Administrative Law Research Articles

Basic approaches to understanding the objectives of administrative law

On the basis of a generalization of those dominant viewpoints on objectives of administrative law that are developed within Ukrainian administrative legal science, the author determined that they are united by the recognition of the following to be objectives of administrative law: (1) specifying and ensuring the implementation of human rights and freedoms in the public-legal sphere through the introduction of mechanisms administrative legal regulation and protection in the public administration domain; (2) determination of the standards for the exercise of public management functions by administrative authorities and the provision of administrative services by them, as well as the establishment and improvement of substantive and procedural tools for activities of administrative authorities, including the means of legal protection against violations on their part as well as mechanisms of civil control over their activities. According to the outcomes of the study of approaches to understanding of the tasks of administrative law in world scientific community, the article notes that according to the national tradition of the common law countries, which was adopted by many states that represent the civil law legal tradition, the fundamental objective of administrative law is recognized to be the determination of optimal (from the point of view of the rule of law and good governance) limits of the margin of appreciation of administrative authorities and providing private individuals with legal protection against abuse of administrative power. Moreover, it is particularly noticeable that a special emphasis is placed on guaranteeing the transparency and accountability of administrative authorities to civil society. Less important is the task of administrative law, which consists in establishing the principles, substantive rules and procedures for the performance of administrative functions by government authorities, as well as the accumulation in administrative practice and judicial case-law of the potential for increasing the effectiveness of administrative law.

Features of the regulation of the legal status of public law legal entities in France

In the article, the author considers issues related to the legal status of legal entities under public law in France. The legal status of legal entities under public law is regulated by the Constitution of France, special legislation in the field of administrative law. The article analyzes the criteria for distinguishing legal entities into legal entities of private and public law, developed by the judicial practice of French courts. In the article, the author examines the types of legal entities of French public law, in particular, the latter include: the state, territorial entities, public institutions. The article examines the legal nature and types of public service, which is carried out in the field of defense, transport, and industry management. The article defines a public service, as a rule, the specified services do not have the status of a legal entity, the specified status belongs to the state that creates these services. The author researches public institutions of France that belong to legal entities under public law. The article defines the concept of a public institution, classifies public institutions according to various criteria, and defines the organizational structure of these institutions. A variety of public institutions is industrial and commercial in nature. The author examines the historical aspects of the emergence and development of this type of institution. The article examines the characteristics of a public institution, in particular, the following characteristics are distinguished: 1) it is a legal entity under public law; 2) has a socially beneficial purpose; 3) is under the supervision (guardianship) of the state can be fully applied to the legal regulation of public benefit institutions, which also have the status of a legal entity, pursue a socially beneficial goal, and are under the supervision (guardianship) of the state. The article examines the legal nature of associations of persons of liberal professions (lawyers, attorneys, notaries, doctors, pharmacists, veterinarians, and others). The article examines the judicial practice of French courts on issues of compensation for damage caused by the activities of a state institution. The author examines and investigates issues of the legal regime of property of legal entities under public law.

Punitive Subjectivities and Emotions in Immigration Detention

In immigration detention centres, emotions run high; tensions, conflicts, anxiety, and affection occur amid bureaucratic procedures, paperwork, files, lists of people, systematisation of cases, buses that come and go with detainees, and people who will be deported. Although immigration detention belongs to administrative law, in practice, detention centres operate closer to penal detention. Little is known about the operation of these places in Mexico, including how punishment takes place in daily practice. Even less is known about the people who work there, especially the rationale and emotions behind their daily decisions and the different ways in which they collaborate with a system that promotes punishment as a central element of immigration detention. In this article, I study how fear and disgust are emotions embedded in institutional practices that reinforce punishment in immigration detention, while empathy can challenge it. I analyse working conditions and daily interactions in detention centres, immigration control facilities and their surroundings. I argue that immigration agents can develop punitive subjectivities to channel emotions derived from anxieties and frustrations of daily work, as well as to embrace a sense of institutional belonging and the illusion of order and control. However, border officers also show empathy towards migrants to cope with emotional distress and humanise their daily work. I intend to answer the questions in this paper: Under what institutional conditions do emotions become power in immigration detention settings? What do emotions reveal about the functioning of punishment in immigration detention centres? How do emotions expressed by INM agents (such as fear, disgust and empathy) enhance or challenge punitive subjectivities?

20 лет федеральному научно-практическому журналу «Административное право и процесс»

The article gives brief information about establishment and development of the Administrative Law and Procedure federal scientific and practical journal. The author notes considerable contribution of this periodical in the Russian administrative law and procedure science. The paper shows the role of editor in chief of the journal, LL.D., Professor, Honored Lawyer of the Russian Federation, Aleksandr S. Dugenets in the creation of the contemporary unique creative profile of the journal, its relevance and multiple achievements.

Международная научно-практическая конференция «II Елистратовские чтения: Публичное право стран СНГ и ЕАЭС: национальные и сравнительно-правовые исследования» (16–17 мая 2024 г., г. Новосибирск, Сибирский университет потребительской кооперации)

The International Scientific and Practical Conference “II Elistratov´s Readings: Public Law of the CIS and EAEU Countries: National and Comparative Legal Research” was held at the Siberian University of Consumer Cooperation on May 16-17, 2024. This year, the conference was devoted to comparative analysis of trends in the development of administrative and constitutional law of friendly legal systems of the CIS and EAEU countries. The review highlights the abstracts of key reports, as well as the main results and conclusions, reached by the conference participants.

On the question of administrative-delicit law of Ukraine

The article notes that the active development of social relations affected the renewal of the doctrinal foundations of Ukrainian administrative law, as a result of which there are constant discussions in the modern science of administrative law of Ukraine, including those directly related to administrative-legal relations. And therefore, the prospects of administrative and legal science, as well as the fields of administrative law, are connected with modern tasks that science sets before itself in accordance with social requirements, which must be solved, including through the application of measures. It is emphasized that administrative law regulates a significant number of different social relations, among which a special place is occupied by administrative-delict relations, which cover a variety of relations that are subject to the norms of administrative law, which is currently in the stage of systemic reform and is mostly connected with relations to ensure implementation of human and citizen rights and freedoms, consideration of administrative disputes, application of measures of administrative responsibility, bringing to disciplinary responsibility persons of public law. Attention is drawn to the attempts to reform the administrative-tort legislation, since the codified act of the administrative-tort legislation adopted in Soviet times does not meet the realities and requirements of today. Therefore, the issue of updating the administrative-delict legislation occupies a prominent place in the scientific developments of domestic legal scientists. Existing scientific discussions on the separation of administrative-tort law into an independent branch of law exist to this day, but we must state that administrative-tort law, despite its own specificity, a significant number of various functions (regulatory, binding, permitting, protective, educational etc.), is a sub-branch of administrative law, which has a special subject of legal regulation, which is a set of legal norms that regulate relations arising from the doctrine of administrative tort. It is emphasized that the formation of modern administrative-delict law involves interaction with the institutions of administrative responsibility provided for by the sectoral norms of laws, which may include the procedure of bringing a person to administrative responsibility, completely different from that regulated by the Code of Administrative Offenses, which requires new theoretical views on the establishment of a system of administrative penalties.

Administrative Law as a Source of Rights

This article challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights‐based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights‐based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights‐based theory of judicial review in future work.

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.

Dinamika Hukum Administrasi Negara Terhadap Mekanisme Kontinuitas Kebijakan di Masa Peralihan Kekuasaan Presiden

Transitions of presidential powers often create policy uncertainty, which can disrupt the stability of the administration of government and violate the principle of legal certainty. State administrative law, as the main instrument in maintaining policy stability, has not been fully effective in ensuring policy continuity in Indonesia during the transition of power. The study aims to analyze the role of state administrative law in maintaining the continuity of public policy during the presidential transition of power. Using normative legal research methods, the study analyzed various regulations, such as Law Number 30 of 2014 on Government Administration, as well as conducting comparative studies with administrative legal systems in the United States and Germany. The results show that, despite efforts to provide a clear legal foundation for policy continuity, implementation on the ground is still weak, especially in terms of oversight and policy evaluation procedures. Countries such as the United States and Germany have succeeded in creating systems that allow policy continuity during the transition of power through stronger oversight mechanisms and transparent evaluations. The implication of this study is the need to reform administrative law in Indonesia, by adding more specific regulations to ensure policy stability and protect public interests during the transition of power.

Procedural politicking for what? Bureaucratic reputation and democratic governance

Abstract As the bureaucratic policymaking process has frequently deviated from conventional procedures contemplated by administrative law statutes, recent research suggests that bureaucrats strategically use rulemaking procedures to pursue their own goals and circumvent political interventions. However, the literature has often neglected implementation issues that bureaucrats confront in the policymaking process. Building on a bureaucratic reputation perspective that explicitly recognizes bureaucrats’ concern for implementation failure and reputational damage, this study examines when and why U.S. federal agencies issue rules without prior notice and comment instead of proposing rules through the conventional notice-and-comment process. Using logistic regressions with fixed effects, based on over 16,000 rules published between 2000 and 2020, we find that agencies are more likely to solicit prior public comment when making more complex and stringent rules. However, they tend to bypass it when making new rules and joint rules with other agencies. This study also shows that the positive effect of rule stringency on agencies’ use of the conventional notice-and-comment process tends to be more pronounced in agencies with higher proportions of professional bureaucrats. Overall, our findings indicate that bureaucrats’ choices of rulemaking procedures might be shaped by their incentives to prevent implementation failure and preserve agency reputation, which can be compatible with the norms of democratic governance.

The curious genealogy of the “executive state”: A critical review of the latest administrative reform in Greece

Abstract This article critically discusses the latest reform of the Greek administration system, which took the form of an Act establishing an “executive state.” It intends to make two contributions to the existing literature. First, it offers a critique of the executive state. Existing critiques generally focus on the bureaucratic concentration of powers in the office of the Prime Minister or the abandonment of positive elements found in previous reform attempts. However, they largely accept the reform as a technical response to the crisis. In contrast, this article presents a comprehensive critique that fully addresses the historic origins and contemporary significance of the notion and institutional forms of the executive state, revealing it as a political, rather than technical, measure that reflects deeper views about the relationship between the state, the economy, and society. Additionally, the article assesses the two main effects of this administrative reform—the centralization and depoliticization of policymaking—as manifestations of an authoritarian shift. The second contribution concerns the literature on authoritarian liberalism, which examines the authoritarian tendencies inherent in liberal forms and ideals. While several authors have explored the authoritarian tendencies of institutional reform in the face of crisis, this article seeks to explore the authoritarian phenomenon as part of a process of market capture and to examine its effects specifically on administrative law and structures. Ultimately, this article argues that administrative reform in Greece follows a rather sinister genealogy, and must be understood as an essential counterpart to the generalized and sustained attack on social and political rights following the dictates of the market.

The EU Environmental Crime Directive 2024: A Revolution in EU Environmental Criminal Law?

Abstract On 11 April 2024, the European Union (EU) adopted a new Environmental Crime Directive (ECD) that departs from how the relationship between administrative law and criminal law has previously been defined in EU law. According to the revised ECD, a conduct shall be deemed unlawful when it is in ‘manifest breach of relevant substantive legal requirements’ – even when there is compliance with an administrative permit. With this, the new ECD has de facto created autonomous environmental crimes. This is revolutionary, as in most legal systems criminal liability is not possible if an operator complied with the conditions of a permit. This article argues that this legal development is welcomed as a way to ensure effective environmental criminal enforcement. The question that remains open, however, is how the concept of ‘manifest breach of relevant substantive legal requirements’ will be translated by the Member States during the transposition of the amended ECD into national law. It is argued that it is especially important to find a formulation that can be reconciled with the legality principle, requiring the conditions for criminal liability to be specified in a clear and specific manner whilst ensuring that environmental crimes are held to account.

Actual issues of administrative and tort law of Ukraine

Actual issues of administrative and tort law of Ukraine

Административное право в системе публично-правовых наук

In the context of modern realities of the development of russian science, interdisciplinary research is relevant, located at the intersection of public law sciences and constituting more than 30 areas of scientific research. According to the author, studies related to digital transformation and the introduction of artificial intelligence are especially significant. In conclusion, it is summarized that within the framework of the scientific specialty 5.1.2. “Public legal (state legal) sciences”, the predetermining place belongs to constitutional law, because The Basic Law of the Russian Federation lays the fundamental foundations for a decent future for the country and the well-being of citizens, while administrative law occupies one of the leading places in the system of public law because regulates legal relations in the field of public administration for the implementation of state policy in all spheres of life of russian society.

The principle of "Proportionality" in French Administrative Law: a Lesson Suggested for Jordanian Law

This study considers the test of proportionality as one of the levels of examining the reasons given to administrative decisions in French law and the need to adopt the test in Jordanian law as it is applied in French law. The subject of this study is of great importance as it represents a new era of examining the legality of administrative actions. As far as the writer of this study knows, there is no relevant study in English examining this issue in Jordanian or other Arab legal systems, it is therefore an attempt to fill the gap in this area. Issues of this study are examined throw two main sections, the first one examines the traditional approach in examining the reasons given to administrative decisions in French law, whereas the second examine deeply the test of proportionality the need to adopt it in Jordanian law.

Administrative Law Challenges in Investor- State Arbitration

Attributing a wrongful act to a state in an investor-state arbitration is governed by public international law. However, understanding whether such an act was undertaken by an agent of a state or other entity exercising elements of governmental authority, figuring out the legal nature, effects, scope and legality of such acts and comprehending whether they were taken from the point of public authority requires application of domestic administrative (or wider public) law of the respondent state. Administrative law makes applied public international law provisions operational. In order to evaluate the occurrence and frequency of administrative law challenges in investment arbitration, the author carried out a survey amongst ICSID arbitrators. The results of the survey, presented in the paper, confirmed the hypotheses that it is not seldom in investor-state arbitrations to come across complicated administrative law issues, the resolution of which is a prerequisite for deciding an arbitration case; that a majority of arbitrators in investor-state arbitrations did not specialize in administrative law; and that currently applied mechanisms of handling such complex administrative law issues in practice are not satisfactory.

The AI Act from the Perspective of Administrative Law: Much Ado About Nothing?

Abstract This paper examines the impact that the finally approved Artificial Intelligence Act (AIA) will have on European public authorities when developing, acquiring and using AI systems. It argues that, despite the initial disappointment that the Act may cause when approaching it from an administrative law perspective, and despite the fact that some of the solutions that have been finally chosen are questionable, it represents a remarkable step forward, duly addressing many of the problems raised in the literature in relation to the automation of administrative decisions and the use of AI systems by public authorities.

좋은 행정에 대한 시간적ㆍ공간적ㆍ상황별 검토와 좋은 행정규제

While the concept of administration has been studied extensively in administrative law, research on “good administration” has been relatively lacking. This study seeks to define good administration not as a static concept but through a comprehensive analysis of temporal, spatial, and situational factors. Rather than deducing what constitutes good administration in a deductive manner, this study examines the diverse and varying spectrum of elements that make up good administration through a temporal, spatial, and situational analysis. The insights derived from these arguments reveal that administrative systems and content that have been evaluated as good administration reflect the history, culture, circumstances, and national goals of each country. Therefore, good administration moves dynamically and changes flexibly according to the relationship between the purpose and the means (Zweck-Mittel Verhältnis; end-means relationship; Relation fin-moyen) that aims to solve the problems arising in the administrative field, depending on the time, space, and situation. The various elements of good administration in different temporal, spatial, and situational contexts can effectively solve problems. However, the process also generates new issues and areas that require improvement. As a result, good administration must always be subjected to continuous review and adaptation throughout its development. Good administration is not a fixed concept but a dynamic one that can flexibly adapt to time, place, and circumstances. Good administration is characterized by its ability to change according to the era, country, and circumstances. To achieve this, regulations must ensure transparency, rationality, promptness, adequacy, and interdepartmental connectivity. Regulatory standards and objectives should be clear and transparent, and regulations must be designed rationally, considering their purpose and cost. Additionally, regulatory systems must be able to respond quickly to rapidly changing social and economic environments. Thus, understanding good regulation for achieving good administration requires a revised perspective on regulation. The concept and scope of regulation should no longer be confined to the narrow understanding of merely restricting rights and obligations. Instead, it should be expanded to include all types of rules designed to solve issues in the administrative field, varying by time, place, and situation, and discussed across legislative, administrative, and judicial contexts. Furthermore, the scope of regulatory actors should not be limited to administrative agencies. Approaches such as ‘self-regulation,’ where citizens and businesses themselves become the regulatory actors, and ‘regulated self-regulation,’ where administrative agencies, citizens, or businesses collaboratively act as regulatory agents, should also be considered. Good administrative regulation, which leads to good administration, should not be sought as a fixed concept but should instead be flexible, adaptive, and smart. The appropriateness of regulations should be continuously evaluated to avoid being excessive or insufficient, and citizen participation should be encouraged to improve the quality of regulations and increase public acceptance. Digital innovation should be leveraged to simplify procedures and ensure swift processing, while ongoing education and public outreach are essential to enhance citizens' understanding of new regulations. Finally, regulations must maintain flexibility and resilience to adapt to a changing society, and balancing the objectives and means of regulation is crucial to good administration.

Administrative Law in the Era of Digital Technologies: New Opportunities for the Saving of Cultural Heritage and Public Education

The rapid development of digital technologies has transformed various aspects of human life, including the save and promotion of cultural heritage. The present article explores the intersection of administrative law and digital technologies in relation to the protection of cultural heritage and public education. The study aims to analyze the role of administrative law in providing a legal framework for the utilization of digital technologies to safeguard cultural heritage, address the challenges arising from the adoption of new technologies, and promote public education on the importance of saving historical values. The article begins by examining the innovative methods employed in the save of cultural heritage, such as virtual museums, augmented and virtual reality technologies, and artificial intelligence. The role of administrative law in facilitating the integration of these technologies into the save process is emphasized, as it provides the necessary legal support and guidance to ensure their effective and responsible use. Next, the article delves into the primary challenges and problems faced by the cultural heritage sector in adopting digital technologies. These include issues related to data privacy and security, intellectual property rights, and the need for harmonization between national and international legal frameworks. The article highlights the importance of administrative law in addressing these challenges and ensuring a balanced approach that respects the rights of all stakeholders. The study then discusses the interaction between technology and law in the context of heritage protection. It analyzes the existing legal frameworks governing the use of digital technologies in the cultural heritage sector and identifies areas for improvement and potential legal developments. The role of administrative law in facilitating international cooperation and collaboration in the save of cultural heritage is also explored. Finally, the article presents an overview of the prospects for the development of digital cultural heritage management. It outlines the potential benefits of integrating digital technologies into the save process, such as increased accessibility and awareness of cultural heritage, as well as the opportunities for public education and engagement. The article concludes by emphasizing the crucial role of administrative law in ensuring that the digital transformation of the cultural heritage sector is carried out responsibly and sustainably.

RESPONSIBILITY OF MEMBERS OF SELF-REGULATING ORGANIZATIONS: PECULIARITIES AND PROBLEMS OF REGULATION IN THE REPUBLIC OF KAZAKHSTAN

In the scientific literature, the understanding of the legal nature of the responsibility of members of self-regulating organizations causes conceptual discrepancies. This liability is considered as a separate type of legal liability based on civil law principles. In the laws regulating issues of self-regulation with mandatory participation, the concept of disciplinary misconduct is used, which leads to the use of the name of this responsibility as «disciplinary». Nevertheless, the special grounds for the liability of members of a self-regulating organization, the subject composition and the nature of legal relations make it possible not to identify the responsibility in question with disciplinary liability in labor and administrative law. The Law on Self-Regulation and legislative acts concerning mandatory self-regulation contain the basics of regulating liability issues, but these norms need to eliminate contradictions. In addition, it is necessary to provide for the definition of the concept of responsibility of members of self-regulating organizations and its elements (misconduct, penalties). The study of internal documents of self-regulating organizations in terms of the responsibility of their members revealed the inconsistency of the content of the documents with certain requirements of the Law on Self-Regulation. Based on the results of this work, the specifics of the responsibility of members of self-regulating organizations are noted, the features and shortcomings of the regulatory regulation of this institution in the Republic of Kazakhstan are identified, facts of violations of legal norms in law enforcement practice are revealed, and differences in the approaches of organizations to choosing the procedure for bringing to responsibility and determining liability measures are established. Solutions are proposed for the identified shortcomings. The conclusions obtained in the course of this study can be used in scientific research and legislative work.