘to flow’) is a communication disorder that causes excessive wordiness and repetitiveness which can lead to incoherence. The article justifies the assumption that, without legal guarantees, Article 301 of the Bulgarian Code of Administrative Procedure (CAP) could be a meaningless flow of words. When the administrative act is revoked after commencement of the enforcement, the administrative authority should restore the violated right within one month, or satisfy the injured party in another legal manner when this is possible. Insofar as there are no legal mechanisms to oblige the authority to perform its public duty, the person concerned is entitled only to compensation, which is not always an effective remedy. Based on the litigation, conclusions and recommendations are made for improving the restoration and compensation measures of Art. 301 of the CAP.


2021 ◽  
Vol 66 ◽  
pp. 147-153
Author(s):  
V.O. Kozhevnikov

The article considers the issues of administrative services provided by the bodies of the Antimonopoly Committee of Ukraine and other bodies of public administration in the field of application of the legislation on protection of economic competition. The range of subjects of public services in the field of application of the legislation on protection of economic competition to which it is offered to carry bodies of the Antimonopoly committee of Ukraine, the Cabinet of Ministers of Ukraine and the Ministry of Economy of Ukraine is defined. The list of services provided by the Antimonopoly Committee of Ukraine is determined. These include: 1) granting permission for concentration; 2) granting permission to coordinate actions; 3) issuance of additional copies of certified copies of decisions on issues provided for in part two of Article 34 of the Law of Ukraine "On Protection of Economic Competition"; 4) preliminary conclusions on the qualification of actions (Article 14 of the Law of Ukraine "On Protection of Economic Competition"); 5) preliminary conclusions on concentration, concerted actions. It is proposed to extend the provisions of the Law of Ukraine "On Administrative Services" to services provided by the Antimonopoly Committee of Ukraine insofar as it does not contradict the legislation on protection of economic competition. Proposals have been developed to amend the Regulations on the procedure for submitting applications to the Antimonopoly Committee of Ukraine for prior obtaining a permit for concentration of economic entities in terms of clarifying the subjects of application for a concentration permit. Administrative services of the Antimonopoly Committee of Ukraine are service activities of the Antimonopoly Committee of Ukraine defined by normative legal acts aimed at meeting the private needs (interests) of business entities in the field of legal relations arising in connection with the application of legislation on protection of economic competition. related to the protection of their legitimate rights and interests). The administrative service of the bodies of the Antimonopoly Committee of Ukraine is provided exclusively on the basis of the application of the relevant business entity. Based on the results of the administrative service, the Antimonopoly Committee of Ukraine provides the subject of the application with an administrative act (permit) or a document.


2021 ◽  
Vol 18 (2) ◽  
pp. 204-215
Author(s):  
A. D. Maile

This article provides an overview of the main provisions of German administrative procedural law. It outlines in a systematic way the particularities of administrative procedures and the possibilities for a citizen to seek administrative remedy. The essence of the basic principles of administrative procedural law as well as the particularities of temporary legal protection and the possibilities for an extrajudicial appeal against an administrative act are explained to the reader. The Author points out that administrative proceedings in Germany are, in a broad sense, any decision-making activity of a public administration body. According to the German Administrative Procedure Act, an administrative procedure in the sense of the law is an externally imposed activity of the administrative authorities that is aimed at verifying the conditions, preparing and issuing an administrative act or entering into a public-law contract. At the same time, the activities of a public administration body are not bound by a specific form, unless there are specific rules on the form of procedure. It is stated that current German administrative law distinguishes between an administrative act and a general order. The latter is also an administrative act, the range of addressees, however, is wider. An administrative act according to the law is any order, decision or other authoritative action of an administrative body aimed at regulating a single case in the field of public law and having direct legal consequences of an external nature. A general order is an administrative act, which is addressed to a certain or defined by general features, or which concerns the public-law properties of a thing or the use of it by the public. The author notes that an administrative act must be specific in content, justified and announced to the participants in the proceedings. As long as the act has not been declared, it is invalid. An administrative act is valid from the moment it is announced, unless it itself provides otherwise. It continues in force until it is revoked, cancelled, terminated by a deadline or for any other reason specified in the law. Based on the analysis, it is concluded that the lack of a law on administrative procedures in Russia is a negative indicator of the modern Russian administrative legal system.


2021 ◽  
Vol 18 (2) ◽  
pp. 228-242
Author(s):  
O. N. Sherstoboev

The issues of criteria for the nullity of administrative acts are considered, the ratio of an illegal and invalid act, as well as a null and void act, analyzed, the possibility of administrative discretion in determining an invalid administrative act is analyzed, the role of vague legal concepts when an administrative act is declared invalid is demonstrated. The Author uses a comparative legal method, including the analysis of the practice of Germany, Great Britain, South Africa, Canada, Japan, South Korea, Russia and other countries. Special attention is paid to the laws on administrative procedures adopted in the post-Soviet territory and the influence of the German doctrine on this process. It is concluded that for the continental legal order the most preferable way to formalize the criteria for the invalidity of an administrative act are laws on administrative procedures or their analogs, while in the common law states, legal doctrine and judicial practice are of great importance. At the same time, many countries avoid recognizing acts as null and void, preferring the construction of their voidability. This is related to ensuring the stability of public administration, the predictability of administrative activities, and the protection of legitimate expectations. In any case, the theory of the reality of the administrative act is prevailing, and nullity is rather viewed as an anomaly. Therefore, only acts that are adopted with the most significant violations, which do not allow talking about the fair consequences of their adoption, are considered invalid. The illegality of an act does not automatically entail its nullity. A similar trend can be traced in Russia, although individual norms of law and practice of courts indicate the possible formation of a doctrine of the invalidity of an administrative act in the Russian legal system. Insignificant acts do not give rise to consequences from the moment of their adoption, legally they do not exist, and nothing can generate anything. With this approach, the courts only fix the criterion of invalidity without a dispute about law. Insignificant acts should be distinguished from contested ones, the latter may turn out to be illegal, but for a number of reasons (for example, protection of trust) the fact of their existence is confirmed along with their consequences.


2021 ◽  
Vol 17 (2) ◽  
pp. 22-28
Author(s):  
D. Olejnik

The article considers the reasons for appealing an administrative act and enforce an obligation in court according to the law of the Federal Republic of Germany. In particular, the reasons for appealing of an administrative act is its iIllegality and the resulting violation of the plaintiff's rights. Herewith, an administrative act is legal (not unlawful), if it is based on a legal provision, authorizing administration to act this way, at its issuance the legal requirements of procedural norms (formal legality) and substantive law (material legality) were complied with. The reasons to enforce an administrative obligation are the illegality of the refusal to issue the required administrative act, as a result of which the rights of the plaintiff were violated and the case is prepared for making a decision.


Obiter ◽  
2021 ◽  
Vol 30 (2) ◽  
Author(s):  
Carli Botma ◽  
Adriaan van der Walt

This article is published in two parts. In the first part (published in this edition of Obiter) the authors establish the general principles relating to administrative review and consider the different forms of review. Thereafter CCMA arbitration award reviews are considered. As is characteristic of special statutory reviews the Labour Relations Act, 1995 (“the LRA”) makes specific provision for the review of CCMA arbitration awards. The grounds of review are presented in such a manner that it has the effect of limiting the ambit. The administrative nature of CCMA arbitrations is considered. It is pointed out that the courts regard the CCMA as organ of state andthat the rendering of an arbitration award is considered as the commission of an administrative act that is subject to the constitutional imperatives of the administrative justice right of the Constitution. The authors also establish that the courts have not interpreted the restrictive scope of section 145 of the LRA as falling foul of the constitutional right to administrative justice. Rather, the courts have reasoned that, when reading section 145 in light of the constitutional right to administrative justice, the alleged misconduct, grossirregularity, exceeding of powers or impropriety as the case may be need only be measured against the constitutional imperatives of the administrative justice right in order to ensure constitutional consistency. So construed, an arbitration award would be reviewable if the reviewing court is able to conclude that the commissioner has committed misconduct or a gross irregularity or has exceeded his powers in terms of section 145(2) of the LRA because the decision is not justifiable in terms of the reasons given. The award would, however, not be reviewable only because it is perceived to be unjustifiable per se; the justifiability must be attributed to one or moreof the statutory grounds of review found in section 145(2) of the LRA. In Part 2 of the article the effect of the judgment of the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2007 12 BLLR 1097 (CC) will be analysed as well as the application of the principles established in Sidumo in subsequent case law. Finally the reasonableness standard and private arbitration reviews will be considered. Part 2 will be published in the following edition of Obiter. 


2021 ◽  
Vol 10 (9) ◽  
pp. 586
Author(s):  
Pedro Molina Rodríguez-Navas ◽  
Narcisa Medranda Morales ◽  
Johamna Muñoz Lalinde

Transparency is a communicative process whose aim is to provide citizens with information that will promote their participation in public affairs. However, its application is often reduced to a legally stipulated administrative act. In contrast, this article sets out the principles, attributes and evidence of transparency from a communication perspective, taking into consideration that transparency is treated as a process through which recipients obtain, understand and use information. This study focuses on the transparency of local town councils, although most of the concepts could be applied at other levels of public administration. To establish this framework, the legislation and application of transparency in three countries (Spain, Ecuador and Colombia) was studied using the Infoparticipa method designed with a communication approach in mind. A comparative study was then carried out using methods designed in other disciplines. Through this approach, the benefits of transparency were categorized to define six principles—disclosure, strengthening, visibility, comprehensibility, dissemination and humanism—and eight attributes of transparent information: veracity, timeliness, accessibility, usability, intelligibility, universality, pluralism and plurality. For each attribute, the evidence of its application was determined. This framework clarifies the perspective of transparency for participation from a communication approach.


2021 ◽  
Vol 11 (3) ◽  
pp. 259-292
Author(s):  
A.F. VASILYEVA

Indirect judicial control over the legality of administrative acts within the framework of which the court considers civil law claim whilst evaluates the legality of an administrative act with a missed deadline of direct retrial, is one of the most pressing and unresolved problems of civil and administrative law interplay. The permissibility of indirect judicial control over legally binding administrative acts generates inter-branch conflicts, ‘divergent legal implications’ that have negative impact both on the citizen, when his conduct, permitted by an administrative procedure, entails civil legal sanctions, and on the administrative body, since the civil law practice is a means of “invasion” into its competence to assess the circumstances of the case and make decisions in a particular managerial situation1. The approach of not accepting the binding nature of an administrative act which has legal force, established in the Russian legal system for the court considering a civil case, is perceived as an axiom that does not require proof. However, looking at the problem of binding nature of an administrative act through the prism of the German concept of legal force of administrative acts allows us to question the validity and effectiveness of this axiom for modern civil and public circulation. In German legal system indirect control over the legality of legally binding administrative acts is not possible, such acts are considered obligatory for the courts, with the exception of acts that are null. Thus, the limits of indirect judicial control over the legality of administrative acts are placed in their legal force, and the very concept of the legal force of administrative acts must be built on the grounds of harmonization of the underlying interactive principles: legality, legal certainty, protection of trust.


2021 ◽  
pp. 65-68
Author(s):  
Allan Brewer-Carias

This chapter explains administrative procedure and judicial review in Latin America. Judicial review of administrative action has been constitutionalised in many Latin American countries, like Colombia, Costa Rica, Guatemala, Panama, Peru, Uruguay, and Venezuela, and has been the object of special laws regulating the jurisdiction. According to the Constitutions and to the laws regulating the contentious administrative jurisdiction in Latin America, all administrative provisions are subjected to judicial review as it is not possible for any administrative act to escape judicial control. Therefore, the principle applicable is the universal character of the judicial oversight of constitutionality and unlawfulness regarding regulations and administrative acts, which is exercised by the Courts without exception. In almost all Latin American countries, the rules of administrative procedure are regulated through special Administrative Procedure Lasw (APLs), which began to be sanctioned in 1972 (Argentina). In all cases where the courts find that a challenged administrative act infringes the fundamental rights of an individual or corporation, or does not meet the fundamental standards of administrative propriety and fairness, the courts of the contentious administrative jurisdiction in all Latin American countries have the power not only to annul the challenged act but, depending on the nature of the claim filed by the plaintiff, the courts can also award damages for the administrative action.


2021 ◽  
pp. 79-81
Author(s):  
Halyna Dovhan

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.


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