التناسب كوسيلة قضائية في تحقيق التوازن بين السلطة التقديرية للإدارة وحقوق المواطنين (دراسة مقارنة )

Abstract

This study deals with clarifying the issue of (proportionality or suitability) administrative decisions and the possibility of supervising the administrative judiciary on administrative decisions in terms of proportionality, through an analytical comparative study between the French, the Egyptian and the Iraqi at the jurisprudential and judicial level. The practical importance of this topic lies in knowing the modern role that the administrative judge plays in the area of ​​his control over administrative decisions that went beyond the abstract control of the internal project, which was stopped at the limit of the control of the legal adaptation of facts towards the element of cause - as this control went beyond the control of the administration’s assessment of the importance of Realistic reasons and an assessment of the proportionality between their importance and seriousness and the action taken in their regard. The purpose of this study is to clarify the concept of proportionality control in the administrative judiciary, to clarify the issue of the contradiction between discretionary authority and proportionality, between separation of powers and proportionality, and to clarify the position of the judiciary and administrative jurisprudence on the control of proportionality in the administrative judiciary, to clarify the comparative jurisprudential trends from monitoring proportionality in the administrative judiciary And to clarify the limits of control over the cause of the administrative decision and the authority of the judge between legality and suitability, and to indicate the modern means upon which the administrative judge relies upon examining the decision. The problem of the study is: that the administrative judge, within the framework of his control over proportionality, examines and searches for the latter within the elements of the internal legality of the decision; For what is this censorship focused? That is, what is the element that the administrative judge examines? And does the administrative judge, by using the means of controlling proportionality, remain a judge of legality, or does this control include it within the scope of convenience, as it is one of the issues that the administration is independent of when issuing its decisions? What are the limits of judicial oversight on The authority of proportionality? To what extent is the proportionality audit inconsistent with the discretionary authority and the principle of separation of powers? What is the legal basis for the proportionality audit according to the comparative jurisprudential and judicial debate? Does oversight differ in proportion to oversight, legal conditioning? What are the modern techniques or methods that an administrative judge uses when examining an administrative decision to discover proportionality?