Administrative Law Reform Research Articles

CLASSIFICATION OF SUBJECTS OF ADMINISTRATIVE LAW AND THE PLACE OF A LAWYER IN IT

The relevance of the studied topic is that subjects of administrative law are one of the most important elements of the legal system, since we are talking about such participants in admin­istrative-legal relations who solve tasks and perform the functions of executive power, who co­ordinate administrative and control-supervisory powers in branches of state administration and local self-government, consider cases of administrative offenses committed by individuals and legal entities in various spheres of public life, etc. It is important to clearly classify the place of each element of the system of administrative legal relations, in order to understand the direct powers and duties assigned to it. Without a deep understanding of the assigned role by each participant in administrative and legal relations, the very functioning of such a system is at risk. The main problems that need to be considered and solved at the new stage of the develop­ment of modern science and practice include the definition of subjects of administrative law, the analysis of their essence and features, as well as the outline of the main criteria for clas­sification. A necessary condition for the successful reform of administrative law as a fundamental branch of Ukrainian state law is the updating of the provisions of the theoretical and method­ological base of administrative and legal science. The article examines the systems of classification of subjects of administrative law exist­ing in modern legal science. The essence and content of the concept of “subject of administra­tive law”, as well as generally accepted definitions of this term, were studied. An attempt was made to establish the place of a lawyer in the system of subjects of admin­istrative law of Ukraine. A comprehensive approach to distinguishing and classifying a lawyer as a subject of administrative law is applied, taking into account the peculiarities of legal status, organizational and legal form of activity and the scope of public powers. However, the analysis of special literature shows that only a few researchers tried to con­sider the lawyer as a subject of administrative law or to determine his place in the accepted classifications.

Administrative law reforms for enhancing business environment in Saudi Arabia

The economic landscape of Saudi Arabia has undergone significant changes in recent years, largely due to various administrative law reforms. The aim of this research paper is to examine the administrative law reforms in Saudi Arabia and their impact on the country's business environment. Based on the findings, the law reforms made in Saudi Arabia include initiating businesses, safeguarding the interests of minority investors, facilitating trade, ensuring contract enforcement, providing access to electricity, facilitating credit acquisition, granting construction permits, and resolving insolvency. Saudi Arabia should take steps to raise public awareness about corruption and establish more robust laws to safeguard whistleblowers. The country should also allocate resources to training programs and establish partnerships with advanced, specialized courts. Creating entrepreneurship programs and workshops to promote an entrepreneurial mindset in schools and the community is crucial. Saudi Arabia can create a favorable environment for economic growth and development by implementing these measures.

Addressing Disconnection: Automated Decision-Making, Administrative Law and Regulatory Reform

Automation is transforming how government agencies make decisions. This article analyses three distinctive features of automated decision-making that are difficult to reconcile with key doctrines of administrative law developed for a human-centric decision-making context. First, the complex, multi-faceted decision-making requirements arising from statutory interpretation and administrative law principles raise questions about the feasibility of designing automated systems to cohere with these expectations. Secondly, whilst the courts have emphasised a human mental process as a criterion of a valid decision, many automated decisions are made with limited or no human input. Thirdly, the new types of bias associated with opaque automated decision-making are not easily accommodated by the bias rule, or other relevant grounds of judicial review. This article, therefore, argues that doctrinal and regulatory evolution are both needed to address these disconnections and maintain the accountability and contestability of administrative decisions in the digital age.

Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State (2020 Edition)

Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State (2020 Edition)

Особливості впливу діяльності ОБСЄ на реформування адміністративного права України

Журнал «Публічне право» – фахове періодичне (щоквартальне) юридичне видання. Авторські матеріали науково-теоретичного та практичного характеру, узагальнення судової, правореалізаційної та правозастосовної діяльності з метою розвитку української національної юридичної науки та практики, удосконалення чинного законодавства.

Migrationsverwaltungsrecht zwischen Beschleunigung und Effizienz

Migration law between acceleration and efficiency Efficiency and speed of decision making have been a recurrent theme of German administrative law reform since the 1970 s. Although migration law has long been the subject of acceleration efforts, this occurred largely outside the general efficiency discourse. In an effort to connect these two strands, this article first retraces the trends that the administrative efficiency discourse has undergone since the 1970 s and points out how the sectors of law driving it – environmental law, emission control, and economic regulation – as well as an economic paradigm have promoted an truncated understanding of efficiency as mere acceleration. In a second step, it shows that while the devaluation of procedure in the interest of speed does align with a German focus on subsequent judicial review, it neither does justice to the relevance of the procedure to the realization of fundamental rights, not to its specific performances: the development of substantive requirements, transparency, participation, legitimacy. Asylum law in particular has experienced a surge of acceleration measures since 2015, pushed by the consulting firm McKinsey. But its existential relevance for protection seekers and the particular dependency of the right to asylum on the asylum procedure require an especially rigorous examination. An efficiency concept geared merely toward acceleration cannot do justice to these specific challenges, as the McKinsey measures have demonstrated; the burden has simply been shifted on the courts. In its last part, this article therefore proposes a qualitative efficiency concept that bears in mind the entirety of the functions of the administrative procedure, takes into account the different requirements of the procedure in different sectors of law, and does not lose sight of the reciprocity between administrative and judicial procedure. Meanwhile, pilot studies from the Netherlands, Switzerland, and Germany show that a qualitatively efficient asylum procedure is not necessarily a slower or more costly procedure.

DER RENEUAL MUSTERENTWURF FÜR EIN EU-VERWALTUNGSVERFAHRENSRECHT – HINTERGRÜNDE UND AKTUELLER STAND

The paper focuses on administrative law reform within the European Union and raises this problem in the Central Asia countries: as EU advances with its codification and structuring on the existing principles and institutions, the countries of Central Asia start from scratch. A group of academics within the Research Network on European Administrative Law (ReNEUAL), starting with comparative law method, tries to use national administrative procedural laws, case law and principles of the administrative procedure of the European and national courts, as well as the relevant soft law, especially the “Ombudsprudence” aims, taking into account new communication technologies, at developing a relevant draft law. In its independent work between 2009 to 2014 the ReNEUAL network specified the constitutional principles for administrative procedures, naming proposed draft “self-administration law”. It deals with institutions, bodies, offices and agencies of the European Union in their relations with the public as well as various cross-cutting issues: rules on the consequences of procedural errors, use of undefined legal terms, optimization of the rules for complex processes. European Parliament’s legal committee made some reference to the ReNEUAL draft and also sought advice from members of the network. Later draft from Parliament, seen as less ambitious, stays within the basis of the currently applicable EU treaties, whereby the ReNEUAL draft would sometimes require changes to the treaty. The proposed ReNEUAL builds transparent basis for exercising human and citizen rights, helps ensure transparency and consistency of the EU administrative institutions. It could also serve as a catalyst for the reform of national administrative procedural laws. The European Commission not convinced that EU administrative law could be summarized in a single legal document, asked for a cost-benefit analysis and impact assessment and publicly consulted on the codification of EU administrative procedure from 15.12.2017 to 09.03.2018, publishing results in July 2018.

Integrasi Bangsa dan Neo Weberian State (NWS)

This paper aims to analysis that Indonesia as a strategic country, located between two continents and two oceans. Indonesia is high populations and has rich natural resources, so that it can be coveted by other countries. In 2043, Indonesia to be threatment from other world, because there has been a crisis of food availability, clean water, and energy. The influence of global era, open markets and liberal economic system have affected decreasing Indonesia’s nationalism (disintegration), made high poverty, lower of social welfare and only give the advantage toward capitalist groups. In addition, domestic issues, such as the SARA issue, are easily explored, resulting in political conflicts. The domestic, international and global problems will be the main conflict if it did not manage well and can to be disintegration of nations impact. Therefore, New Weberian State (NWS) Concept is expected to be a solution to prevent disintegration of Indonesia nations. NWS one of model for development countries with instruments rational, efficiency, effective, accountability and eigh principal to be implemented :1). Centrality of the State, 2). Reform and Enforcement of Administrative Law, 3). Preservation of Public Service, 4). Representative Democracy, 5). External Orientation Toward Citizens, 6). Supplemental Public Consultation and Direct Citizen Involvement, 7). Results Orientation, 8). Management Professionalism.

Brief Discussion of the Former Performance Appraisal System of Civil Servant under the Law Number 87/89/M in Macau

The Macau Special Administrative Region has experienced a large number of changes before and after the Transfer of Sovereignty over Macau from the Portuguese Republic to the People’s Republic of China during the late 1999s. One of the most significant changes within the government environment should be the reform of civil servant appraisal system. Currently, the civil servants in Macau are using the new civil servant appraisal system framework under the Law Number 31/2004 “Regime geral de avaliação do desempenho dos trabalhadores da Administração Pública”. As the new appraisal system attracts a large number of attentions for research, a satisfied number of literature reviews are stored in the current research bank. However, the literature reviews and research studies about the former civil servant appraisal system framework under the Law Number 87/89/M “Estatuto dos Trabalhadores da Administração Pública de Macau” were mostly written in either Chinese language or Portuguese language. Only very few English written research studies concern the former civil servant appraisal system under the Law Number 87/89/M “Estatuto dos Trabalhadores da Administração Pública de Macau”. Therefore, this paper provides the opportunities for international and English readers to understand the administrative law reform within the Macau environment.

Погляди на концепції реформування адміністративно-деліктного законодавства України

У статті розглядаються основні віхи нормативно-правового регулювання реалізації реформи законодавства про адміністративні правопорушення. Відзначається, що вказаному питанню приділена незначна увага, оскільки висвітлення напрямків реформування адміністративно-деліктного законодавства у рамках здійснення адміністративної реформи майже не здійснюється. Розглядаються доктринальні погляди на кодифікацію адміністративно-деліктних норм, зокрема шляхом створення ряду відокремлених кодифікованих актів та розпорошення норм в основних галузевих кодексах.

The "Reformation of Administrative Law" Revisited

The archetype of the New Deal agency, exercising neutral, technocratic expertise, no longer tenable. As Richard Stewart (1975. Reformation of Administrative Law, 88 Harvard Law Review 1667–813) noted 35 years ago, administrative law is undergoing a fundamental transformation. Following Stewart, the modern explanation in legal scholarship of the transformation that federal judges came to the rescue of the administrative state, actively intervening in the regulatory process in order to preserve key values which had been threatened by an admixture of internal pathologies and external (read: political) threats. We argue that the traditional explanation neglects a central aspect of the major transformations in American regulatory politics during the past half century—the critical role of Congress and the President in the reformation of both the American regulatory state and administrative law. The traditional explanation in legal scholarship, that courts implemented values and agendas separate from legislative aims, and hence separate from politics, flawed because it neglects the larger transformations, beginning in the 1960s and continuing over the next two decades, in American national politics. During this period, a wide range of new constituencies arose, including the environmentalists, consumerists. The courts’ role in the reformation must be seen in this broader political transformation of the 1960s and 1970s rather than in a court-centric perspective in isolation from the rest of the political system. We illustrate our thesis with nuclear power regulation, which demonstrates the critical, joint roles of entrepreneurs in Congress and the courts.

La Administración del reconocimiento mutuo. Un análisis a partir de la libre circulación de profesionales... hasta la unidad de mercado

The mutual recognition is a structural principle of the internal market that determines the terms in which the horizontal cooperative relations between national administrations take place. From this formal perspective, the principle has overcome its original conflictual legal nature, to assert their cooperative side, establishing rules for the «division of functions» between national authorities. In this paper the analysis takes as sectorial reference the free movement of professionals. This choice is not accidental, since the formal configuration of the principle has a decisive teleological orientation: the effectiveness of the freedoms of movement. That finalist element provides the basis for the reform of Administrative Law from an ex parte civium perspective whose premise is the choice of law in a context of competition between national legal orders. That decision, which exclusively corresponds to citizens holders of the rights recognized by the European Law, confers a decisive relevance to autonomy of the will, with consequences on the binding effect of legal provisions, or concerning the (non)exercise of powers as well as, in the framework of inter-administrative relationships, giving full effect to supranational administrative acts. Finally, the implementation of mutual recognition poses the generation of reverse discriminatory effects concerning similar domestic legal relationships. The avoidance of this consequence through voluntary expansion of mutual recognition is a solution that has been carried out to its ultimate expression with the Market Unity Act.

On the Problem of Russian Administrative Reform Implementation

The paper deals with some aspects of a contemporary russian administrative law reform. Special attention is paid to the legal questions of E-Governance and administrative procedure.

The Unwritten Constitution of the Fourth Branch

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.

Assessing administrative laws for forestry prescribed burning in the southern United States: a management-based regulation approach

SUMMARY Prescribed burning in forestry is a valuable land management tool that has been extensively used in Australia, Eurasia, and North America. Nevertheless, fire is inherently dangerous and may impose risk upon humans, properties, and other natural resources. With the case of southern United States, the objective of this study is to assess the trend of administrative law reforms for forestry prescribed burning within the theoretical framework of management-based regulation. A key finding is that existing regulations focus on the production and management process of prescribed burning to identify and reduce risk. They demand moderate resource commitments, and many are related to the planning stage of a burn rather than the implementation stage. These results will assist the public in comprehending the rationale and trend of administrative law reforms for prescribed burning. Countries facing similar challenges in achieving a sustainable growth of forest resources can also learn from these legal reform e...

Democracy and Organization: The Further Reformation of American Administrative Law

Democracy and Organization: The Further Reformation of American Administrative Law

China's refugee policy: pathways to reform

China's domestic refugee policy is at a critical juncture. On the one hand, China's policy towards North Korean refugees has attracted significant international criticism. On the other hand, China's more generous approach towards non-Korean refugees, together with broader administrative law reform and growing interest in international refugee law among Chinese scholars, suggests that substantial reform of China's refugee policy may not be far off. This article explores future pathways to reform of China's refugee policy at the national, regional and international levels. Whether China embraces a comprehensive refugee law in line with international standards may very well have ramifications for the progression of international refugee law in a region traditionally ambivalent towards its relevance and application.

Selective Adaptation of WTO Transparency Norms and Local Practices in China and Japan

This article focuses on the importance of Chinese and Japanese local practices, their regulatory infrastructure and local cultural norms related to transparency as factors in the selective adaptation of the World Trade Organization norms. International laws can acquire a variety of local meanings that require an understanding of the local history and culture in addition to knowledge of the local economy and laws. This article analyzes the selective adaptation paradigm, which allows for a determination of the extent to which noncompliance or less than full compliance can be attributed to the cultural particularities of states political factors such as the relationship between the central and local authorities. This article argues that a shift in perception of regulatory transparency norms in China and Japan has occurred, and that this shift has had important economic and political consequences internally and externally, which has brought about significant administrative law reforms and improved compliance with international norms.

The Reformation of English Administrative Law

This article examines the process of constitutionalisation that is ongoing in English administrative law. It does so by focusing on two key questions which, although hitherto largely overlooked by commentators, are beginning to receive attention in the courts. The first question - the 'sin' of omission - relates to the question of how the courts should respond when an agency has not consciously approached a decision through a rights-based framework. The second question - the 'sin' of commission - asks how courts should respond when an agency explicitly reaches a decision on the basis of rights and proportionality. The answers we give to these questions will help to define the nature of the emerging 'culture of rights'. Staking out a position against 'hardline' proponents of rights-based judicial review, I suggest, first, that agencies should not be placed under a duty to articulate decisions through a rights-based framework and, second, that some provisional weight should be accorded to an agency's own assessment of the rights issues at stake.

China's Deep Reform: Domestic Politics in Transition. Lowell Dittmer , Guoli Liu

China's Deep Reform: Domestic Politics in Transition, edited by Lowell Dittmer and Guoli Liu. Lanham: Rowman & Littlefleld, 2006. xiv + 517 pp. US$89.00 (hardcover), US$34.95 (paperback). This edited volume is a collection of journal articles and book chapters on Chinese politics during the reform period. Its seven sections include 18 chapters, excluding the introduction and the conclusion. The book starts with the introduction by Guoli Liu and Lowell Dittmer, which briefly describes the major themes: (1) leadership change and elite politics, (2) political and legal reform, (3) political economy in transition, (4) the changing public sphere, (5) village elections and workers' politics, and (6) the shadow side of reform (namely, emerging problems and challenges). Liu and Dittmer rightly point out that an exploration of these issues provides valuable lessons for other countries in the process of transition from a command economy to a market economy. In Chapter 1, Dittmer and William Hurst review the field of contemporary Chinese politics. They outline the changes in topics, levels of analysis, and methodological approaches and techniques in the field over the years. They propose that more research should be based on the middle-range level of analysis to avoid atheoretical research and over-generalizations; there should also be a combination of methodological approaches; and more research should be based on the field's substantive foci that can also speak to larger theoretical concerns. Chapters 2 to 4 deal with leadership change and elite politics. In Chapter 2, Dittmer and Yu-Shan Wu suggest that the informal dimension, particularly faction politics, has been an important characteristic of Chinese politics. A modified factional model is still crucial to understanding elite politics in China. Based on an impressive database, Cheng Li and Lynn White address the issue of political succession from Jiang Zemin to Hu Jintao. They stress the adaptability of the party's elite in the selection of successors. Bruce J. Dickson's article focuses specifically on the party's adaptation: co-opting new elites and forging links with nonparty organizations. But Dickson also points out that the inclusion of certain members may contribute to a Leninist party's disintegration. Chapters 5 to 7 focus on political and legal reforms. Baogang Guo's article suggests that the party has been able to adapt to the changing political environment and strengthen its political legitimacy by reinventing itself. In the new environment, the party needs to adopt new measures, such as legitimizing political participation from different groups, to maintain its legitimacy. The chapters by Andrew J. Nathan and Randall Peerenboom both point to the slow process of the implementation of rule of law in China. Nathan's article reviews the many proposals of Chinese political reform and suggests that the heart of most proposals is the empowerment of the National People's Congress. As elsewhere, the progress of transition to constitutionalism will not be smooth in China. Peerenboom analyzes Chinese administrative law reform and rule of law in the era of globalization. He suggests that there has been considerable progress in realizing the rule of law in China, but it is still far from adequate. The creation of a modern legal system is thus constrained by China's specific circumstances. Chapters 8 and 9 form the section Political Economy in Transition. Yingyi Qian's chapter examines two reform stages. In the first (1979-93), the economic system was incrementally reformed to improve incentives and increase the scope of the market. In the second (since 1994), new institutions supporting the market are built before old institutions are dismantled. He points out that China's reform experience contradicts some of the conventional wisdom that suggests the incompatibility between socialist systems and market reforms. Shaoguang Wang's chapter examines the relationship between openness and inequality. …