Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.08
Oleg Schirinsky
In Belarus, the national doctrine of administrative law has been oriented to a large extent towards the Soviet and modern Russian legal traditions, albeit with some distinct contextual features. In this work, we review the positions of some of the most authoritative scholars, and make a number of summative judgements and conclusions. The primary aim of administrative law is to provide and create a regulatory framework for the exercise by the government authorities of their mandate and powers. The objective of administrative law is to govern and regulate the interactions between the executive power and other legal subjects in the performance of its functions. In the Belarusian doctrine, the predominant position of most scholars is that the scope of administrative law should include the administrative legal relations arising in the course of the exercise by the public administration bodies of their administrative functions, including of regulatory mandates towards external bodies, and in relation to the enjoyment by the citizens of their rights and liberties. In Belarus, the system of administrative law is customarily understood as an ordered framework composed of institutions, norms and domains, which may be divided into four sections. The first section encompasses the institutions that determine the legal status in the area of public administration of the citizen, of state bodies, of non-governmental organizations and of civil servants, it also incorporate the institutions that exercise control over the subjects of administrative law. The second section encompasses the regulations that govern liability under administrative law. The third section incorporates the norms of administrative procedure. The fourth section includes provisions that constitute the administrative legal framework for the management of the economy, socio-cultural and other spheres. Each section is comprised of the relevant legal institutions and sectors. The greatest challenge for administrative law of in Belarus seems to be the definition of the administrative procedure, which has not changed since the Soviet period. The alternative propositions presented in this work are of a purely theoretical character and should eventually be superseded by a legal definition, which views it as a distinct type of legal procedure governed by the norms of administrative procedure law grounded mainly in the Code of Execution Procedure for administrative torts. The legal term “administrative procedure” in Republic of Belarus is still identical to the concepts “administrative tort procedure” or “procedure for the hearing of administrative tort cases”. The main method of this study is that of integrated comparative analysis, with elements of the historical and formal-logical method. As a part of a comprehensive study in administrative law in the former Soviet Union, this work is intended to make a contribution to academic debate, by deepening and broadening its scope.
{"title":"EVOLUTION OF ADMINISTRATIVE LAW AND ADMINISTRATIVE AND LEGAL DOCTRINE IN THE REPUBLIC OF BELARUS SINCE INDEPENDENCE","authors":"Oleg Schirinsky","doi":"10.17721/2227-796x.2019.2.08","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.08","url":null,"abstract":"In Belarus, the national doctrine of administrative law has been oriented to a large extent towards the Soviet and modern Russian legal traditions, albeit with some distinct contextual features. In this work, we review the positions of some of the most authoritative scholars, and make a number of summative judgements and conclusions. The primary aim of administrative law is to provide and create a regulatory framework for the exercise by the government authorities of their mandate and powers. The objective of administrative law is to govern and regulate the interactions between the executive power and other legal subjects in the performance of its functions. In the Belarusian doctrine, the predominant position of most scholars is that the scope of administrative law should include the administrative legal relations arising in the course of the exercise by the public administration bodies of their administrative functions, including of regulatory mandates towards external bodies, and in relation to the enjoyment by the citizens of their rights and liberties. In Belarus, the system of administrative law is customarily understood as an ordered framework composed of institutions, norms and domains, which may be divided into four sections. The first section encompasses the institutions that determine the legal status in the area of public administration of the citizen, of state bodies, of non-governmental organizations and of civil servants, it also incorporate the institutions that exercise control over the subjects of administrative law. The second section encompasses the regulations that govern liability under administrative law. The third section incorporates the norms of administrative procedure. The fourth section includes provisions that constitute the administrative legal framework for the management of the economy, socio-cultural and other spheres. Each section is comprised of the relevant legal institutions and sectors. The greatest challenge for administrative law of in Belarus seems to be the definition of the administrative procedure, which has not changed since the Soviet period. The alternative propositions presented in this work are of a purely theoretical character and should eventually be superseded by a legal definition, which views it as a distinct type of legal procedure governed by the norms of administrative procedure law grounded mainly in the Code of Execution Procedure for administrative torts. The legal term “administrative procedure” in Republic of Belarus is still identical to the concepts “administrative tort procedure” or “procedure for the hearing of administrative tort cases”. The main method of this study is that of integrated comparative analysis, with elements of the historical and formal-logical method. As a part of a comprehensive study in administrative law in the former Soviet Union, this work is intended to make a contribution to academic debate, by deepening and broadening its scope.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82345082","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.3.09
K. Kravchenko, B. Schloer
This article presents a decision of the German Federal Court of Justice dealing with the question, whether life can be considered as damage which entitles to claim compensation of non-pecuniary and pecuniary damage. The question concerns the case of a person, whose state of health does not permit any communication; this person was kept alive by medical treatment, even if the person suffered from many diseases and it was evident, that the treatment will only shift the dead ahead. The court referred to the Constitution, dealing with the question, whether life can be considered in civil law as a damage. The decision and the background will be presented as well as the two previous decisions and a comparative description of the legal questions according German and Ukrainian Law. The purpose of article is to present a decision of the German Federal Court of Justice, which – as the Court states – deals with an unprecedented issue. Due to the fact, that situations, which were the background of the Court’s decision have no national limits, it is worthto present this topic also for a professional public outside Germany. The article is based on a method of comparative analysis of constitutional and civil law.The presentation of a Court’s decision and the comparative legal background has logically only the result of information for further discussion. However, the comparative presentation shows parallels on the level of the functions of rights and freedoms in a Constitution: they have the function to protect the individual against the interference of the state. But the rights and freedoms also create a system of values on the level of constitutional law which has to be considered in all spheres of national law – also in relations between private persons ruled by civil law.
{"title":"LIFE AS DAMAGE: COMPENSATION OF NON-PECUNIARY DAMAGE FOR STAYING ALIVE (THE INTERPRETATION OF CIVIL LAW IN THE LIGHT OF THE CONSTITUTION)","authors":"K. Kravchenko, B. Schloer","doi":"10.17721/2227-796x.2019.3.09","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.3.09","url":null,"abstract":"This article presents a decision of the German Federal Court of Justice dealing with the question, whether life can be considered as damage which entitles to claim compensation of non-pecuniary and pecuniary damage. The question concerns the case of a person, whose state of health does not permit any communication; this person was kept alive by medical treatment, even if the person suffered from many diseases and it was evident, that the treatment will only shift the dead ahead. The court referred to the Constitution, dealing with the question, whether life can be considered in civil law as a damage. The decision and the background will be presented as well as the two previous decisions and a comparative description of the legal questions according German and Ukrainian Law. The purpose of article is to present a decision of the German Federal Court of Justice, which – as the Court states – deals with an unprecedented issue. Due to the fact, that situations, which were the background of the Court’s decision have no national limits, it is worthto present this topic also for a professional public outside Germany. The article is based on a method of comparative analysis of constitutional and civil law.The presentation of a Court’s decision and the comparative legal background has logically only the result of information for further discussion. However, the comparative presentation shows parallels on the level of the functions of rights and freedoms in a Constitution: they have the function to protect the individual against the interference of the state. But the rights and freedoms also create a system of values on the level of constitutional law which has to be considered in all spheres of national law – also in relations between private persons ruled by civil law.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80071365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.09
Kristine Kore-Perkone
An administrative act is the main concept and instrument of administrative procedure. Despite the availability of other forms of the performance of public administration (for example, practical step, public law agreement, legislative action etc.), an administrative act is considered as an activity in classic form. Consequently, as a rule, the concept of an administrative act is analysed more frequently in the Latvian administrative judicial practice and legal literature. The article provides an overview of the main characteristics of administrative acts from the perspective of Administrative Procedure Law in Latvia. In the article, the author elaborates on several main characteristics of administrative acts from the perspective of judicial practice and Latvian doctrine. The author also undertakes а comparative analysis between the Latvian Administrative Procedure Law and the newly adopted Law on Administrative Activities and Administrative Procedures of the Kyrgyz Republic. From the above, it follows that the positive part of the definition of an administrative act in the Administrative Procedure Law of Latvia is the same as in the Law of the Kyrgyz Republic. Thus, both laws provide for similar features that a decision must have to be recognized as an administrative act. It is noted that the Administrative Procedure Law of Latvia includes an exception to the general principle that an interim decision is not an administrative act, apart from cases when the decision itself substantially affects the rights or legal interests of a person or substantially limits them. The definition of an administrative act, which is stipulated by the Law of the Kyrgyz Republic “On Administrative Activity and Administrative Procedures”, does not indicate that an administrative act is not an interim or procedural decision. The above does not mean that even now in Kyrgyzstan in order to recognize the decision as an administrative act, there must be no features of a final character. The jurisdiction of administrative offenses cases was changed from the jurisdiction of administrative courts to the courts of criminal jurisdiction. Consequently, the competence of administrative cases doesn’t involve considering administrative offences cases.
{"title":"MAIN CHARACTERISTICS OF ADMINISTRATIVE ACTS FROM THE PERSPECTIVE OF ADMINISTRATIVE PROCEDURE LAW OF LATVIA AND JUDICIAL PRACTICE","authors":"Kristine Kore-Perkone","doi":"10.17721/2227-796x.2019.2.09","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.09","url":null,"abstract":"An administrative act is the main concept and instrument of administrative procedure. Despite the availability of other forms of the performance of public administration (for example, practical step, public law agreement, legislative action etc.), an administrative act is considered as an activity in classic form. Consequently, as a rule, the concept of an administrative act is analysed more frequently in the Latvian administrative judicial practice and legal literature. The article provides an overview of the main characteristics of administrative acts from the perspective of Administrative Procedure Law in Latvia. In the article, the author elaborates on several main characteristics of administrative acts from the perspective of judicial practice and Latvian doctrine. The author also undertakes а comparative analysis between the Latvian Administrative Procedure Law and the newly adopted Law on Administrative Activities and Administrative Procedures of the Kyrgyz Republic. From the above, it follows that the positive part of the definition of an administrative act in the Administrative Procedure Law of Latvia is the same as in the Law of the Kyrgyz Republic. Thus, both laws provide for similar features that a decision must have to be recognized as an administrative act. It is noted that the Administrative Procedure Law of Latvia includes an exception to the general principle that an interim decision is not an administrative act, apart from cases when the decision itself substantially affects the rights or legal interests of a person or substantially limits them. The definition of an administrative act, which is stipulated by the Law of the Kyrgyz Republic “On Administrative Activity and Administrative Procedures”, does not indicate that an administrative act is not an interim or procedural decision. The above does not mean that even now in Kyrgyzstan in order to recognize the decision as an administrative act, there must be no features of a final character. The jurisdiction of administrative offenses cases was changed from the jurisdiction of administrative courts to the courts of criminal jurisdiction. Consequently, the competence of administrative cases doesn’t involve considering administrative offences cases.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86655624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.04
R. Khandanian
The author of this study has studied in details the problems of the formation and development of administrative law, administrative and procedure law, administration and administrative doctrine in the Republic of Armenia (Khandanian, 2019). The relevance of the research. The integrated institution of systemic protection of individual rights and freedoms became a part of administrative and legal regulation’s mechanism in the areas of administration and administrative procedure after the amendments to the Constitution of the Republic of Armenia (December 6, 2015), which established the legal protection of individual rights and freedoms as a priority (the Art. 3 and Chapter 2 of the Constitution of the Republic of Armenia). The national science of administrative law at present time, is undergoing a rethinking, updating and replenishment of the conceptual apparatus. This process is associated with changes in the economic and legal systems of the Armenian society. The tasks related to the formation of the civil society and legal state in Armenia make it necessary to take a fresh look at many administrative and legal concepts that have become customary with regard to their compliance with the modern stage of development of administrative law and the science of administrative law of the Republic of Armenia. The theory of administrative law, which has the status of fundamental science in the system of national jurisprudence, faces complex challenges – revising and rethinking the scope of such fundamental concepts as legal personality issues in administrative law, as well as the concepts and content of administration, administrative and legal acts, the purpose and objectives of administrative procedure, etc. Objective of the research. The objective of the research is to develop the basic provisions of the scientific concept of modern administrative law and procedure corresponding to what happened in Armenian society. Besides, the present study is aimed at a comprehensive, interrelated study of theoretical problems of administrative law and procedure in the context of the reforms carried out in our country, the transfer of legal theory and practice into a qualitatively new status. Research method. The methodological basis of the research consists of the provisions of modern scientific methodology, the latest tools and methods of the theory of administrative law and other branches of law. While working on the topic the author has focused on the results of the research of national and international theorists and practitioners working in the areas of public administration and administrative procedure. The systematic approach to the problems of administrative law made it possible to conduct a thorough analysis of the attributes of administrative law and procedure. The author of the work has also used the methods of scientific cognition, logical methods of analysis, synthesis, generalization, comparison, abstraction. According to the author of the resear
{"title":"PROBLEMS OF THE DEVELOPMENT OF ADMINISTRATIVE LAW AND ADMINISTRATIVE AND LEGAL DOCTRINE IN THE REPUBLIC OF ARMENIA (CONCEPT AND SUBJECT MATTER OF ADMINISTRATIVE LAW, ADMINISTRATIVE LAW WITHIN THE SYSTEM OF PUBLIC LAW, THE SYSTEM AND SCIENCE OF ADMINISTRAT","authors":"R. Khandanian","doi":"10.17721/2227-796x.2019.2.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.04","url":null,"abstract":"The author of this study has studied in details the problems of the formation and development of administrative law, administrative and procedure law, administration and administrative doctrine in the Republic of Armenia (Khandanian, 2019). The relevance of the research. The integrated institution of systemic protection of individual rights and freedoms became a part of administrative and legal regulation’s mechanism in the areas of administration and administrative procedure after the amendments to the Constitution of the Republic of Armenia (December 6, 2015), which established the legal protection of individual rights and freedoms as a priority (the Art. 3 and Chapter 2 of the Constitution of the Republic of Armenia). The national science of administrative law at present time, is undergoing a rethinking, updating and replenishment of the conceptual apparatus. This process is associated with changes in the economic and legal systems of the Armenian society. The tasks related to the formation of the civil society and legal state in Armenia make it necessary to take a fresh look at many administrative and legal concepts that have become customary with regard to their compliance with the modern stage of development of administrative law and the science of administrative law of the Republic of Armenia. The theory of administrative law, which has the status of fundamental science in the system of national jurisprudence, faces complex challenges – revising and rethinking the scope of such fundamental concepts as legal personality issues in administrative law, as well as the concepts and content of administration, administrative and legal acts, the purpose and objectives of administrative procedure, etc. Objective of the research. The objective of the research is to develop the basic provisions of the scientific concept of modern administrative law and procedure corresponding to what happened in Armenian society. Besides, the present study is aimed at a comprehensive, interrelated study of theoretical problems of administrative law and procedure in the context of the reforms carried out in our country, the transfer of legal theory and practice into a qualitatively new status. Research method. The methodological basis of the research consists of the provisions of modern scientific methodology, the latest tools and methods of the theory of administrative law and other branches of law. While working on the topic the author has focused on the results of the research of national and international theorists and practitioners working in the areas of public administration and administrative procedure. The systematic approach to the problems of administrative law made it possible to conduct a thorough analysis of the attributes of administrative law and procedure. The author of the work has also used the methods of scientific cognition, logical methods of analysis, synthesis, generalization, comparison, abstraction. According to the author of the resear","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87454147","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.03
Ketevan Tskhadadze
Purpose. In 1999 the adoption of the General Administrative Code and Administrative Procedure Code in Georgia gave basis for creation of the new administrative law, since before the entry into force of the above-mentioned codes, Georgia had no tradition of the administrative law and, hence, no practice of the administrative justice. In Georgia being part of the Soviet Union, and in the Soviet Union overall, the administrative law did not exist with the understanding that is regulated by the modern administrative law. The communist doctrine of the administrative law radically differs from the modern administrative law because in those times the administrative legislation was mainly defining the citizens’ obligations before the administration, rather than ensuring citizens’ rights and protection of their interests. Methods. Therefore, the article discusses development stages of the administrative law, the path gone through by the administrative law starting from the formulation until present time, also the Soviet heritage and its influence on the development of the administrative law is discussed, along with the influence of the European reception and establishment within the Georgian legislation, the core factors are analyzed, which caused the necessity of the creation of new administrative law. Results. The significant part in the article is devoted to the discussion of the subject of administrative law and system of administrative law on the example of the Georgian administrative law. The core elements of the implementation of public administration are discussed, the notion of the administrative body, forms of activity of the administrative body and basic principles that are characteristic to the Georgian administrative law. Conclusions. In this regard, the important place is given to particularities of the administrative proceeding and judicial process in Georgia, namely, so called “prejudicial” rule of appealing within the administrative body, suspensive effect of the administrative appeal, principles of disposition and inquisition in the administrative process, as well as the institute of the amicus curiae is discussed, as a particularity of the Georgian administrative justice.
{"title":"DEVELOPMENT OF THE ADMINISTRATIVE LAW IN GEORGIA","authors":"Ketevan Tskhadadze","doi":"10.17721/2227-796x.2019.2.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.03","url":null,"abstract":"Purpose. In 1999 the adoption of the General Administrative Code and Administrative Procedure Code in Georgia gave basis for creation of the new administrative law, since before the entry into force of the above-mentioned codes, Georgia had no tradition of the administrative law and, hence, no practice of the administrative justice. In Georgia being part of the Soviet Union, and in the Soviet Union overall, the administrative law did not exist with the understanding that is regulated by the modern administrative law. The communist doctrine of the administrative law radically differs from the modern administrative law because in those times the administrative legislation was mainly defining the citizens’ obligations before the administration, rather than ensuring citizens’ rights and protection of their interests. Methods. Therefore, the article discusses development stages of the administrative law, the path gone through by the administrative law starting from the formulation until present time, also the Soviet heritage and its influence on the development of the administrative law is discussed, along with the influence of the European reception and establishment within the Georgian legislation, the core factors are analyzed, which caused the necessity of the creation of new administrative law. Results. The significant part in the article is devoted to the discussion of the subject of administrative law and system of administrative law on the example of the Georgian administrative law. The core elements of the implementation of public administration are discussed, the notion of the administrative body, forms of activity of the administrative body and basic principles that are characteristic to the Georgian administrative law. Conclusions. In this regard, the important place is given to particularities of the administrative proceeding and judicial process in Georgia, namely, so called “prejudicial” rule of appealing within the administrative body, suspensive effect of the administrative appeal, principles of disposition and inquisition in the administrative process, as well as the institute of the amicus curiae is discussed, as a particularity of the Georgian administrative justice.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"21 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89342163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796X.2019.1.04
A. Barikova
{"title":"Court rulings impact on electronic communications law systematization","authors":"A. Barikova","doi":"10.17721/2227-796X.2019.1.04","DOIUrl":"https://doi.org/10.17721/2227-796X.2019.1.04","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"26 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88619843","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.4.10
Eglė Bilevičiūtė, Vaidas Milius
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 knowledg
{"title":"NON-JUDICIAL MEDIATION IN THE LITHUANIAN ADMINISTRATIVE PROCESS: CURRENT ISSUES","authors":"Eglė Bilevičiūtė, Vaidas Milius","doi":"10.17721/2227-796x.2019.4.10","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.10","url":null,"abstract":"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 knowledg","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"130 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76150831","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.4.01
Peter Chvosta
Purpose. The article is devoted to the legal figure of subjective public right in the context of legal protection in administrative matters. Methods. Based on the historical development of administrative jurisdiction in Austria and Germany in the 19th century, the function of the subjective public right is discussed in more detail: When the legislator grants citizens subjective public rights (and thus enforceable claims against the administration), the citizen can assert his or her individual interests before the courts by means of a right of defence against the state. At the same time, this results in an external legal control of the administration (compared to a mere internal administrative control by way of disciplinary measures) and thus promotes the rule of law of administrative action, which is in the public interest. Results. By pursuing his subjective public right, the citizen acting in his own interest indirectly contributes to the correct enforcement of the law. In a sense, he acts as an assistant to the public interest. The granting of a subjective public right also limits the group of persons who can take action against an administrative act, since otherwise anyone could challenge an administrative act. If the legislator has not expressly stipulated in the law which persons are entitled to a subjective public right in which respect, the determination of subjective public rights can be difficult in individual cases: When the law provides for a permit subject to certain conditions, the addressee of an administrative act is necessarily entitled to obtain a permit if the conditions required by law are met. The question is more complex in the case of persons who are not the addressee of an administrative act but who are affected by its effects. In this case, it must be determined by way of interpretation whether the legal provisions whose violation the citizen claims to have violated were passed not only to protect public interests but also, at least, in the interests of individual persons. Only then is there also a subjective public right of the individual to compliance with this provision. Conclusions. The legislator can avoid difficulties of interpretation by means of clear rules on the granting of subjective public rights. In particularly important administrative matters (e.g. approval of infrastructure projects), where the granting of subjective public rights is not sufficient to ensure judicial control of administrative acts, a larger group of persons can be granted party status.
{"title":"IN SEARCH OF THE SUBJECTIVE PUBLIC LAW: CONDITIONS FOR PARTICIPATION IN THE ADMINISTRATIVE PROCEDURE","authors":"Peter Chvosta","doi":"10.17721/2227-796x.2019.4.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.01","url":null,"abstract":"Purpose. The article is devoted to the legal figure of subjective public right in the context of legal protection in administrative matters. Methods. Based on the historical development of administrative jurisdiction in Austria and Germany in the 19th century, the function of the subjective public right is discussed in more detail: When the legislator grants citizens subjective public rights (and thus enforceable claims against the administration), the citizen can assert his or her individual interests before the courts by means of a right of defence against the state. At the same time, this results in an external legal control of the administration (compared to a mere internal administrative control by way of disciplinary measures) and thus promotes the rule of law of administrative action, which is in the public interest. Results. By pursuing his subjective public right, the citizen acting in his own interest indirectly contributes to the correct enforcement of the law. In a sense, he acts as an assistant to the public interest. The granting of a subjective public right also limits the group of persons who can take action against an administrative act, since otherwise anyone could challenge an administrative act. If the legislator has not expressly stipulated in the law which persons are entitled to a subjective public right in which respect, the determination of subjective public rights can be difficult in individual cases: When the law provides for a permit subject to certain conditions, the addressee of an administrative act is necessarily entitled to obtain a permit if the conditions required by law are met. The question is more complex in the case of persons who are not the addressee of an administrative act but who are affected by its effects. In this case, it must be determined by way of interpretation whether the legal provisions whose violation the citizen claims to have violated were passed not only to protect public interests but also, at least, in the interests of individual persons. Only then is there also a subjective public right of the individual to compliance with this provision. Conclusions. The legislator can avoid difficulties of interpretation by means of clear rules on the granting of subjective public rights. In particularly important administrative matters (e.g. approval of infrastructure projects), where the granting of subjective public rights is not sufficient to ensure judicial control of administrative acts, a larger group of persons can be granted party status.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91453075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.06
Estanislao Arana García
Purpose. The aim of this paper is to analyse the activity of the European agencies as a mechanism of control prior to the judicial review. This procedure is carried out by independent and impartial administrative tribunals. This model supposes to create specialized administrative organs that solve conflicts previous to the judicial procedure. The “agencies model” is mainly used in western countries with legal Anglo-Saxon reminiscences. In this paper we analyze the importance of these agencies and its possibilities for improvement in the near future. Method. To achieve this goal it is necessary to: 1) analysis the creative solutions of the agencies courts; 2) verify the performance of agencies through the information provided by themselves; 3) discuss the judicial decisions from a scientific perspective. This process has been implemented through direct contact with experts and professional actively involved at these European administrative courts. Results. EU law is haphazardly creating a system of administrative review that is in many cases a pre-condition to judicial review. This system is most evidently manifesting itself in the application of EU law by administrative agencies. For this purpose, some of the EU’s most important agencies have created specialised bodies known as boards of appeal. These objective and independent bodies have the power to review the decisions of the agency they form part on based on both questions of law and fact. The paper aims to establish a critical vision of the role that new judicial forms are developing and the importance of to reach a specialized criterion for solving technically increasingly complex issues. Conclusions. The board-of-appeal model has proven a successful one as it offers parties a low-cost and effective way of having their complaints resolved without having to go to the European Union Court of Justice. Lastly, there appears to be a need for the European Union to, as it is currently doing with administrative procedure, establish a common set of rules for this emerging remedy for reviewing European administrative acts.
{"title":"ADMINISTRATIVE APPEALS IN THE EUROPEAN UNION: TOWARDS A COMMON MODEL OF ADMINISTRATIVE JUSTICE","authors":"Estanislao Arana García","doi":"10.17721/2227-796x.2019.2.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.06","url":null,"abstract":"Purpose. The aim of this paper is to analyse the activity of the European agencies as a mechanism of control prior to the judicial review. This procedure is carried out by independent and impartial administrative tribunals. This model supposes to create specialized administrative organs that solve conflicts previous to the judicial procedure. The “agencies model” is mainly used in western countries with legal Anglo-Saxon reminiscences. In this paper we analyze the importance of these agencies and its possibilities for improvement in the near future. Method. To achieve this goal it is necessary to: 1) analysis the creative solutions of the agencies courts; 2) verify the performance of agencies through the information provided by themselves; 3) discuss the judicial decisions from a scientific perspective. This process has been implemented through direct contact with experts and professional actively involved at these European administrative courts. Results. EU law is haphazardly creating a system of administrative review that is in many cases a pre-condition to judicial review. This system is most evidently manifesting itself in the application of EU law by administrative agencies. For this purpose, some of the EU’s most important agencies have created specialised bodies known as boards of appeal. These objective and independent bodies have the power to review the decisions of the agency they form part on based on both questions of law and fact. The paper aims to establish a critical vision of the role that new judicial forms are developing and the importance of to reach a specialized criterion for solving technically increasingly complex issues. Conclusions. The board-of-appeal model has proven a successful one as it offers parties a low-cost and effective way of having their complaints resolved without having to go to the European Union Court of Justice. Lastly, there appears to be a need for the European Union to, as it is currently doing with administrative procedure, establish a common set of rules for this emerging remedy for reviewing European administrative acts.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"23 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86693644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-01-01DOI: 10.17721/2227-796X.2019.3.02
Jörg Pudelka, J. Deppe
Transformation in the Central Asia is seen as regards to move towards the market economy, while democratization – rather in in deficit. Nevertheless author sees new signs in the relations of individuals and the state. While the Kyrgyz Republic, Tajikistan and Kazakhstan introduced new administrative procedural laws, they are so revolutionary or, to the contrary, meaningless that their application is not yet certain or requires continued effort. Not only government resources valued as scarce but legal and administrative sciences are behind needs. Findings on administrative and constitutional judiciary presented for Kazakhstan, Uzbekistan, Tajikistan and Turkmenistan. In the first state they are rather active, while in Uzbekistan and Tajikistan rather in shadow, while no one in Turkmenistan. The Kyrgyz Republic has recently given its constitutional court control to its Supreme Court. Public administration in Central Asia author sees as defect, mass media under strict state control, right to a complaint and to a lawsuit as not generally known (kind of exception: Kyrgyz Republic). Presented findings to legal advice and assistance especially in courts valued low or not granted in civil and administrative disputes, legal guarantees of access to justice as uncertain. “Worldwide Governance Indicators (WGI)” are presented and except in accountability of government, rule of law and the control of corruption other points are valued as positive. Having earlier Russia as a leading example now it qualifies no more, generally there is no modelling for administrative matters and laws. As models author presents sections 9, 10, 22, 24, 25, 26, 28 and some basic principles of the German Federal Administrative Procedure Act. Valuing findings, some changes named substantial / sustainable, most rather formal of short-lived. Kazakhstan is named in every respect better than Tajikistan, Turkmenistan and Uzbekistan. Latter states have equally negative reform policy. Except in the Kyrgyz Republic the elections are described as not free and fair.
{"title":"GENERAL ADMINISTRATIVE LAW IN DEVELOPMENT IN CENTRAL ASIA","authors":"Jörg Pudelka, J. Deppe","doi":"10.17721/2227-796X.2019.3.02","DOIUrl":"https://doi.org/10.17721/2227-796X.2019.3.02","url":null,"abstract":"Transformation in the Central Asia is seen as regards to move towards the market economy, while democratization – rather in in deficit. Nevertheless author sees new signs in the relations of individuals and the state. While the Kyrgyz Republic, Tajikistan and Kazakhstan introduced new administrative procedural laws, they are so revolutionary or, to the contrary, meaningless that their application is not yet certain or requires continued effort. Not only government resources valued as scarce but legal and administrative sciences are behind needs. Findings on administrative and constitutional judiciary presented for Kazakhstan, Uzbekistan, Tajikistan and Turkmenistan. In the first state they are rather active, while in Uzbekistan and Tajikistan rather in shadow, while no one in Turkmenistan. The Kyrgyz Republic has recently given its constitutional court control to its Supreme Court. Public administration in Central Asia author sees as defect, mass media under strict state control, right to a complaint and to a lawsuit as not generally known (kind of exception: Kyrgyz Republic). Presented findings to legal advice and assistance especially in courts valued low or not granted in civil and administrative disputes, legal guarantees of access to justice as uncertain. “Worldwide Governance Indicators (WGI)” are presented and except in accountability of government, rule of law and the control of corruption other points are valued as positive. Having earlier Russia as a leading example now it qualifies no more, generally there is no modelling for administrative matters and laws. As models author presents sections 9, 10, 22, 24, 25, 26, 28 and some basic principles of the German Federal Administrative Procedure Act. Valuing findings, some changes named substantial / sustainable, most rather formal of short-lived. Kazakhstan is named in every respect better than Tajikistan, Turkmenistan and Uzbekistan. Latter states have equally negative reform policy. Except in the Kyrgyz Republic the elections are described as not free and fair.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84723620","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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