Administrative Judges Research Articles

Judicial Monitoring on Administrative Judges' Interpretations of Legal Texts: A Comparative Legal and Linguistic Study

Judicial Monitoring on Administrative Judges' Interpretations of Legal Texts: A Comparative Legal and Linguistic Study

The role of Turkish administrative courts in developing jurisprudence on refugee rights: review of the judgments of the administrative courts from 2014 to 2021

ABSTRACT Turkish administrative courts have a unique role in developing jurisprudence after the adoption of the Law on Foreigners and International Protection in 2014. This article analyses Turkish administrative courts' judgements from 2014 to January 2021 and examines whether there is consistency in the case law of the administrative courts. This article concludes that the decision-making of the administrative courts is still too much of a lottery. There are three main reasons that lead to inconsistencies in the jurisprudence of the administrative courts. The first reason is that court decisions explaining the reasons for their adjudication are not published. Second, some articles in the asylum law give large discretion to the administrative authorities under public security and public order. The third reason is deficiencies in the training of administrative judges and a lack of case law.

Proof in Administrative Law: the German Perspective

German administrative law is characterized by the idea that the authorities and, in the case of a lawsuit, the administrative judges have sovereignty over the investigation of the facts ‐ the so-called principle of ex officio inquiry (Section 1). In the relationship between the official and judicial investigation of the facts, it is striking that the judicial duty to investigate is not limited by the official duty to clarify the facts. This shift in the direction of a judicial right of final decision, also with regard to the factual basis of administrative decisions, derived from the German Constitution (Article 19(4) Grundgesetz) can probably only be explained by the historical background of National Socialist despotism. The article reveals that the instruments of evidence collection (Section 2), the consideration of evidence (Section 3), the evidential standard (Section 4) and the burden of proof (Section 5) are based on the principle of ex officio inquiry. This principle is based on the assumption that only a perceivable set of facts can be established. Therefore, practice and sectoral administrative laws show that in areas where obtaining knowledge is particularly difficult, the principle of ex officio investigation and the law of evidence based on it must be modified and, in particular, strong participation of the parties in obtaining the facts must be made possible. At the same time, the German law of evidence is based on theories and instruments of civil procedural law, which is characterized by the principle of production of evidence. Against this background, the article aims to illustrate that, contrary to the first impression, German administrative law does not implement the principle of official investigation in its pure form, but it is understood in a refined open and area-specific manner.

경찰기관의 정보공개 처분에 대한 검토

In this study, examine information disclosure and the administrative judgment system, which are means of police control, and examine the current status of the Central Administrative Appeals Commission's citation decision that clearly recognized the illegality and unfairness of the disposition of information disclosure by police agencies in 2023. In addition, it was intended to provide suggestions for reasonable disposition of information disclosure by police agencies. When a citizen exercises the right to request information disclosure from a police agency, the police agency decides whether or not to disclose the information in accordance with the statutory procedures set forth in the Information Disclosure Act. A person requesting information disclosure may appeal a police agency's decision to disclose information by filing an administrative appeal with the Central Administrative Appeals Commission. After reviewing the decision to disclose information to police agencies, be able to confirm the following facts. First, police agencies identified cases where they did not comply with statutory procedures under the Information Disclosure Act or misjudged the application of reasons for non-disclosure. In addition, we were able to confirm cases where police agencies' information disclosure officers lacked basic knowledge of the Information Disclosure Act, adding or changing the reasons for disposition, or restricting the information disclosure claimant's right to object through a substantive refusal with formal legality. The suggestions derived from the review of citation decisions regarding information disclosure by police agencies as discussed above can be summarized as follows. There is a need to do about the First, strengthening disciplinary responsibility for those in charge who do not comply with information disclosure procedures, Second, regular education and evaluation on cases of illegal and unfair information disclosure, Third, the introduction of a training completion system for police agency-specific office workers in the fields of investigation, transportation, and life safety, Fourth, strengthening the supervisory function of the Supervisory Office, Fifth, disclosure of cases of illegal and unfair decisions

Swoboda sędziego sądu administracyjnego rozumiana jako ważenie wartości konstytucyjnych

The article demonstrates the relevant role of the administrative court judge in the process of institutional constitutionalisation. The discretionary power of the administrative judges is provided by the activities undertaken within the framework of the adopted jurisprudential strategies, whose value is expressed in taking into account the need to build the foundations for the possibility of carrying out the widest possible dialogue both in the constitutional and European fields. The criticism of the judicature justifies the claim that to the extent relating to the interpretation of law, the constitutional principles and the principles of the European law bear significant importance, established already by a certain tradition, which causes the scope of the concept of law to be relatively wide and subject to the said balancing while adjudicating a specific case.

مبدأ حياد القاضي الإداري واثره في حماية الحقوق والحريات

In order to carry out the administrative judiciary by its duty effectively and to guarantee the rights and freedoms of individuals, and to work on and providing more guarantee for the right to debt demanding ,it must be impartial and independent to face the authorities of another state, the judge must be impartial and impartial when considering cases and the judge does not differentiate between opponents, as each point of impartiality and independence is a great importance in maintaining the judicial system who is able to restore rights to their owners, the judge may carry out his judicial duties independently on the basis of his appreciation of the facts and in accordance with the provisions of the law without any internal influences or temptations or threats, he mustn’t be biased to the opponent against the another opponent and to stand at the same distance from the parties to the lawsuit to ensure that the balance of justice equally.

Legal Annotation of Court Decision Number 75 / Pdt.Sus – Ipr / Merek / 2022 / Pn Niaga Jkt.Pst in Administrative Certainty for Famous Brands in Indonesia

Review of the trademark determination in court decision Number 75/Pdt.Sus-Hki/Merek/ 2022/Pn Niaga Jkt.Pst rejection of the application for the trademark GENHALILINTAR + Painting by Anofial Asmid because it was registered by PT SOKA CIPTA NIAGA on October 23 2017 with a Notification of Rejection Registration of the Mark "GENHALILINTAR + Painting" Agenda Number D002018027834 dated 31 December 2019 by the Directorate General of Intellectual Property and Decision of the Mark Appeal Commission / Defendant Number 375 / KBM / IPR / 2020 dated 8 September 2020. This turns out to be interesting because in Halilintar Anofial Asmid has registered the GENHALILINTAR + Painting brand in several classes, which of course contradicts the arguments in the Notice of Rejection and Decision of the Mark Appeal Commission. This paper uses normative legal research methods. With the conclusion Based on the legal annotation of the Decision that there are problems that occur in granting well-known trademark rights to certain people or civil legal entities, especially if the trademark holder is not the initial initiator of its popularity. In terms of administrative certainty of the GENHALILINTAR + Painting mark, state administrative legal action in trademark disputes can be filed against the decision to delete a registered mark at the initiative of the Minister. If there has not been an administrative Judge's Decision, the first principle is that the registered mark has a stronger position compared to the popular indication of a mark

Discussion on the Relationship between the Inquisitorial Investigation and the Objective Burden of Proof in Tax Litigation: Focusing on the Administrative Judgment of Supreme Administrative Court (110) Shang-Zi No. 300

Discussion on the Relationship between the Inquisitorial Investigation and the Objective Burden of Proof in Tax Litigation: Focusing on the Administrative Judgment of Supreme Administrative Court (110) Shang-Zi No. 300

How to Decide Whether a Payment Is Compensation or Illegal Withdrawn in Tax Fact? Focusing on the Administrative Judgment of Taipei High Administrative Court (111) Su-Zi No. 1004

How to Decide Whether a Payment Is Compensation or Illegal Withdrawn in Tax Fact? Focusing on the Administrative Judgment of Taipei High Administrative Court (111) Su-Zi No. 1004

Evolution of the Competency Criteria of the Administrative Judge in Morocco

The identification of the area of competence of the administrative judge has historically constituted the main means of determining the scope of application of administrative law as an autonomous law. This study proposes to examine the criteria adopted by jurists to decide on the jurisdiction of the administrative judge in Morocco. Its purpose is to elucidate the position of doctrine and case law on this subject, via the presentation of jurisdictional decisions illustrating the temporal evolution and the socio-political context characterizing the choice of a given criterion in order to reconstruct its genesis, its historical context and its specificities. The work also tries to bring out the points of convergence and divergence between Morocco and France, exporting country of administrative law through colonial penetration, as to the elements which justified the competence of the administrative judge. The study revealed that the criteria adopted so that the administrative judge can rule on a specific case have known in Morocco an evolution varying between the use of the organic criterion: identification of the authority, of the person at the origin of the dispute, and recourse to the material criterion which consists of an examination of the situations encountered, the material facts or the legal acts at the origin of the dispute.

Administrative Litigation in Lawsuits Related to Administrative Decisions

The importance of administrative dispute is related to administrative decisions, as the latter poses the most important means for the administrative authority to perform its duties and provide public services. Given the frequent state intervention in public affairs and its regulation of the multiple aspects of individuals’ private lives through administrative decisions, numerous disputes may arise between the administration and individuals or other persons of public law. However, due to the ambiguity surrounding the term administrative dispute as legislative relevant statements are lacking, particularly concerning its concept and criterion for its distinction from the rest of disputes, as well as concerning the administrative dispute parties and its elements, the research study this subject through two topics, the first addresses the concept of administrative dispute and its characteristics, while the second deals with the persons of administrative dispute. The study concludes that administrative disputes may arise between an administrative authority and a private law person, or between two administrative parties, and administrative judges enjoy a broad competence in these types of disputes to rebalance the relation between both dispute parties. It also reached several recommendations which enhance the procedural aspects of administrative disputes when taking them into account, particularly in Iraq and the Kurdistan Region.

경찰기관 정보공개 처분의 실태와 시사점

The purpose of this study is to guarantee the citizen's right to request information disclosure by illuminating the actual situation of illegal or unreasonable disclosure of information by police agencies that perform the duties of maintaining public peace and order. This study examines the information disclosure procedures of public institutions and administrative judgment, which is a means of dissatisfaction with police dispositions, and examines the actual status of illegal or unjust information disclosure dispositions by police agencies through the analysis of 22 rulings of the Administrative Appeals Commission. Policy suggestions were made after reviewing the implications. When a citizen who is guaranteed the right to know requests information disclosure to the police agency, the police agency and the person in charge of information disclosure must comply with the information disclosure procedures and methods in accordance with the law and decide whether or not to disclose information. If a person requesting information disclosure is dissatisfied with the disposition of information disclosure by the police agency, he/she may request an administrative adjudication to the Administrative Appeals Commission. The Administrative Appeals Commission, which received the request for administrative adjudication, reviews and decides on the illegality or injustice of the information disclosure disposition of the police agency. In 2021, the Central Administrative Appeals Commission ruled citing or partially citing 22 cases regarding illegal or unreasonable police agency information disclosure dispositions. The implications derived from this analysis are as follows. First, there is a misunderstanding in the application of legal principles of information disclosure laws as some police agencies are refusing to disclose information by ‘without revealing specific reasons for non-disclosure’ or ‘misjudging information subject to disclosure or disclosure’. In addition, some information disclosure managers of police agencies did not comply with the procedures set forth in the Information Disclosure Act and violated them. In addition, some insufficient matters were confirmed in the management of re-disposal according to the purpose of the administrative ruling adjudication of the police agency. Based on the matters reviewed above, the proposals for the disposition of information disclosure by police agencies can be summarized as follows. First, it is necessary to collect and analyze cases of illegal and unfair rulings by police agencies every year, to produce a casebook of administrative judgment rulings on police information disclosure, and to prepare a system for regular education. Second, it is necessary to examine whether disciplinary responsibility exists for those who have violated the duty of good faith or the duty to comply with the law, which was revealed through the ruling by the Administrative Appeals Commission citing the disposition of illegal or unreasonable information disclosure by the police agency. Third, it is necessary to establish a management and supervision system that can fulfill the duty of redistribution stipulated by law according to the purpose of the ruling specified in the disposition of illegal or unreasonable information disclosure by the police agency.

개발행위허가에 관한 항고소송에서 사법심사와 증명책임

The burden of proof is a matter of which of the parties to the lawsuit is to be disadvantaged if the court cannot obtain certainty about the existence of essential facts in the final stage of the lawsuit. Furthermore, the burden of proof becomes the standard of action for the court and the parties throughout the entire process of litigation, and becomes an indicator of litigation command by the court and a goal of proof activities for the parties.
 Recently, the Supreme Court did Judgement that the broad deference should given to the legal requirement of environmental impact having prospective character and that the complainant should the burden of proof for the abuse of discretion. In environmental litigation, it is difficult to prove the causal relationship of environmental pollution, and protection is not sufficient with follow-up measures for environmental damage. In consideration of such points, it is persuasive to first respect the administrative judgment on environmental damage, and to judge that the decision is illegal only when it is unreasonable. However, when the burden of proof is heavy on one party, the possibility of remedies may be excessively limited.
 In the refusal of beneficial administrative acts corresponding to permits such as development permits, it is necessary to fairly distribute the burden of proof by considering the specificity of the appeal suit, the difficulty of proof, and the probability of factual existence.
 On the premise of the distinction between discretion and margin of judgment, the determination of whether or not the standards for permitting development activities are satisfied is a matter of judgment of a certain indeterminate concept among the action requirements.
 It is appropriate for the administrative agency to bear the burden of proof in cases where the margin for judgment is recognized as an area of professional and technical judgment. However, the planning act aspects of development permission should be considered. In terms of procedural legal control of planning discretion, the object of proof should be limited to the logical and technical validity of the judgment process or judgment method of disapproval decision.

THE PRUDENCE OF ADMINISTRATIVE JUDGES IN APPLYING E-GOVERNMENT INFORMATION TECHNOLOGY

This study analyzes digital evidence in the judicial process. The application of information technology (e-government) is a must for state administrators, both the judiciary, the legislature, especially the executive. In resolving state administrative disputes, digital evidence is also often used. This requires judges to have the ability to examine and analyze a case that has a digital element. Preparation of the Supreme Court to respond to developments in digitalization of electronic services (e-government), namely the Supreme Court has issued PERMA Number 1 of 2019 concerning Electronic Administration of Cases and Trials in Courts. This time, the E-Court is a form of the Supreme Court's seriousness in reforming the Supreme Court in the field of information technology in the justice system. Efforts that can be made by Administrative Court Judges in the digital era, Administrative Judges must pay attention to the e-government system as a whole, for example Online Single Submission (OSS) licensing, because licensing now involves an integrated online system, which involves elements of regional government, provincial government and government center. how to upload data, the possibility of an error in the system, what is uploaded, how the system can reject and accept data. It is these things that allow administrative judges to involve Web experts. Digital Web forensic experts are needed in proving cases at the Administrative Court, because in my opinion it is almost impossible for an administrative judge to have good and correct knowledge of digital forensics. Web expert witnesses will shed light on an administrative case, making it easier for State Administrative judges to make decisions. The Supreme Court should hold education and training regarding online licensing, online registration, online validation carried out by the executive, and administrative judges should not hesitate to present web expert witnesses to explain an administrative case.

Preliminary Reference on Validity and the National Court: What Contribution to the Rule of Law and Effective Judicial Protection in the EU? A Focus on the French Administrative Judge

Preliminary Reference on Validity and the National Court: What Contribution to the Rule of Law and Effective Judicial Protection in the EU? A Focus on the French Administrative Judge

THE PRUDENCE OF ADMINISTRATIVE JUDGES IN THE DIGITAL EVIDENCE IN THE ERA OF APPLYING E-GOVERNMENT INFORMATION TECHNOLOGY

In this research, the use of digital evidence in courts is studied. State administrators, including the executive and the legislative, must use information technology (e-government), especially the judiciary. Digital evidence is also frequently utilised to resolve administrative disputes between states. Judges should be able to look over and evaluate cases that involve digital evidence in order to do this. The Supreme Court has issued PERMA Number 1 of 2019 concerning the Electronic Administration of Cases and Trials in Courts in order to get ready to adapt to changes in the digitalization of electronic services (e-government). This time, the Supreme Court is taking reforming the justice system’s information technology field seriously as seen by the E-Court. Administrative Court Judges can make an effort, but in the digital age, Administrative Judges must pay attention to the entire e-government system. For instance, licencing now involves an integrated online system that includes components of the regional government, the provincial government, and the government centre. These factors make it possible for administrative judges to consult with web professionals. Because it is virtually difficult for an administrative judge to have good and accurate understanding of digital forensics, digital web forensic experts are required when proving matters at the Administrative Court. Web-based experts will provide insight into a case, assisting State Administrative judges in making judgements. The Supreme Court should hold education and training regarding online licensing, online registration, and online validation carried out by the executive. Administrative judges should not hesitate to present web expert witnesses to explain an administrative case.

The systematic treatment of the problem of implementing administrative provisions in light of the issuance of the Administrative Execution Law for the year 1443 AH IN SAUDI ARABIA

This research addresses the implementation of administrative judgments and is therefore of the utmost importance to the extent to which the Administration respects judgments that possess the force of the judgment. This is a manifestation of the rule of law and institutions. It is a measure of States' classification. The aim of this research is to know how administrative judgments are enforced, especially those against the administration, and what mechanisms have been put in place by the Saudi organization to deal with the phenomenon of refraining from executing administrative judgments. The adequacy of the safeguards and means adopted by the implementation system before the courts of the Ombudsman's Office in order to compel the Administration and the Public Officer to implement in case of unjustified failure to implement.

Who Controls the Immigration Bureaucracy? The Relative Influence of the Three Branches Over Asylum Policy Implementation

At the center of contentious debates concerning U.S. asylum policy are immigration judges, bureaucrats who decide life and death cases on a daily basis. Congress, the executive and the courts compete for influence over these key actors — administrative judges distinct from those examined in much of the bureaucratic control literature. They are hired, fired, promoted or demoted by executive officials; face congressional oversight; and must follow circuit law. We argue that, because of the fear of reversal, immigration judges will look most to the courts in the decision-making process. Our results support our theory. Examining over 900,000 immigration judges’ decisions, we find that, although IJs are influenced by a fear of pushback from the elected branches, the impact is conditional on circuit preferences. Our findings inform scholarly understanding of judicial behavior and bureaucratic accountability, and support the pursuit of judicial independence and due process in immigration courts.

Just another benefit? Administrative judges’ constructions of sameness and difference in asylum adjudications

ABSTRACT This ethnographic study examines how Swedish administrative judges apply the principle of treating like cases the same and unlike cases differently when adjudicating asylum claims. The findings suggest that judges construct asylum claims like citizens’ claims for welfare benefits and unlike protection claims made by citizens. Drawing on Hannah Arendt’s critique of the state-centric foundation of contemporary human rights framework, I demonstrate that the Swedish asylum procedure is structured according to a similar state-centric foundation. Therefore, it reinforces injustices that exist between those who belong to a political community and those who stand outside that community asking to be let in. This study contributes to previous research on asylum adjudication by shedding light on structural injustices embedded within legal practices rather than searching for explanations in extra-legal factors. The implication of this approach is that it makes visible a paradox: that judges’ commitment to procedural justice principles can perpetuate structural injustices.

Making sense of noncitizens’ rights claims in asylum appeal hearings: practices and sentiments of procedural justice among German administrative judges

ABSTRACT Ethnographically exploring how German judges in administrative courts of first instance navigate the practical, political, legal and ethical dilemmas of deciding on asylum appeals, this article identifies the oral hearing in asylum adjudication as a site of citizenship struggles in which rights claims by noncitizens undergo subtle transformations through the manner in which procedural rules are interpreted and enacted. Building on observations of asylum appeal hearings, conversations and focus group discussions with judges, I show that practices and sentiments of procedural justice among asylum appeal judges are at the core of these transformations. Hence, I argue for renewed analytical and conceptual attention to citizenship struggles that take place in webs of social relations within the realm of state law and across a graduated set of formal legal statuses for noncitizens.