RESOLVING IRREMOVABLE DOUBTS IN FAVOR OF THE PARTY IN THE LIGHT OF ART. 7A AND ART. 81A OF THE CODE OF ADMINISTRATIVE PROCEDURE

Abstract

Introduced by the Act of April 7, 2017 („Act amending the Act - Code of Administrative Procedure and certain other acts”), the amendment to the Administrative Procedure Code introduced the rules for settling irremovable doubts as to the legal and factual status in favor of the party (Article 7a of the Code of Administrative Procedure; Article 81a 1 of the Code of Administrative Procedure). The author presents the position of the legislator, expressed in the justification of the draft amendment, which indicates, among others, on the need for less restrictive and formalistic use of authority, adjustment of regulations to the European Code of Good Administrative Behavior, partnership approach of the administration to citizens, deepening citizens’ trust in public authority, friendly administration and attempts to explain the original reasons for establishing the above principles. The author points to unjust restrictions in the application of the principles expressed in art. 7a k.p.a. and Art. 81a 1 k.p.a. to the situation of imposing obligations on a party or limiting or withdrawing rights, justifying that the correct interpretation of the introduced rules should not exclude situations in which the subject of the proceedings is the granting or extension of rights. In addition, the author proposes a new wording of the norm, combining doubts as to the legal and factual status, supplementing the catalog of administrative law principles, or possibly transferring the principle concerning resolving doubts related to establishing the facts to the part of the Code of Administrative Procedure concerning issuing decisions.