‘Populism? It’s Administrative Law, Stupid!’

This paper provides a comprehensive analysis of Russian administrative litigation, incorporating legislation, case law, and academic scholarship, in order to introduce the system and structure of administrative litigation in the Russian Federation. Indeed, the structure of legal relationships in Russian administrative law is completely different from that in South Korea's administrative law, so there are many aspects that can be compared between Russian administrative litigation law and South Korea's administrative litigation law. Moreover, since administrative litigation law in all countries is based on administrative law, the administrative litigation law in the Russian Federation introduced in this paper can also be compared with South Korea's administrative litigation law.
 Currently, the Russian administrative litigation system consists of administrative proceedings and administrative lawsuits. The administrative proceedings system has evolved based on the administrative proceedings system in the Soviet Union, while the administrative lawsuits system has been established in a completely different form from the administrative lawsuits system in the Soviet era. After the collapse of the Soviet Union, the Russian administrative litigation system treated administrative lawsuits as a special type of civil or commercial litigation, while categorizing administrative proceedings as a separate remedy under administrative law. However, with the enactment and implementation of the Administrative Lawsuit Law in 2015, administrative lawsuits were separated from civil and commercial lawsuits and established as an independent litigation system, establishing its own type of lawsuit, alongside the types of lawsuits enumerated in the Russian Constitution (constitutional lawsuits, civil lawsuits, criminal lawsuits, commercial lawsuits, and administrative lawsuits).
 Administrative litigation in the Russian Federation refers to the administrative remedy under administrative law, which is carried out by the administrative adjudication committee established by law for administrative agencies or individual administrative systems. One characteristic of Russian administrative litigation is that the appellate body that can cancel or invalidate administrative decisions is the administrative adjudication committee of the superior agency or individual administrative system established by law, and the administrative agency cannot review its own administrative decision. In the case of administrative litigation, it is a full trial based on a lawsuit by the parties involved. The type of administrative litigation is distinguished based on whether the dispute has economic value and whether the administrative action is illegal. In the former case, it is classified into general administrative litigation and administrative commercial litigation, based on the existence of economic value in the administrative dispute. In the latter case, it is classified as administrative violation litigation based on whether there is illegality in the administrative action that imposes legal sanctions for the administrative punishment of illegal administrative acts by administrative authorities. Therefore, the types of administrative litigation in the Russian Federation are composed of 1) general administrative litigation for disputes between administrative entities regarding rights and obligations under administrative law, 2) administrative commercial litigation for disputes regarding economic rights and obligations under administrative law, and 3) administrative violation litigation for administrative punishment of illegal administrative acts by administrative authorities as a lawsuit material.
 The characteristics of Russia's administrative litigation system are as follows. First, in administrative adjudication, administrative agencies are bound by their own administrative decisions and cannot review them on their own.

Federal Administration and Administrative Law in the Gilded Age

Under the constitutional framework of “one country, two systems” that has been put into practice since Hong Kong’s reunification with China in 1997, the legal system of the Hong Kong Special Administrative Region (HKSAR) and that of mainland China operate autonomously in such a way that they are largely independent of each other. The HKSAR retains almost all the features of its pre-1997 common law system. In the domain of public law, the legal history of the HKSAR has seen a number of high profile constitutional cases as well as cases in administrative law. There has been a notable increase in judicial review cases in Hong Kong since the handover. Administrative law in Hong Kong is thus not only alive and well in the post-1997 era, but has flourished and displayed an unprecedented degree of vibrancy and vitality. At the same time, across the Hong Kong-Shenzhen border, administrative law has also flourished in mainland China. In March 1999, the National People’s Congress (NPC) adopted constitutional amendments which provide, inter alia, for “ruling the State in accordance with law” and “building a socialist Rechtsstaat (State based on the Rule of Law)”. Later in the same year, the State Council promulgated the Decision on the Comprehensive Promotion of Administration in Accordance with Law. This Decision was followed by the very detailed and elaborate Implementation Outline for the Comprehensive Promotion of Administration in Accordance with Law promulgated by the State Council in 2004. The last decade has also seen major enactments in the field of Chinese administrative law, including three major laws enacted by the NPC Standing Committee -- the Law of Administrative Licensing 2003, the Law on Civil Servants 2005, the Law on Security Administrative Punishment 2005, and two major enactments by the Supreme People’s Court – its Interpretations on the Administrative Litigation Law in 2000, and its Provisions on Evidence in Administrative Litigation in 2002. Drafting work for the revision of the Administrative Litigation Law 1989 has also begun. In this short essay, I will reflect and comment on some aspects of administrative law in China from the perspective of a scholar of law in Hong Kong, and draw some broad comparisons between administrative law in mainland China and Hong Kong. I will begin with some thoughts on the historical development of Chinese administrative law. Then I will turn to the structure of contemporary Chinese administrative law as presented in leading textbooks, and compare it with that of administrative law in Hong Kong. Finally, I will comment on some key features of the law of administrative litigation in China, particularly the scope of and grounds for judicial review of administrative action.

Administrative law is the poor relation of public law; the hard- working, unglamorous cousin laboring in the shadow of constitutional law. Constitutional law, it is generally believed, resolves the great issues of state and society, while administrative law, in its best moments, merely refi nes those principles for dealing with the administrative state. Law students fl ock to constitutional law classes, of which most law schools have three or four in the curriculum. The same students enroll in administrative law with a sense of obligation, as if the subject is a chore one has to manage. The two fi elds are, of course, intimately related, and share an overarching purpose of managing the relationship between state and citizen, with an emphasis on protection of the latter in democratic states. On the other hand, the fi elds refl ect diff erent legal sources and modalities. In some countries, they are adjudicated by entirely diff erent courts. While constitutional law is becoming ever more comparative, with judges regularly citing each other’s opinions, administrative law remains bound to the nation state. This chapter makes three arguments. First, it argues that the conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions. Second, it shows that written constitutions do relatively little to legally constrain the administrative state. Rather, their role is to establish the broader structural apparatus of governance and accountability, in which the bureaucracy is the great unspoken. This leaves administrative law as a relatively free- standing fi eld characterized by great fl exibility and endurance, features that are usually thought to be more embodied in constitutions. Third, the chapter concludes that the exercise of comparison helps to expose the limits of written constitutions, and to call for greater attention to comparative administrative law as a feature of the unwritten constitution of nation states. 1. On the constitutional character of administrative law The conventional understanding is that the fi elds of constitutional and administrative law share similar purposes of protection of rights, control of agency costs, and limitation of government. The primary diff erence, in this view, concerns their place in the hierarchy of public law: constitutional law regulates the highest norms of the state, while administrative law governs sub- legislative action, somewhat lower in the hierarchy of sources, and hence in importance. In contrast, I argue that along several dimensions, administrative law should be understood as more ‘constitutional’ than constitutional law. Consider the widely ascribed functions attributed to constitutions (Breslin 2009). Many would place the function of

This article assesses where the Supreme Court stands on administrative law after the 2018 term, focusing on Kisor v. Wilkie and Department of Commerce v. New York. Over the last decade, the Roberts Court had demonstrated increasing concerns about an out-of-control federal bureaucracy at odds with the constitutional order, but hadn’t pulled back significantly on administrative governance in practice. The 2018 term provided the Court with a chance to put its might where its mouth was. Yet administrative law’s denouement did not come; established administrative law doctrines remain in force, albeit narrowed. The 2018 Term cases demonstrate that the Roberts Court is deeply divided on administrative law along clear ideological lines. The cases also illuminate several core analytic themes and tensions in the Roberts Court’s administrative law jurisprudence, in particular disagreements over: the relationship of law and policy; formalism and nonformalism; the role of history; and administrative common law versus Administrative Procedure Act originalism. Taking a further step back, two contrasting frames emerge from the Roberts Court’s 2018 term administrative law opinions. One is radical, with a categorical and uncompromising formalism, commitment to limited government and aggressive judicial review, insistently originalist stance, and rejection of contemporary judicial review doctrines as at odds with traditional understandings of judicial power and the meaning of the APA. The other is incrementalist and common law in character, encompassing justices with a broader range of views about constitutional structure and administrative government but united in their unwillingness to disrupt existing governance regimes, at least not all at once. Which of these analytic frames will ultimately prevail still remains an open question, but incrementalism was plainly the victor in the 2018 Term’s administrative law decisions. That is significant, but should also not obscure that there was unity across the Court in urging greater judicial scrutiny of administrative action. Moreover, despite invocations of the importance of bureaucratic expertise, these decisions share the concerns with unaccountable, aggrandized, and arbitrary administrative power that characterize the Roberts Court’s administrative jurisprudence more widely. Notably lacking is reference to the ways that the administrative state operates to constrain power, render it accountable, and advance individual liberty. Absent a more balanced view of the administrative state, the Roberts Court is unlikely to develop a coherent approach to administrative law.

The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight

The article identifies and describes the fundamental dimensions and elements of the Polish administrative state before and after the accession of Poland to the European Union, beginning with the critical question of how to preserve the status of a state in a supra-state organization. The authors explain the essence of the European Union, or Europeanization, in the field of Polish administration and administrative law. Analysis of the Europeanization of Polish administrative law is focused on its basic aspects grouped under six headings: sources, cooperation, paradigm (constitutionalization), administrative democracy, scope and depth, and outcomes. Separate attention is given to the notion of public administration, as the widely applied definition of the concept framed by Jan Boć became obsolete after accession to the European Union and required transformation and extension. With language being a key feature of public administration, the text points to the post-accession impact of the English language on Polish administration and administrative law. The article concludes with outcomes of Europeanization on the gestalt of the administrative state in Poland. The general outcome stresses that Polish administration and administrative law operate not only within the context of the Polish state and Polish law, but increasingly within a supra-state European administrative framework and European legal space and European public law.

This article begins with the descriptive claim that much of administrative law is really administrative common law: doctrines and requirements that are largely judicially created, as opposed to those specified by Congress, the President, or individual agencies. To be sure, governing statutes exert some constraining force on judicial creativity, but the primary basis of these judge-fashioned doctrines lies in judicial conceptions of appropriate institutional roles, along with pragmatic and normative concerns, that are frequently constitutionally infused and developed incrementally through precedent. Yet the judicially created character of administrative law is rarely acknowledged by courts - and to the extent courts do acknowledge judicial development of administrative law, they usually condemn the practice.Turning from descriptive to more normative, the article argues for explicit judicial recognition and acceptance of administrative common law. Administrative common law serves an important function in our separation of powers system, a system that makes it difficult for Congress or the President to oust the courts as developers of administrative law. In particular, the institutional features of administrative law - the role it plays in structuring relationships between different government institutions and the requirements it imposes on how agencies operate - create strong pressures on courts to play a lawmaking role. Moreover, courts have employed administrative common law as a central mechanism through which to ameliorate the constitutional tensions raised by the modern administrative state. These features combine to make administrative common law inevitable. At the same time, administrative common law represents a legitimate instance of judicial lawmaking. The very same factors that support federal common law in other instances - unique federal interests at stake, a need for uniformity, and the impropriety of relying on state law - dominate federal administrative contexts. Much administrative common law also has a statutory basis to which it is at least loosely tethered, and embodies core constitutional values. As important, openly acknowledging the role that judicial lawmaking plays is critical to clarifying and improving administrative law.

The article examines different views on the state registration of real property rights, in particular, indicates that such a process is interpreted by scholars in terms of administrative law as: a type of administrative proceedings or as an institution of law and legislation, or as an administrative service, and in some cases as the way the state performs administrative functions. It is noted that the state registration of rights to real estate especially ownership rights, can be an institution of administrative and civil law or be considered an interdisciplinary institution. In the part in which it is an institution of administrative law, the question arises, to the substantive, ie specifically administrative law or procedural, ie administrative procedural law, this institution can be attributed? Public - legal direction, as well as the legal properties that are endowed with state registration of rights allow us to speak about a certain uniqueness of its public law essence. It plays a special role in private legal relations as a legal mechanism for the emergence, transfer and termination of rights. It is noted that while civil law uses the main dispositive method of legal regulation of civil relations, the studied relations are regulated by the method of imperative prescriptions, in particular imperative are the rules of civil law, which establish the need for state registration, as well as administrative law of procedural nature. It is stated that as part of administrative law the institute under study belongs to its special part, which contains normative material and theoretical provisions governing a particular type of homogeneous social relations, including subsectors and legal institutions, service law, municipal law, administrative law, administrative procedural law.

KTUN as object of dispute in PTUN has been regulated in the Administrative Court Law including the procedure. After the promulgation of the Administrative Law of the Government, KTUN and the procedure also regulates the Law on Government Administration, but it is a difference in the regulation of the nature of decisions and procedures. The type of research used is normative legal research. Based on the results of the study it can be concluded that there are differences in arrangements for the 3 aspects regulated in the Administrative Court Law and Government Administration Law, namely the first arrangement of the nature of the KTUN, where the concept of KTUN becomes a supplement after the birth of the Government Administration Law and has implications for changes supported by PTUN. Arrangement of Registration status that is kept quiet by the Agency and / or TUN Officials, which were previously fictitious negative but after the birth of the Administration Administration Law became fictitious positive; Carry out a claim filed by the administration in the form of an appeal. Although there are differences, regulating for the material law based on the Government Administration Law and formal law is still guided by the Administrative Court Law. The implication of the regulation on the nature of the KTUN in the Administrative Court Law and Government Administration Law is as agreed by the KTUN and suspended by PTUN authorities, a positive fictitious decision that cannot provide legal guarantees and filing a claim to PTUN against a belt connection which is not in accordance with the principle simple, fast and cheap court.

The article analyzes the development of the theory of administrative law and administrative legislation. The formulation of the theoretical distinction between administrative and administrative procedural law raises questions about the differentiation of legal forms of expression of material and procedural actions. The aim is a comprehensive study of the legal forms of activity of public administration bodies. The paper substantiates the need to differentiate actions as a legal form in connection with the differentiation of administrative substantive and procedural law. The objectives are: to pose the problem of the presence of actions in administrative law that do not have the characteristics of procedural actions; comparative characteristics of actions in substantive and procedural administrative law. Actions in administrative procedural law are presented in the form of a process (production) with a number of features, such as: repeatability, stage-by-stage, the presence of an administrative case. Actions in administrative (substantive) law do not correspond to such signs. The author examines actions, differentiating them into procedural and non-procedural, and offers his own signs of non-procedural forms in substantive law.

Criminal sanctions in their use in administrative criminal law are an unavoidable condition to support administrative law enforcement. The policy of using criminal sanctions in administrative criminal law is a very important discussion. The application of criminal sanctions in administrative penal law is not only a technical matter of legislation but an inseparable part of the substance of legislation as a legislative policy process. The formulation of the problem in this research concerns how the regulation of criminal sanctions that can be applied to corporations in administrative penal law in the future. The method used in this research is normative juridical research, employing conceptual approach techniques, statutory approaches, and historical approaches. The nature of this research is descriptive, and the data used in this research is secondary data, with data collection techniques carried out through literature studies and document studies. Data analysis in this research will be analyzed qualitatively. The results and discussion in this research indicate that, so far, criminal sanctions that can be applied to corporations in administrative penal law only focus on criminal sanctions, which consist of basic and additional punishment. The ideal criminal sanctions to be applied to corporations in the future do not only focus on criminal sanctions but also include action sanctions. The main criminal sanctions that apply to corporations in the future are also not limited to fines but consist of various options. The main criminal sanctions that can be imposed on corporations in the future need to be adjusted to the level of need for administrative laws governing certain fields. Fines as the only main criminal sanction applicable to corporations are unlikely to be imposed singly or independently.

Introduction: the article explores the issue of development of administrative law in the context of political and social changes in Russia. Materials and Methods: the article analyses the development of Russian administrative law in the context of political, economic and social change, and the effect of such change on the subject matter of administrative law, which leads to the following results: Results: Russian administrative law is being reformed with regard to the present day challenges and the international experience of legal regulation. However, modernisation of administrative law must be based on the foundations formed in the earlier years. Changes in the scope of social relations governed by administrative law must be justified and well-founded. Emphasis on the development of administrative procedural law does not exclude further development of the substantive part thereof, for instance, the institution of administrative liability. Legislative amendments must be preceded by elaboration of the “new” administrative law concept. Discussion and Conclusions: Changes in the structure and content of the areas of law occur under the influence of political, economic and social changes. Administrative law as an area of law, an area of legislation and of legal studies, is no exception. However, monographs and textbooks do not pay sufficient attention to the fact that at the present stage of development, administrative law possesses not only a managerial, but also regulatory function, with the latter being not only significant in scope but also quite material in importance. Undoubtedly, this should affect the understanding of the essence and the subject matter of administrative law. At the same time, any change in the system of this area of law, be it extension or narrowing, should have both an academic and practical foundation and work towards increasing the efficiency of legal regulation. This goal must also be served by the much-needed partial modernisation of the administrative liability institution. Therefore, actualisation of approaches towards institutions forming the subject matter of administrative law appears to be one of the most important scholarly tasks at this time.

From its inception, the academic study of EU administrative law has relied heavily on doctrinal categories, concepts and principles, borrowed from the administrative law of the Member States. It has largely preferred research agendas such as the Europeanisation of national administrative law or the development of common European principles derived from national administrative laws. Legal doctrine has also engaged in the critique of EU administrative law when it fails to account for the normative standards that national administrative law must usually observe. Whereas all these constitute important research agendas, they reproduce in particularly acute terms a familiar paradox. While the existence of a European administration and administrative law beyond the state cannot be seriously disputed today, legal doctrine tends to consider them, implicitly or explicitly, from the perspective of the administrative law of the nation-state. The so-called “touch of stateness” has had a firm grip on EU administrative law, even though it includes unique aspects that lack any precedent in national laws. The article considers, and proposes a methodological approach to address, the ways in which preconceptions and normative expectations originating in national law have conditioned, and indeed prevented, the deeper doctrinal development of EU administrative law.

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal era, administrative law - the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, and executive directives - has accommodated the emergence of this fourth branch of government not contemplated by the framers. Familiar principles, including the separation of powers, the rule of law, and individual liberties, permeate administrative law. But these principles cannot expressly be located in the U.S. Constitution. So what is their legal and theoretical foundation? And how are they found in administrative law?This Article argues that administrative law provides an unwritten constitution governing federal administrative agencies. American administrative law is illuminated law through the lens of constitutional theory, and particularly principles of British constitutionalism. This Article shows that administrative law rules, though not formally entrenched, perform essential constitutional functions where the written Constitution has little or no application. These functions include constituting government agencies, determining institutional boundaries, establishing the government-citizen relationship, and protecting fundamental values.The unwritten constitution theory provides a legal and theoretical foundation for ensuring that the administrative state operates consistently with constitutional principles. It also legitimates administrative common law and illuminates political obligations to respect constitutional principles in administrative law development and reform.