Pub Date : 2019-01-01DOI: 10.17721/2227-796x.2019.2.11
Sergii Shkliar, Olha Bulaieva
Purpose. The article is dedicated to the analysis of the main changes introduced by the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition”. Methods. Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” proposes the implementation of several novelties. Among them are: the restriction for the Antimonopoly Committee of Ukraine by certain time limits for considering cases; possibility of extension of the term for consideration of cases by decision of the Committee’s State Commissioner or head of a territorial office; renewal of deadlines for consideration of cases where the respondent is replaced or a co-respondent is involved; provision for the consequences of missing the deadlines for considering cases and also the mechanism of consultations during the consideration of a case, which may be appointed either on the initiative of the Antimonopoly Committee of Ukraine or on the motion of interested persons. Results. The abovementioned amendments will influence the existing system of economic competition protection in a serious way. Among the changes are: – the fine for delayed payment of a fine imposed by the Antimonopoly Committees of Ukraine decision on violation of the legislation on the protection of economic competition is cancelled; – the member of the Antimonopoly Committee of Ukraine who conducted or organized an investigation is deprived of the right to vote in the process of decision-making in the respective case; – the procedure for holding hearings is defined; – recusals and self-recusals are envisaged for the Antimonopoly Committee of Ukraine officers; – the grounds for acquiring the third-party status in a case are changed; – the rights of persons involved in the case are specified and expanded. An important remark of the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is that a person that is exempted from liability or whose fine is reduced shall still be liable for damage caused by the violation to other persons. Conclusions. As a result, Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is expected to become an important step forward in increasing the effectiveness of investigations into violations of the legislation on the protection of economic competition. It can also be regarded as the next step to harmonize Ukrainian
{"title":"PROTECTION OF ECONOMIC COMPETITION: AN OVERVIEW OF THE LATEST LEGISLATIVE NOVELTIES","authors":"Sergii Shkliar, Olha Bulaieva","doi":"10.17721/2227-796x.2019.2.11","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.11","url":null,"abstract":"Purpose. The article is dedicated to the analysis of the main changes introduced by the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition”. Methods. Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” proposes the implementation of several novelties. Among them are: the restriction for the Antimonopoly Committee of Ukraine by certain time limits for considering cases; possibility of extension of the term for consideration of cases by decision of the Committee’s State Commissioner or head of a territorial office; renewal of deadlines for consideration of cases where the respondent is replaced or a co-respondent is involved; provision for the consequences of missing the deadlines for considering cases and also the mechanism of consultations during the consideration of a case, which may be appointed either on the initiative of the Antimonopoly Committee of Ukraine or on the motion of interested persons. Results. The abovementioned amendments will influence the existing system of economic competition protection in a serious way. Among the changes are: – the fine for delayed payment of a fine imposed by the Antimonopoly Committees of Ukraine decision on violation of the legislation on the protection of economic competition is cancelled; – the member of the Antimonopoly Committee of Ukraine who conducted or organized an investigation is deprived of the right to vote in the process of decision-making in the respective case; – the procedure for holding hearings is defined; – recusals and self-recusals are envisaged for the Antimonopoly Committee of Ukraine officers; – the grounds for acquiring the third-party status in a case are changed; – the rights of persons involved in the case are specified and expanded. An important remark of the Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is that a person that is exempted from liability or whose fine is reduced shall still be liable for damage caused by the violation to other persons. Conclusions. As a result, Law of Ukraine “On Amendments to Some Laws of Ukraine ensuring the principles of procedural justice and increasing the efficiency of proceedings in cases of violations of the legislation on the protection of economic competition” is expected to become an important step forward in increasing the effectiveness of investigations into violations of the legislation on the protection of economic competition. It can also be regarded as the next step to harmonize Ukrainian","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"85 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85615634","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.2019.1.05
Roman Mironyuk
{"title":"Specialties of judicial claiming of acts in cases of administrative offences rendered by police officers (by results of judicial practice)","authors":"Roman Mironyuk","doi":"10.17721/2227-796X.2019.1.05","DOIUrl":"https://doi.org/10.17721/2227-796X.2019.1.05","url":null,"abstract":"","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":"88184120","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.2019.2.05
Eglė Bilevičiūtė
The system of national law and the corresponding system of democratic authorities had to guarantee optimal protection of the individual’s fundamental freedoms and rights, and help to create human welfare. Science of administrative law is constantly evolving, and its insights are strategic in nature, oriented towards the future. There is often a struggle for new ideas, opinions, concepts, paradigms to be embedded or denied. The new, old, inaccurate statements are changed to be more accurate, the new ideas criticize the old ones, and life practices raise new problems that science must answer rationally. The science of administrative law in Lithuania is not static, it is constantly changing as the administrative law itself changes. The concept of administrative law is changing, its regulation is expanding. The science of administrative law is an integral part of Lithuanian law science, where the specialists of administrative law – scientists investigate the essence of this branch of law, its subject matter and separate institutes and in general all actual problems of administrative legal practice and science of the whoel country. This article is the first scientific research in the cycle of articles “Development of Administrative Law and Administrative Legal Doctrine in Lithuania”. The purpose of this article is to present the development of administrative law and administrative law doctrine in Lithuania since 1990 by analysing the works of Lithuanian scientists in this field through the categories defined in the research tasks. In order to achieve the aim of the article, the following tasks are raised: briefly to introduce and discuss the development of Lithuanian administrative law science and administrative law as a category, to define and analyse the goals of administrative law, the subject of regulation and the system of administrative law in Lithuania. In order to achieve the aim and tasks of the research, the analysis of the works of Lithuanian scientists and the main laws implementing the administrative legal regulation of Lithuania was performed. Methods. Historical comparative, documents’ analysis, synthesis and other methods were used for research. Results of research showed that Lithuania has modern administrative law and administrative justice system, that meets nowadays meets and European Union justice standards’ requirements. Conclusions. We can conclude that Lithuanian scientists understand the administrative law in broad sense as law of management and described quite wide range of its regulation subjects. After Lithuania’s accession to the European Union and its commitment to take over its acquis communautaire, the entire Lithuanian legal system, together with administrative law, had to adapt to change. Implementation of the provisions of the European Union legislation in Lithuanian law has become a priority. The abundance of administrative legal regulation at European Union level and the need for its application in the case-l
{"title":"DEVELOPMENT OF ADMINISTRATIVE LAW AND ADMINISTRATIVE LEGAL DOCTRINE IN LITHUANIA","authors":"Eglė Bilevičiūtė","doi":"10.17721/2227-796x.2019.2.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.05","url":null,"abstract":"The system of national law and the corresponding system of democratic authorities had to guarantee optimal protection of the individual’s fundamental freedoms and rights, and help to create human welfare. Science of administrative law is constantly evolving, and its insights are strategic in nature, oriented towards the future. There is often a struggle for new ideas, opinions, concepts, paradigms to be embedded or denied. The new, old, inaccurate statements are changed to be more accurate, the new ideas criticize the old ones, and life practices raise new problems that science must answer rationally. The science of administrative law in Lithuania is not static, it is constantly changing as the administrative law itself changes. The concept of administrative law is changing, its regulation is expanding. The science of administrative law is an integral part of Lithuanian law science, where the specialists of administrative law – scientists investigate the essence of this branch of law, its subject matter and separate institutes and in general all actual problems of administrative legal practice and science of the whoel country. This article is the first scientific research in the cycle of articles “Development of Administrative Law and Administrative Legal Doctrine in Lithuania”. The purpose of this article is to present the development of administrative law and administrative law doctrine in Lithuania since 1990 by analysing the works of Lithuanian scientists in this field through the categories defined in the research tasks. In order to achieve the aim of the article, the following tasks are raised: briefly to introduce and discuss the development of Lithuanian administrative law science and administrative law as a category, to define and analyse the goals of administrative law, the subject of regulation and the system of administrative law in Lithuania. In order to achieve the aim and tasks of the research, the analysis of the works of Lithuanian scientists and the main laws implementing the administrative legal regulation of Lithuania was performed. Methods. Historical comparative, documents’ analysis, synthesis and other methods were used for research. Results of research showed that Lithuania has modern administrative law and administrative justice system, that meets nowadays meets and European Union justice standards’ requirements. Conclusions. We can conclude that Lithuanian scientists understand the administrative law in broad sense as law of management and described quite wide range of its regulation subjects. After Lithuania’s accession to the European Union and its commitment to take over its acquis communautaire, the entire Lithuanian legal system, together with administrative law, had to adapt to change. Implementation of the provisions of the European Union legislation in Lithuanian law has become a priority. The abundance of administrative legal regulation at European Union level and the need for its application in the case-l","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82730144","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.2019.3.01
Jan Ziekow
In the brief overview of the procedure for enacting an administrative act it is stated that in the German understanding the administrative procedure with its inherent control mode, goal orientation and role of the various institutions and bodies as well as persons involved in the intermediary role between constitutional requirements and administrative reality is not purely technical one. The authority decides ex officio about the opening of the procedure except a citizen applied for, it decides at its discretion except when it must act ex officio how to proceed. Its important principles named as informality, simplicity, expediency, speed, obligation t o cooperate and freedom of form. Special importance is attributed to the principle of officiality of the investigation of a given case. The relevance of circumstances arises from the relevant legal norms and – i case of – discretionary decisions. The extent of the proof and the burden of proof are also important for the scope of the official investigation principle. Authorities are obliged to grant the citizen a right to be heard in the administrative procedure and to influence the course and outcome of the procedure. It carries direct and indirect external impact, revealing the basic understanding of relations between the state and the individual derived from the constitution. Equal treatment of all citizens and material substantivity proves the rule of law and prohibits the abuse of power at the expense of the citizen.
{"title":"PROCEDURE FOR ISSUING OF ADMINISTRATIVE ACTS","authors":"Jan Ziekow","doi":"10.17721/2227-796x.2019.3.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.3.01","url":null,"abstract":"In the brief overview of the procedure for enacting an administrative act it is stated that in the German understanding the administrative procedure with its inherent control mode, goal orientation and role of the various institutions and bodies as well as persons involved in the intermediary role between constitutional requirements and administrative reality is not purely technical one. The authority decides ex officio about the opening of the procedure except a citizen applied for, it decides at its discretion except when it must act ex officio how to proceed. Its important principles named as informality, simplicity, expediency, speed, obligation t o cooperate and freedom of form. Special importance is attributed to the principle of officiality of the investigation of a given case. The relevance of circumstances arises from the relevant legal norms and – i case of – discretionary decisions. The extent of the proof and the burden of proof are also important for the scope of the official investigation principle. Authorities are obliged to grant the citizen a right to be heard in the administrative procedure and to influence the course and outcome of the procedure. It carries direct and indirect external impact, revealing the basic understanding of relations between the state and the individual derived from the constitution. Equal treatment of all citizens and material substantivity proves the rule of law and prohibits the abuse of power at the expense of the citizen.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81970874","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.2019.3.06
Eberhard Schmidt-Assmann
The contribution explains the underlying rationale, objectives and constitutional framework for administrative procedural law. Furthermore, the arguments for and against comprehensive codification of administrative procedural rules, as well as the most significant elements of administrative procedural law, are discussed. Lastly, possible models for codification are presented, namely the German Law on Administrative Procedure, the US Administrative Procedure Act and the ReNEUAL Model Rules on EU Administrative Procedure.
{"title":"CODIFICATION OF ADMINISTRATIVE PROCEDURAL LAW: TRADITIONS AND MODELS","authors":"Eberhard Schmidt-Assmann","doi":"10.17721/2227-796x.2019.3.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.3.06","url":null,"abstract":"The contribution explains the underlying rationale, objectives and constitutional framework for administrative procedural law. Furthermore, the arguments for and against comprehensive codification of administrative procedural rules, as well as the most significant elements of administrative procedural law, are discussed. Lastly, possible models for codification are presented, namely the German Law on Administrative Procedure, the US Administrative Procedure Act and the ReNEUAL Model Rules on EU Administrative Procedure.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83033928","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.2019.2.02
S. Bevz
The aim of this article is to consider the regulatory framework of state governance and management of economic activity in Ukraine the notion of relevant framework, the nature of the relations that such framework applies its effectiveness. The methods of formal logic are used: analysis, synthesis, induction, deduction, analogy, generalization. The author analyzes the notion of “legislative” and “framework”, based on she synthesizes and generalizes her own vision of the concepts of “legislative framework” and “regulatory framework”. Relationship about state governance and management of economic activity is delimited deductively. Conclusions are drawn about the effectiveness of the regulatory framework of the relevant direction of State’s activities with applying induction. The view expressed that the legislative framework should be included only laws of Ukraine and international agreements ratified by the Verkhovna Rada of Ukraine, the consent of which is binding on the Verkhovna Rada of Ukraine. Results and conclusions. It is emphasized on the need to delimit the terms “regulatory framework”, “legislative framework”, “law framework”. The ratio of the latter two concepts can be determined by analogy between the concepts of “system of legislation” and “system of law”. The author draws attention to the fact that the principle of the definition of the range of relations covered by the regulatory framework for state governance and management of economic activity is the understanding of the subject of such activity – the state, which is endowed with both powers of authority and economic legal personality. At first case, it is state governance, at second – state management. Therefore, the relevant regulatory framework unites sources that determine the rules of conduct for the state – the subject of power and the state – a subject with economic legal personality. It was also emphasized that the quality of the regulatory framework of state governance and management of economic activity in Ukraine depends on the proper implementation of the state regulatory policy in the field of economic activity, primarily the principles of the relevant policy. They defined by the Law of Ukraine “On the Principles of State Regulatory Policy in the Field of Economic Activity”: expediency, adequacy, efficiency, balance, predictability and take into account of public opinion. The latter may serve as criteria for regulatory acts in the field of economic activity, the discrepancy with them is indicates the poor quality of such legal act and the inexpediency of acceptance. At the same time, the quality of regulatory acts indicates the level of state regulatory policy as a whole, and their application effectiveness of state governance of economic activities. The author made a conclusion that in order to eradicate the practice of adopting regulatory acts on the same issues, relevant legislation should be primarily incorporated with subsequent codification. Those regulatory
{"title":"ON THE ISSUE OF REGULATORY FRAMEWORK FOR STATE GOVERNANCE AND MANAGEMENT OF ECONOMIC ACTIVITIES IN UKRAINE","authors":"S. Bevz","doi":"10.17721/2227-796x.2019.2.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.02","url":null,"abstract":"The aim of this article is to consider the regulatory framework of state governance and management of economic activity in Ukraine the notion of relevant framework, the nature of the relations that such framework applies its effectiveness. The methods of formal logic are used: analysis, synthesis, induction, deduction, analogy, generalization. The author analyzes the notion of “legislative” and “framework”, based on she synthesizes and generalizes her own vision of the concepts of “legislative framework” and “regulatory framework”. Relationship about state governance and management of economic activity is delimited deductively. Conclusions are drawn about the effectiveness of the regulatory framework of the relevant direction of State’s activities with applying induction. The view expressed that the legislative framework should be included only laws of Ukraine and international agreements ratified by the Verkhovna Rada of Ukraine, the consent of which is binding on the Verkhovna Rada of Ukraine. Results and conclusions. It is emphasized on the need to delimit the terms “regulatory framework”, “legislative framework”, “law framework”. The ratio of the latter two concepts can be determined by analogy between the concepts of “system of legislation” and “system of law”. The author draws attention to the fact that the principle of the definition of the range of relations covered by the regulatory framework for state governance and management of economic activity is the understanding of the subject of such activity – the state, which is endowed with both powers of authority and economic legal personality. At first case, it is state governance, at second – state management. Therefore, the relevant regulatory framework unites sources that determine the rules of conduct for the state – the subject of power and the state – a subject with economic legal personality. It was also emphasized that the quality of the regulatory framework of state governance and management of economic activity in Ukraine depends on the proper implementation of the state regulatory policy in the field of economic activity, primarily the principles of the relevant policy. They defined by the Law of Ukraine “On the Principles of State Regulatory Policy in the Field of Economic Activity”: expediency, adequacy, efficiency, balance, predictability and take into account of public opinion. The latter may serve as criteria for regulatory acts in the field of economic activity, the discrepancy with them is indicates the poor quality of such legal act and the inexpediency of acceptance. At the same time, the quality of regulatory acts indicates the level of state regulatory policy as a whole, and their application effectiveness of state governance of economic activities. The author made a conclusion that in order to eradicate the practice of adopting regulatory acts on the same issues, relevant legislation should be primarily incorporated with subsequent codification. Those regulatory","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"14 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73541032","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.2019.1.10
Kateryna Solodova
{"title":"Some aspects of understanding the category of “peacefulness” in the practice of the European Court of Human Rights as a condition for respect for the right to freedom of peaceful assembly","authors":"Kateryna Solodova","doi":"10.17721/2227-796x.2019.1.10","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.1.10","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"102 4 Pt 1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74637508","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.2019.4.04
Jānis Neimanis
The article considers discretion enjoyed by institutions. Discretion enjoyed by institutions implies that law grants а right to choose between various legal implications for the person who applies the law. Discretion is а legislative tool which helps achieve а high level of fairness in an individual case. Discretion of institutions provided by lawmakers enables an institution to consider the specific circumstances of а specific situation and reach а fairer result. However, even such “freedom” imposes an obligation on the institution to apply it in а responsible and correct manner. Discretion does not mean that the institution is granted absolute “freedom” or arbitrariness. The scope of control of discretion in а higher institution and а court differs. А higher institution independently carries out all feasibility assessments for а second time based on merit, ultimately reaching а similar or different result. The courts can verify the validity of the activities undertaken by the public administration: a) failure to use discretion; b) abuse of discretion; c) misuse of discretion. The courts do not have the right to take а decision on the most appropriate result since it leads to violation of the principle of separation of powers.
{"title":"DISCRETION OF INSTITUTIONS","authors":"Jānis Neimanis","doi":"10.17721/2227-796x.2019.4.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.04","url":null,"abstract":"The article considers discretion enjoyed by institutions. Discretion enjoyed by institutions implies that law grants а right to choose between various legal implications for the person who applies the law. Discretion is а legislative tool which helps achieve а high level of fairness in an individual case. Discretion of institutions provided by lawmakers enables an institution to consider the specific circumstances of а specific situation and reach а fairer result. However, even such “freedom” imposes an obligation on the institution to apply it in а responsible and correct manner. Discretion does not mean that the institution is granted absolute “freedom” or arbitrariness. The scope of control of discretion in а higher institution and а court differs. А higher institution independently carries out all feasibility assessments for а second time based on merit, ultimately reaching а similar or different result. The courts can verify the validity of the activities undertaken by the public administration: a) failure to use discretion; b) abuse of discretion; c) misuse of discretion. The courts do not have the right to take а decision on the most appropriate result since it leads to violation of the principle of separation of powers.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"18 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74692817","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.2019.3.04
Maria Krausenboeck
The paper focuses on administrative law reform within the European Union and raises this problem in the Central Asia countries: as EU advances with its codification and structuring on the existing principles and institutions, the countries of Central Asia start from scratch. A group of academics within the Research Network on European Administrative Law (ReNEUAL), starting with comparative law method, tries to use national administrative procedural laws, case law and principles of the administrative procedure of the European and national courts, as well as the relevant soft law, especially the “Ombudsprudence” aims, taking into account new communication technologies, at developing a relevant draft law. In its independent work between 2009 to 2014 the ReNEUAL network specified the constitutional principles for administrative procedures, naming proposed draft “self-administration law”. It deals with institutions, bodies, offices and agencies of the European Union in their relations with the public as well as various cross-cutting issues: rules on the consequences of procedural errors, use of undefined legal terms, optimization of the rules for complex processes. European Parliament’s legal committee made some reference to the ReNEUAL draft and also sought advice from members of the network. Later draft from Parliament, seen as less ambitious, stays within the basis of the currently applicable EU treaties, whereby the ReNEUAL draft would sometimes require changes to the treaty. The proposed ReNEUAL builds transparent basis for exercising human and citizen rights, helps ensure transparency and consistency of the EU administrative institutions. It could also serve as a catalyst for the reform of national administrative procedural laws. The European Commission not convinced that EU administrative law could be summarized in a single legal document, asked for a cost-benefit analysis and impact assessment and publicly consulted on the codification of EU administrative procedure from 15.12.2017 to 09.03.2018, publishing results in July 2018.
{"title":"DER RENEUAL MODEL DRAFT FOR AN ADMINISTRATIVE PROCEDURE LAW – BACKGROUNDS AND CURRENT SITUATION","authors":"Maria Krausenboeck","doi":"10.17721/2227-796x.2019.3.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.3.04","url":null,"abstract":"The paper focuses on administrative law reform within the European Union and raises this problem in the Central Asia countries: as EU advances with its codification and structuring on the existing principles and institutions, the countries of Central Asia start from scratch. A group of academics within the Research Network on European Administrative Law (ReNEUAL), starting with comparative law method, tries to use national administrative procedural laws, case law and principles of the administrative procedure of the European and national courts, as well as the relevant soft law, especially the “Ombudsprudence” aims, taking into account new communication technologies, at developing a relevant draft law. In its independent work between 2009 to 2014 the ReNEUAL network specified the constitutional principles for administrative procedures, naming proposed draft “self-administration law”. It deals with institutions, bodies, offices and agencies of the European Union in their relations with the public as well as various cross-cutting issues: rules on the consequences of procedural errors, use of undefined legal terms, optimization of the rules for complex processes. European Parliament’s legal committee made some reference to the ReNEUAL draft and also sought advice from members of the network. Later draft from Parliament, seen as less ambitious, stays within the basis of the currently applicable EU treaties, whereby the ReNEUAL draft would sometimes require changes to the treaty. The proposed ReNEUAL builds transparent basis for exercising human and citizen rights, helps ensure transparency and consistency of the EU administrative institutions. It could also serve as a catalyst for the reform of national administrative procedural laws. The European Commission not convinced that EU administrative law could be summarized in a single legal document, asked for a cost-benefit analysis and impact assessment and publicly consulted on the codification of EU administrative procedure from 15.12.2017 to 09.03.2018, publishing results in July 2018.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90849618","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.2019.1.08
Stephanos Emm. Kareklas
{"title":"Enforcement against the state assets of Greece (against public sector)","authors":"Stephanos Emm. Kareklas","doi":"10.17721/2227-796x.2019.1.08","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.1.08","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"2 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72582268","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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