A PROPÓSITO DEL ORIGEN Y EVOLUCIÓN DEL RÉGIME ADMINISTRATIF

2010 ◽  
pp. 767-785
Author(s):  
JESÚS LEGUINA VILLA
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Public Rights ◽  
Statutory Power ◽  
Administrative Courts ◽  
Ancien Régime ◽  
Principle Of Legality

El Derecho Administrativo es un producto propio y específico del constitucionalismo nacido tras la ruptura revolucionaria con el Antiguo Régimen, que resultará profundamente condicionado por las circunstancias sociopolíticas del país, Francia, donde nació. El Régimen Administrativo del Estado de Derecho se conforma a partir del principio de legalidad, de la potestad reglamentaria, de las libertades públicas y los derechos públicos subjetivos, de la responsabilidad de la Administración y del control a través de la jurisdicción contencioso-administrativa. Administrazio Zuzenbidea konstituzionalismoaren berezko produktua espezifikoa da, Frantziako Iraultzak Erregimen Zaharrarekin apurtu ostean sortua eta herrialde horren egoera soziopolitikoak sakon baldintzatua. Zuzenbide Estatuaren Administrazio Araubideak osatzeko hauek guztiak hartzen dira abiapuntu: legezkotasun-printzipioa, arauzko ahala, askatasun publikoak eta eskubide publiko subjektiboak, Administrazioaren erantzukizuna eta administrazio-auziarekiko jurisdikzioaren bidez egiten den kontrola. Administrative Law is a product typical and specific of the constitutionalism born after the revolutionary break-off with the Ancien Regime, which was deeply conditioned by the sociopolitical circumstances of the State, France, where it was born. The Administrative Regime of the Rule of Law was made up from the point of view of the principle of legality, the statutory power, public freedoms and subjective public rights, the liability by the Administration and the review by means of the contentious administrative courts.

An Overview of Good Governance

2019 ◽  
pp. 15-24
Author(s):  
Henk Addink
Keyword(s):  
Rule Of Law ◽  
Good Governance ◽  
Administrative Law ◽  
The State ◽  
Institutional Framework ◽  
The Rule Of Law ◽  
Administrative Legislation ◽  
The Government

Good governance is needed because of legislative gaps, prevention of corruption, maladministration, and mismanagement, and fragmentation of administrative law norms. The concept of good governance has been developed in addition to aspects which can already be found in the rule of law and democracy concepts but are also related to the institutional framework of the government. The term ‘government’ is used for all the powers in the state; the administration is only one of these powers. These powers must fulfil certain norms, principles which sometimes are unwritten and developed by the judiciary or the ombudsman but more and more codified in the frame of the general (administrative) legislation. All the institutions of the government are involved in the development of these principles of good governance. There is not only a separation between the powers of the state, but more and more there are interactions between these powers in the development of principles of good governance and, hence, there is a balance between these principles. Therefore, there are different producers and sources of good governance.

scholarly journals The Principles of Administrative Law as a Prism for Assessing the Content of Normative and Legal Provisions: Opportunities for Identifying the Problems and Solutions

2019 ◽  
Vol 87 (4) ◽  
pp. 104-116
Author(s):  
V. O. Ivantsov
Keyword(s):  
Rule Of Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
The State ◽  
Charitable Organizations ◽  
The Rule Of Law ◽  
Legal Provisions ◽  
The Law ◽  
The Individual ◽  
Corruption Prevention

The author of the article assesses the content of administrative normative and legal acts (on the example of legal regulation of restrictions on receiving gifts) through the prism of modern understanding of the principles of administrative law, which made it possible to distinguish a number of problems for determining the content of some of them and to work out the ways to solve them, namely: 1) Having studied the norms of the laws of Ukraine “On Prevention of Corruption” and “On Charitable Activities and Charitable Organizations” through the prism of the principle of humanism and justice in the relations between the individual and the state, it is proved that the legal possibility in the sphere of legal relations in the sphere cannot be restricted (forbidden) humanism and charity; 2) an analysis of the law enforcement practice of implementing the prohibition on gift giving has often revealed a flagrant violation of the rule of law; emphasized that ensuring the legal certainty of the described ban can be ensured by revealing its content by the National Anti-Corruption Agency; 3) installed: – uncertainty about the specific characteristics of “allowed gifts”, which requires amendments to the Law of Ukraine “On Corruption Prevention” to exclude them or to provide clear explanations within the framework of the NACC Guidelines; – violation of the provisions of the Typical Anti-Corruption Program of a Legal Entity approved by the Decision of NAPC No. 75 dated from March 2, 2017 No. 75 on the principle of hierarchical highness of law, which requires amendments to them in accordance with the provisions of the Art. 23 of the Law of Ukraine "On Prevention of Corruption", which defines uniform rules for determining the amount of "allowed gift"; – the content of the concept of "gift" does not correspond to such an important element of the rule of law as "prohibition of discrimination and equality before the law", which requires amendments to the Law of Ukraine "On Prevention of Corruption" in the part of the correction of the concept of "gift" as such is bounded by the restriction of "family-private" relations not related to the performance of functions of the state or local self-government. As a result, it was found out that the principles of administrative law in order to improve the regulatory acts of the sphere of administrative and legal regulation are: 1) as a criterion for assessing the content of provisions of regulatory legal acts, resulting in the isolation of their shortcomings; 2) legal bases for elaboration of amendments and additions to administrative normative legal acts.

scholarly journals Zasada praworządności wyznacznikiem kontroli działań administracji publicznej realizowanej przez prokuratora w ramach postępowania administracyjnego

2019 ◽  
Vol 16 (1 (3)) ◽  
pp. 19-36
Author(s):  
Beata Kozicka ◽  
Ewa Pierzchała
Keyword(s):  
Public Administration ◽  
Rule Of Law ◽  
Good Governance ◽  
The State ◽  
Judicial Power ◽  
The Rule Of Law ◽  
Separate Part ◽  
Administrative Courts ◽  
Court Proceedings ◽  
The Republic

Opus iustitiae PAX – the properly shaped dimension of justice is a guarantee of peaceful – not based on a conflict and violence – relations between citizens and the state. These words fully reflect the leading thought of this study. It is the concern for a good law and a state governed by the rule of law, which lies at the foundation of actions taken within the scope of legal means by the Prosecutor’s Office that – as the “custodian of law” – is entitled to in the sphere of control over administration. Administrative courts execute justice as a separate part of judicial power. Justice and law are conditions for an effective state, good governance and social peace, which have accompanied us for centuries. Administrative courts uphold the principle of equality before the law, which is regulated by Art. 21, par. 1 of the Constitution of the Republic of Poland. Since it is administrative courts which – by performing tasks of control over the activity of public administration – become the guarantee of realization of the above-mentioned principle, their position and range of cognition in the situation of launching administrative-court proceedings by the Prosecutor were presented in the work.

Artificial intelligence, legal system and state functions

2020 ◽  
Author(s):  
Aleksandr Bratko
Keyword(s):  
Artificial Intelligence ◽  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
Point Of View ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Methodological Problems ◽  
Theory Of Law ◽  
State Functions

The monograph deals with methodological problems of embedding artificial intelligence in the legal system taking into account the laws of society. Describes the properties of the rule of law as a Microsystem in subsystems of law and methods of its fixation in the system of law and logic of legal norms. Is proposed and substantiated the idea of creating specifically for artificial intelligence, separate and distinct, unambiguous normative system, parallel to the principal branches of law is built on the logic of the four-membered structure of legal norms. Briefly discusses some of the theory of law as an instrument of methodology of modelling of the legal system and its semantic codes in order to function properly an artificial intelligence. The ways of application of artificial intelligence in the functioning of the state. For students and teachers and all those interested in issues of artificial intelligence from the point of view of law.

scholarly journals Application of Administrative Law in the Time of Reforms in the Light of the Scope of Judicial Review in Hungary

2020 ◽  
Vol 29 (3) ◽  
pp. 101
Author(s):  
István Hoffman
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
Paradigm Shift ◽  
Administrative Law ◽  
The State ◽  
The Rule Of Law ◽  
Legal Remedies ◽  
Review Model ◽  
The Impact

<p class="Default">The Hungarian legal system and especially the administrative law is in the state of permanent change. This constantly transforming environment is a challenge for the rule of law. Every significant field of administrative law is impacted by these changes – even the judicial review model of the administrative decisions. The author analyzes the impact of these changes – especially from the last three years – on the application of administrative law. The issues raised in the article are focused on the transformation of the procedural rules, in particular on the impact of the new Act I of 2017 – Code of Administrative Court Procedure and its amendment in 2019. Two major institutions are analyzed further. First, the work analyzes the impact of the reform on the system of legal remedies in the administrative law, i.e. the reduction of the intra-administration remedies, the administrative appeal. Secondly, the extent of the judicial review was examined, in particular debates, codifications and amendments of the cassation and reformatory jurisdiction of the courts. The courts are currently the major interpreter of administrative law, whose change can be interpreted as a paradigm shift of the approach of the application of administrative law.</p>

scholarly journals DERIVING FROM THE BASIC LEGAL AND DEMOCRATIC RULE OF THE STATE AND THE RIGHT OF THE PERSON IN PRINCIPLE TO CARRY OUT MATERIAL-LEGAL CLAIMS ONLY IN PART AS AN EXPRESSION OF A LEGAL AND DEMOCRATIC STATE

2021 ◽  
pp. 57-64
Author(s):  
Reinis Odiņš
Keyword(s):  
Rule Of Law ◽  
The State ◽  
Point Of View ◽  
Normal Theory ◽  
The Rule Of Law ◽  
Democratic State ◽  
Democratic Rule ◽  
Private Autonomy ◽  
The Right ◽  
Democratic Norms

In the article, the author looks at the origin of the principle of the private autonomy from the point of view of the basic normal theory, stating that the basic legal and democratic norms of the country are derived from the rule of law. Moreover, the private autonomy also includes, in principle, the right of a person to exercise the right to carry out material legal claims, even in part, if the person so wishes.

scholarly journals LAW POLITIC OF ADMINISTRATIVE COURT JUDICATURE IN INDONEESIA

2019 ◽  
Vol 3 (1) ◽  
pp. 47
Author(s):  
Wahyu Mukti Beny Setiyawan ◽  
Fitriya Desi Wulandari
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal System ◽  
The State ◽  
The Rule Of Law ◽  
The People ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Justice

Law politic present at the point of encounter between living realism and the demands ofidealism. Political law concerns on an ideal or hope, then there is a legal vision that is setin advance, then the form and content of the law are built to realize that vision. Theurgency existence of administrative justice in realizing the rule of law encourages thegovernment to establish a legal system in the field of administrative justice through theestablishment of Law Number 51986 about State Administrative Courts, which is thefoundation for the establishment of a State Administrative Court in Indonesia. In theexplanation of Law Number 5 of 1986 stated that the State Administrative Court was heldin order to provide protection to the people seeking justice, which felt themselves to beharmed by a State Administrative Decision. Principly, a country is expected to giveprotection for the human rights of its citizens

scholarly journals Impact of the Rule of Law as a Fundamental Public Governance Principle on Administrative Law Interpretation in the Czech Republic

2019 ◽  
Vol 17 (2) ◽  
pp. 117-140
Author(s):  
Jana Janderová
Keyword(s):  
Czech Republic ◽  
Rule Of Law ◽  
Comparative Method ◽  
Administrative Law ◽  
Constitutional Court ◽  
General Tendency ◽  
Public Governance ◽  
The Czech Republic ◽  
The Rule Of Law ◽  
Administrative Courts

The rule of law is a fundamental principle and the cornerstone of Western democracies and their public governance. Its underlying value is the idea of constraint of governmental power. The rule of law principle acts as an interpretative concept in most contexts of the exercise of public powers in the EU and its Member States, with the courts exercising supervision over the activities of administrative bodies. However, the teleological argumentation through fundamental principles is not inherent to all Central and Eastern European judicial and administrative bodies, given the long tradition of formalistic approach in most of them. The article analyses whether the approach has changed during the past thirty years and to which level the principle of the rule of law is used for interpretation of administrative law provisions by courts in the Czech Republic. Since the case law of the Czech Constitutional Court and the Czech Supreme Administrative Court is based on the arguments of legality and proportionality as the key elements of the rule of law, their cases were analysed using a comparative method. The article identifies a general tendency in legally difficult cases to move from purely linguistic interpretation to interpretation through values, including the rule of law. Most of the analysed cases reveal that the formalistic interpretation was strongly criticised by both the Constitutional and the Supreme Administrative courts. However, slight differences in their perception of the principles of legality and proportionality were discerned, namely in the debate on the intensity of control exercised by administrative courts over factual and discretionary decisions by administrative authorities. Nevertheless, these differences produce beneficial effects, as both principles continue being developed thanks to the exchange of opinions between the courts. Further research could be conducted for similar countries in the region.

scholarly journals Administracinė teisė: interesų veiksnys įstatymų leidyboje

Teisė ◽  
2010 ◽  
Vol 74 ◽  
pp. 33-45
Author(s):  
Arvydas Andruškevičius
Keyword(s):  
Rule Of Law ◽  
Administrative Law ◽  
Point Of View ◽  
Public Interests ◽  
The Rule Of Law ◽  
Positive Law ◽  
Administrative Legislation ◽  
The Social ◽  
Social Interests ◽  
The Creation

Straipsnyje nagrinėjama socialinių interesų įtaka administracinės srities įstatymų leidybai. Administra­cinės teisėdaros kertinis principas yra optimalus asmens ir visuomenės interesų derinimas: tai prielaida kurti socialiniu požiūriu teisingesnę pozityvinę teisę, atitinkančią Konstitucijos preambulėje skelbiamą teisinės valstybės siekį. Teigiama, kad interesų pusiausvyros įtvirtinimas įstatymuose gali keistis priklau­somai nuo valstybės ekonominės raidos ypatumų. Nurodomos ir kai kurios subjektyvios priežastys, kodėl interesų derinimas administracinėje teisėje tam tikrais atvejais būna problemiškas. In this article the influence of social interests upon administrative legislation is investigated. The author states that the essential imperative in the creation of administrative law is an optimal coordi­nation of private needs and public interests. This is a precondition to create a fairer – from the social point of view – positive law, corresponding to the striving for a state under the rule of law declared in the Preamble to the Constitution. The article also pointes out some subjective reasons why the coordination of interests in administrative law is sometimes problematic.

scholarly journals THE RULE OF LAW IN INDIAN ADMINISTRATIVE LAW VERSUS THE PRINCIPLE OF LEGALITY IN SOUTH AFRICAN ADMINISTRATIVE LAW: SOME OBSERVATIONS

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Radley Henrico
Keyword(s):  
South Africa ◽  
South African ◽  
Rule Of Law ◽  
Administrative Law ◽  
Indian Constitution ◽  
The Rule Of Law ◽  
Life Assurance ◽  
Equivalent Expression ◽  
The Republic ◽  
Principle Of Legality

The rule of law is expressly mentioned in the Constitution of the Republic of South Africa, 1996. The principle of legality has flourished in South African administrative law since its recognition and reception into our law in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). The Indian Constitution does not contain an equivalent expression of the rule of law. Notably, how persons and societies in India govern themselves is premised upon beliefs akin to the rule of law. Moreover, Indian administrative law has been strongly influenced by the theory of the rule of law as advocated by Dicey. Whilst Indian administrative law relies heavily upon the rule of law to judicially review conduct that is capricious, South African administrative law has come to rely on the incident of the rule of law, namely the principle of legality. This contribution inspects some of the reasons why the rule of law is heavily relied on in Indian administrative law – where it essentially mirrors the South African administrative law principle of legality. This contribution also suggests reasons as to why the principle of legality is so prevalent in South African administrative law as opposed to merely the rule of law as employed by the Indian courts in Indian administrative law.

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