Administrative Law Doctrine Research Articles

Lawsuit as a means of protecting violated rights in administrative proceedings

The article is dedicated to the study of a lawsuit as a means of protecting violated rights in administrative proceedings. Considering the amendments to the legislation, the issue of the significance of a lawsuit in the context of protecting violated rights in administrative proceedings has become increasingly relevant. Under the previous version of the Code of Administrative Procedure of Ukraine, a lawsuit was the foundational document, without which the protection of violated rights in administrative proceedings would be nearly impossible. It has been demonstrated that the current version of the Code of Administrative Procedure of Ukraine has significantly detailed the right to apply to the court, particularly regarding the potential application of remedies by the court. A lawsuit, serving as the basis for initiating proceedings, addressing the case on its merits, and rendering a court decision, is a crucial tool in raising the question of whether the administrative court should apply remedies to protect violated rights. Simultaneously, the administrative law doctrine posits that an administrative lawsuit itself should be viewed as a means of protecting violated rights. The author observes that doctrinal provisions, grounded in the current administrative procedure law and supported by an analysis of administrative court practice, indicate that an administrative lawsuit significantly influences the activities of an administrative court, particularly in its application of remedies to protect violated rights. Furthermore, some scholarly sources add that the importance of a lawsuit lies in its ability to guide the court’s actions and provide individuals with appropriate guarantees. The author emphasizes that these doctrinal principles align fully with the provisions of the Code of Administrative Procedure of Ukraine, which is considered a conceptually comprehensive procedural document.

Concept of the migration security in legislation and in the doctrine of administrative law

Concept of the migration security in legislation and in the doctrine of administrative law

Artificial Public Administration – Myth or Reality?

The computerization of public administration tasks is a reality. In contrast, the intelligence of public administration is shrouded in myths. For many decades, administrative science has contributed to the clarification of this distinction. Digital constitutionalism and technology-oriented administrative law doctrine have recently been added to this research. The basic regulations, proposed and adopted within individual states, in the European Union and in international organizations, whether it concerns the protection of personal data, cyber security, or artificial intelligence, do establish new tasks for public administration, but they affect methods rather than forms of administrative activity. Emerging technology raises concerns about the ability to understand artificial reasoning and its methods of classification, personalization, and prediction. It is questionable to assume that all actions can be quantified and thus everything becomes objective. Technology compounds the situation and has its own imperative.

Zawiadomienie rzecznika dyscyplinarnego na podstawie art. 75. ust. 2a Karty Nauczyciela

In this publication, most of the considerations are devoted to the premises that make it necessary to take legal action by the school headmaster and discuss formal and legal actions related to notifying the disciplinary spokesperson of an act violating the rights and welfare of a child. The article basically consists of two parts. The first one discusses the material grounds for notifying the disciplinary officer. In turn, the second part deals with the formal and legal requirements of the notification. The publication also thoroughly analyzes the role of the director as a body that initiates explanatory proceedings before the disciplinary ombudsman. Therefore, considerations of the doctrine of administrative, constitutional and criminal law are presented. In addition, several key judgments of the Constitutional Tribunal and administrative courts are included.

IS A RESOLUTION OF THE MUNICIPAL COUNCIL CONCERNING A PERIODIC SPORTS SCHOLARSHIP FOR INDIVIDUALS ISSUED UNDER ARTICLE 31(3) OF THE LAW ON SPORTS OF JUNE 25, 2010 A LOCAL LAW?

The purpose of this article is to review and analyze the statements of doctrine and case law on local laws. In addition, the author in the study attempted to assess the legal evaluation of the resolution of the municipal council issued under Article 31 paragraph 3. of the Law of June 25, 2010 on sports, establishing and financing periodic sports scholarships for individuals through the prism of the features characterizing acts of local law, developed by the doctrine of administrative law. The considerations contained in the work support the claim that this normative act has all the characteristics that characterize this source of universally binding law. The analysis of the problem was made primarily on the basis of Polish legislation, case law and doctrine. The inclusion of administrative-legal aspects in the study of the sports scholarship issue complements the legal-financial and physical culture research.

The National Police in the system of administrative delinquency prevention subjects

The article notes that the introduction of martial law in Ukraine has changed the approach to the organisation of police work, since domestic law enforcement agencies have faced challenges previously unknown to science and practice, in particular, in the area of prevention of administrative delinquency among internally displaced persons, in the de-occupied territories, and in the context of hostilities, which required new algorithms and approaches, as well as consideration of the priorities and principles of activity.
 It is emphasised that in order to ensure the widest possible consideration of the fundamental principles, including the rule of law, police activity should be based on a coherent and consistent system of indicators which is relevant to modern socio-political realities. An important indicator of police activity is the effectiveness of work in the area of prevention of administrative delinquency. Measurement and analysis of this indicator are rather complex processes, as they are carried out not only within the framework of police activities, but are also largely related to the functioning of civil society institutions, educative, cultural, scientific and educational institutions and organisations, including international ones, which focus their activities on solving urgent problems that constitute the social basis of administrative delinquency.
 It has been noted that prevention of administrative delinquency is a complex category which should be considered through the prism of a system of organically interrelated actors at the level of understanding a wide range of relations between them, including police bodies and units. It has been emphasised that such a system should be based on the principles of equality, broad public participation and be coordinated by collectively formed management centres at the level of the State or a particular area (region, community).
 The areas for further development of police activities in the field of prevention of administrative delinquency include a set of organisational and administrative measures related to the need to ensure the rights and freedoms of internally displaced persons, prevention of bullying under martial law, and widespread application of the programme approach both in administrative law and administrative law doctrine.

The concept and the essence of principles of administrative-law regulation

The article revolves around the nature and the essence of the principles of administrative-law regulation. The basic role of the principles of administrative-law regulation in ensuring the system organization and development of domestic administrative law, administrative legislation, administrative-law doctrine, rule-making activity and law-enforcement practice is revealed. The problem of the lack of a single concept of the principles of administrative-law regulation both in the doctrine of administrative law and in modern legal practice is highlighted. The need to develop a unified approach to understanding the principles of administrative-law regulation, based on advanced achievements of modern jurisprudence and objective realities of legal practice, is substantiated. The primary importance of applying such an approach in administrative law-making and law enforcement, in particular, in jurisdictional activity, is emphasized.
 The most well-known and widespread definitions of the concept of “principles of administrative-law regulation” are analyzed. A conclusion is made about the cardinal differences of modern scientific views on the nature, essence and system of principles of brunch regulation. Such difference does not allow to build a coherent doctrinal concept based on their simple generalization.
 The impracticality of identifying the principles of administrative-law regulation with normative rules, objective regularities of administrative legal relations, grounds for the emergence of such relations, as well as with the principles of public administration (principles of administrative activity) was established. It is emphasized that a comprehensive scientific understanding of the principles of administrative-law regulation should be based on a general theoretical understanding of the principle, as the basic grounds, the original idea, which are characterized by universality, general significance, higher imperativeness and reflect the essential provisions of theory, doctrine, science, systems of national and international law , state legal policy, policy of development of branches and institutions of law.
 The author’s definition of the principles of administrative-law regulation is formulated. An approach is proposed, according to which the principles of administrative-law regulation are considered as: fundamental ideas underlying the development and functioning of administrative law and all its institutions, a system of administrative-legal relations, realization of the rights, freedoms and legitimate interests of their participants, law-making and law-enforcing activities subjects of public authority.

Administrative contracts in the doctrine and system of sources of administrative law of Germany and Ukraine

The article is devoted to the analysis of the doctrinal concept and legislative definition of the administrative contract in the legal systems of Germany and Ukraine, as well as the place of this institution in the system of sources of administrative law of Ukraine. It has been established that recently the influence of the legal doctrine of the Federal Republic of Germany on the administrative law of Ukraine has significantly increased, and it no longer sees “power relations” in the relations between subjects of state power and citizens, and therefore, the concept of proportionality acquires a wider meaning. Under such conditions, an administrative contract is not inferior to an administrative act in its rule of law value. The two-level model of legal regulation of administrative contracts in the Federal Republic of Germany is analyzed, as well as the legal position of the Federal Supreme Court on the applicability of civil law norms in the public sphere. The importance of the place of the public-law contract and its administrative procedure in the Law “On Administrative Procedures” of the Federal Republic of Germany is revealed. A description of the ontological, subject, and methodological criteria for the identification of administrative contracts in the domestic doctrine of administrative law is given. It is proved that the problem of legal regulation of an administrative contract in the Ukrainian legal field should be considered through the prism of three main models of systematization of administrative and procedural legislation, which are used in the legal systems of different countries of the world. Corresponding improvements in legal regulation and own vision of the prospects for the codification of legislation on administrative contracts in the legal field of Ukraine are proposed.

Immigration Law Exceptionalism and the Administrative Procedure Act

Abstract Immigration law is exceptional enough to deserve an administrative law focus of its own. The Administrative Procedure Act (APA) does not demand uniformity in adjudication. Therefore, it may be counterintuitive to argue that any one area of administrative adjudication is exceptional. Removal adjudication is indeed exceptional because it is an extremely dysfunctional system, it operates in a double void of fewer constitutional protections and without the protections of the APA, it relies on a vast network of civil detention, and it is of a different genre than the type of regulation that drove the development of the APA. The exceptionality of removal adjudication demands a review of administrative law doctrine with this exceptionality in mind.

THE PASSAGE OF TIME AND GUARANTEES OF COMPLIANCE WITH PROCEDURAL STANDARDS IN THE GENERAL ADMINISTRATIVE PROCEDURE

The issue of the passage of time and its impact on an administrative act is extremely important for administrative law. This issue is related to the durability of an administrative decision, which a public administration defines the rights and obligations of individual entities in specific cases. In the doctrine of administrative law, the concept of correct decision is adopted as a decision that meets all the conditions required by law, including that it was issued in compliance with procedural standards. Compliance with the rules of procedural law is guaranteed by the institution of reopening administrative proceedings, the structure of which is based on procedural and substantive deadlines. Procedural deadlines, which determine the possibility of initiating the proceedings itself, and substantive deadlines, which condition the elimination from the legal market of a final decision issued in violation of procedural law norms. The article presents the problems of the indicated terms and problems related to them.

Constitutional Framework for Planning Acts as Legal Forms of Administration’s Activity in Environmental Protection (on the Example of Poland)

Planning acts constitute a very important instrument for conducting environmental protection policy in Poland. Despite the relative freedom of public authorities in shaping their provisions, these acts are adopted on the basis of explicit authorisations contained – in principle – in universally binding law, primarily in statutes. The aim of the article is to draw attention to the fact that a quite detailed normative framework for adopting environmental planning acts is also present at the level of the Constitution of the Republic of Poland. Determining its scope, however, requires defining the legal nature of the indicated acts, which is an issue that raises certain problems. They are visible especially in the context of the administrative law doctrine.

Theory of Administrative Discretion: the Stages of Formation

Administrative discretion is an important construction of modern administrative law, the formation of which in many respects can be viewed as a “struggle” to limit the discretionary powers of the subjects of state administration. It is well known that good governance would be impossible without administrative discretion. There are four stages in the development of the modern theory of administrative discretion and each stage was devoted to one aspect of this one but these stages did not coincide chronologically and developed in parallel. They had a different methodology, which was used by the founders and followers of the approaches prevailing at each stage. The first stage started in France and formed by the 18th century. This related to the concept of prudent governance exercised prudent officials who were ruled by enlightened monarch. Their decisions were not reviewed by the courts. The principle of reasonable is the modern result of this stage – an absolutely unreasonable administrative act is null and void. The second stage developed in parallel with the first one but formed by the 19th century. Administrative discretion was formed as legal concept on this stage, and it was presented as free discretion, which also could not be a subject to judicial review. The third stage, characterized by competition between administrative justice and free discretion, took place at the end of the 19th and the middle of the 20th. Judicial possibilities for reviewing discretionary acts gradually expanded, criteria for evaluating such acts were created. These criteria were incorporated into the laws and legal judicial positions after the fourth stage began. The creative side of discretion has become a very important part of this legal construction, administrative discretion at this stage is defined as a way of laws concretizing. Nowadays, the third and fourth stages are developing in parallel in Russia. It should be noted that the Russian administrative law doctrine was formed as a common doctrine Civil Law system. Russian authors always used the methodology of Civil Law system, developed it, but they paid attention to the specifics of our administrative law, our governing and historical development. Nevertheless, Russian doctrine needs more research in order to create more legally formalized administrative discretion. As a result, the legislature and courts should receive academic decisions suitable for implementation.

THE ROLE OF LAWYERS IN THE SPHERE PUBLIC LEGAL RELATIONS

The article analyzes the role of advocacy and the functioning of advocacy in the system of public legal relations. The need to determine the appropriate role of the legal profession in the system of public legal relations is determined by the nature and development of the legal profession in the conditions of economic and political transformations taking place in the country, the intensification of political and legal life, and the emergence of new aspects of the life of society. The principled positions and evaluations made in the study are conditioned by modern theoretical views on advocacy as a non-state, independent, self-governing institution that aims to implement the constitutional guarantee of providing qualified legal assistance, court representation and protection. The performance of these functions requires establishing the status of sufficient autonomy of the bar, a certain level of its independence from state authorities, and the development of bar self-governance. The relevance of the researched topic is that in the Ukrainian doctrine of administrative law, the approach to understanding the essence of public-law relations is changing and there is a need for its modernization, which would allow directing the activities of the subjects of power, during the performance of the functions assigned to them, in the direction maximum provision and promotion of the rights and freedoms of the citizen. It is the lawyer's activity and the lawyer's participation in public legal relations that are an important element in the system of protection of legal rights and freedoms of citizens. At the same time, in order to implement his human rights activities, the role of the lawyer himself in the field of public legal relations should be regulated by legislative norms. The bar plays a significant role in the field of public legal relations and is designed to contribute to the protection of the legal interests of citizens, primarily of this society and the state, it plays a fundamental role in observing and establishing the rule of law and human rights and freedoms. This is a complex manifestation of both state and public interest, because it is thanks to the legal profession that the legal state truly fulfills its duty to ensure the right and freedoms of its citizens. On the one hand, the activities of lawyers have a constitutionally determined and state-significant significance, and on the other hand, lawyers must be as independent as possible from the state in order to effectively protect citizens and legal entities from administrative arbitrariness. The bar, by its very nature, is a unique legal structure, the only organization that performs a public-legal function. On the contrary, the legal profession distances itself as much as possible from the state apparatus.

Історико-правовий аналіз адміністративно-правової природи координаційної функції держави щодо протидії корупції

The research paper examines and carries out atheoretical generalization of the scientific importance of various historical and legal views on the concepts and features of the administrative-legal and coordination function of the state based on the analysis of achievements in the legal doctrine of administrative law. The problematic aspects of historical-legal and administrative-legal provisions of the coordination between the entities of the corruptioncounteraction are analyzed in the article. It is noted that the history of the corruption emergence and attempts to combat this phenomenon is inextricably linked with the history of civilizations and the emergence of the state, thus, the history of attempts to counteract corruption at the state level is at least four and a half thousand years old. It is worth emphasizing that even before the beginning of our era, in the most developed states attempts were made to form, if not a full-fledged anti-corruption mechanism, then at least a system of punishments for corruption offenses. Over the past millennia, dozens of approaches to solving the problem of corruption have changed. However, corruption is a widespread notion in every country of the world nowadays, and the issue of effective countermeasures remains relevant. It becomes obvious that the coordination role of the state in corruption counteraction is not an exclusively theoretical category that is implemented in specific administrative and legal forms under which subjects exercise their state-authority powers. In addition, coordination should replace state influence in the areas whichpreviously were characterized by direct management relations between subordinate entities - state administration authorities and all other managed subjects, in particular economic entities. At the same time, taking into account historical analysis of the research, the importance of state interests occurs both in the case of fully legally equal subjects, and in relationships where such equality is conditional and exists in individual specific relationships. The coordination role of the state is a special function of the state, which is manifested, firstly, in the activity of the state apparatus, and secondly, in the regulation of social relations using the appropriate management method.

Estados de excepción y la lucha contra las inmunidades del poder: COVID-19 en Ecuador

The general objective of the research consists of relating the states of exception with the doctrine of administrative law, exposed by García de Enterría (2016), called fight against the immunities of power, in order to conceptualize the decrees with force of law on states of exception; with special reference to the decrees with force of law on states of exception for public calamity pandemic COVID-19, issued by the President of the Republic of Ecuador throughout the national territory, during the period from March 17, 2020 to September 1, 2020. The methodology refers to the documentary research strategy, supported by the analytical method. It is concluded that the COVID-19 pandemic puts at risk the existential conditions of the State: population, territory and government, due to the immediate spread of the coronavirus and the President of the Republic of Ecuador finds himself in the need to dictate acts of normative content, subject to internal - political and legal - and international control, containing measures of restriction and suspension of rights in a discretionary manner and with regulated elements, based on the principle of proportionality, called decrees with force of law on states of exception.

The existence and urgency of administrative efforts in the administrative justice and regulation

One of the elements in a legal state is the separation or division of power (machtenscheiding), in the sense that each state institution is formed with separate functions and powers or is divided independently and does not interfere with each other (van der Burg et al., 1985). One of the characteristics of the concept of the welfare state is the government’s obligation to seek the general welfare, or bestuurszorg (Utrecht, 1985). Along with the government’s obligation to strive for the welfare of the community, the goal is that the government not only implements the legal provisions that have been made by the legislature but is also attached with authority to make laws and regulations, especially in the form of implementing regulations, policy regulations, and various decisions. The method used in this research is to use a descriptive-analytical approach, which is used to examine the provisions of the relevant legislation and literature. In accordance with the doctrine of Administrative Law, administrative efforts are part of the government’s task. The importance of administrative efforts, among others, lies in their complete examination, which includes policy and legal aspects and can immediately change, correct, or even revoke disputed decisions.

ПЕРСОНАЛЬНІ ДАНІ ГРОМАДЯН ТА ЇХНЯ КЛАСИФІКАЦІЯ В СУЧАСНІЙ ДОКТРИНІ АДМІНІСТРАТИВНОГО ПРАВА

The paper is dedicated to issues on determination of citizens' personal data, and classification of its in current doctrine of Administrative Law. There is stressed, the search of the model of legal mechanism of relationships of personal data protection regulation has place in the domestic legal science. This model should agree with international legal standards and guarantee an effective protection of human and citizen rights and freedoms. As a result, it has to become a part of implementation of the national legal system in European legal field. There is outlined, the administrative and legal provisions of relationship on personal data circulating and processing provides an effect on relationship of legal means with administrative and legal features. An analysis of doctrinal definitions demonstrates a versatility of the definition of personal data. The social and legal nature is reflected in it. There is identified, personal data is any information in objective form which provides possibility to determine its information source, and related to a subject of data. The subject of personal data is an identified or such who can be identified natural person (citizen), in relation to whose public authorities and other authorized subjects are endowed with subjective obligation of providing appropriative level of organizational and legal safety and protection. There is emphasized, citizen personal data have such signs as: informational content i.e., on the point of view of majority scientists, personal data are information or set of information (including any information) about a person; identifying feature; fixed form and reflection in specific source (data carriers); inexhaustibility; acquire the legal regime of personal data when personal data processing starts i.e., any action or set of such actions as collection, registration, accumulation, saving, adaptation, changing, renovation, use and spread (distribution, implementation, transfer), depersonalization, utilization, including use of information (automatized) systems. Taking into account the analysis of legal nature of personal data on the point of view of the Administrative Law, doctrinal approaches, and international and legal regulation, we can suggest to separate personal data into the following groups, using criteria of their content and level of established "availability". These groups are: general (or publicly available), special, and biometrical. At the same time, biometrical personal data include genetical data about a person, and data related to the health or medical data of citizens.

DISMISSAL OF A PERSON FROM THE PUBLIC SERVICE AS AN OBJECT OF ADMINISTRATIVE AND LEGAL REGULATION

The article provides a structural analysis of the administrative and legal regulation of the procedure for the dismissal of a public servant from a position. It is emphasized that in the doctrine of administrative law there are significant gaps in knowledge about the peculiarities of the legal regulation of relations of dismissal of a person from public service. It is proposed to distinguish three levels of administrative-legal regulation of public relations regarding the dismissal of a public servant from his position: 1) public relations, which are actually regulated by the norms of administrative law (the subject of administrative-legal regulation); 2) social relations that are not regulated, but must be regulated by the norms of administrative law (the sphere of administrative-legal regulation); 3) social relations that are not directly regulated by legal norms, but are indirectly influenced by other legal relations (object of administrative and legal regulation). In particular, according to the subject of legal regulation in the system of administrative law, the legal institution of dismissal of a person from public service is dis­tinguished, which regulates official relations regarding the procedure for dismissal on legal grounds of a public official from a position. The need to consider social relations that arise when a person is dismissed from public service through the prism of the object of administrative and legal regulation is substantiated. It was concluded that the object of administrative-legal regu­lation of the dismissal of a person from public service positions is a synthesis of, firstly, social relations that are already regulated by administrative law (the subject of administrative-legal regulation), and secondly, social relations that require administrative - legal regulation (the sphere of legal regulation), and, thirdly, social relations that are not regulated by administrative law, but feel its indirect influence. It was found that the subject of administrative-legal regula­tion indicates the result of legal regulation of relations regarding the dismissal of persons from public service positions, the sphere of administrative-legal regulation - about the existence of gaps in the grounds and procedure for the dismissal of public servants from their positions, and the object of administrative- of legal regulation - about the presence of a positive or nega­tive indirect influence of the norms of administrative law on other social relations that are not regulated by law.

Glosa aprobująca do wyroku Naczelnego Sądu Administracyjnego z 1 grudnia 2020 r., sygn. akt II OSK 1580/18 – Niedopuszczalność stosowania wykładni zawężającej wyrażenia „działka sąsiednia dostępna z tej samej drogi publicznej”

The cited judgment of the Supreme Administrative Court focuses on the meaning of the expression “access from the same public road”. The judgment of the Court of Second Instance deserves to be approved because the recitals of this judgment take into account the right to develop the plot to which the investor holds the legal title, the broad understanding of ‘neighborhood’, as well as the values that constitute the ratio legis of the Act on spatial planning and development.The rationale of the Supreme Administrative Court’s decision results primarily from the fact that a narrow understanding of neighbourhood which is prompted by the linguistic interpretation was not deemed sufficient. Referring to the jurisprudence, and above all the legislative activity of the Supreme Administrative Court and the doctrine of administrative law, it should have been concluded that the effects of the linguistic interpretation were legitimately checked from the point of view of the legislator’s goal when enacting the Act on Spatial Planning and Development. Therefore, it was necessary to make a purposive interpretation that justifies the need to take into account the right to develop a building plot, take into consideration values such as spatial order, sustainable development, ownership and public interest, as well as the interest of third parties.The position of the judgment under review is not uniform in the jurisprudence. However, it does take into account the need to weigh up the disputed interests. Although the right of ownership is significantly limited in the planning and legal regulations, it is unacceptable to deprive it of its use only due to the assumption that neighbourhood should be understood as the contact of two plots or their access to the same public road.

Bank Supervision and Administrative Law

This Article presents a systematic consideration of how administrative law doctrines apply to banking supervision, an unusual form of administrative practice that rests on an iterative relationship between banks and supervisors. First, it describes the rationales for, and process of, bank supervision. Second, this Article uses recent administrative law arguments lodged by banking interests against key supervisory practices as the springboard for an analysis of why our largely “trans-substantive” administrative law can be problematic in the context of specific mandates given by Congress to administrative agencies. It argues that courts considering how administrative law doctrine applies to agency practices must contemplate more fully the substantive law the underpins the mission and organization of the agency. When these statutory provisions are taken appropriately into account, arguments that supervisory practices are consistent with administrative law requirements are substantially strengthened. Third, this Article demonstrates how even a more tailored application of contemporary administrative law doctrines would miss a critical feature of banking supervision—that it is premised on an ongoing relationship between banks and supervisors. Judicial review of agency action usually focuses on discrete agency actions, thereby eliding this critical fact. As a result, administrative law doctrines such as the “practically binding” test for agency guidance are peculiarly inapposite. Lastly, this Article offers a tentative proposal for shifting the administrative law review of supervisory actions to focus on how banking agency processes manage the iterative nature of the supervisory relationship.