Administrative Procedural Law Research Articles

1980年代後半の行政訴訟法の制定過程における中国共産党の論理―体制内エリートの統制と人民法院の「民主的な」機能

1980年代後半の行政訴訟法の制定過程における中国共産党の論理―体制内エリートの統制と人民法院の「民主的な」機能

Международная научно-практическая конференция «Актуальные проблемы административного и административно-процессуального права» (Сорокинские чтения) (26 марта 2021 г., Санкт-Петербург)

On March 26, 2021 a plenary meeting of the international scientific-practical conference (Sorokin readings) was held in Saint-Petersburg University of MIA of Russia. The collection of materials published by the conference day was presented. Views were exchanged on the problems of modernization of public management, administrative and administrative procedural law, on theoretical and applied problems of improvement in legislation regarding administrative offenses and administrative-jurisdictional activities, security and public order, development of the police and other law enforcement activities. The results of the conference were summed up.

Essay on the Doctrine of Administrative Procedure

The paper elucidates the history and current state of the administrative procedure doctrine, the idea of the structure of the administrative procedural code of the Russian Federation, shows the role Prof. Nadezhda G. Salishcheva and Prof. Valentin D. Sorokin plaid in the development of the theory of administrative procedure. The author highlights that the first link of administrative procedural activity and the structure of administrative procedural law have been created. The second link, namely, the creation of the Administrative Procedural Code of the Russian Federation has been completed. The third link that involves the recognition by the legal scientific community of the fact that, in the system of Russian law, administrative procedural law does exist, has taken place. And, according to strict logic, there is a need for the fourth final link in the system of administrative procedural activity, namely: the creation of an all-Russian system of administrative courts, which will require a financial basis, the availability of human resources and a modern digital infrastructure, including a unified all-Russian database of citizens and organizations brought to administrative responsibility qualified according to the constituent entity of the Russian Federation and fields (areas) of management, high-speed Internet connection with all local jurisdictional authorities. And as we can see, the system of administrative courts will meet the needs of two branches of state power — the executive branch and the judiciary.The author expresses the wish that curious scientists — administrative law experts — appear in Russian science, who would be interested in the considered scientific issue that constitutes an interesting and very important problem and proceeds researching the theory, legislation and practice of the administrative procedure.

К ВОПРОСУ О СООТНОШЕНИИ АДМИНИСТРАТИВНОГО СУДОПРОИЗВОДСТВА И АДМИНИСТРАТИВНЫХ ПРОЦЕДУР

The article contains an analysis of topical issues of administrative judicial procedure and administrative procedure. The author substantiates the conclusion about self-sufficiency of law of administrative judicial procedure and proposes directions for its further development. This development is associated with the adoption of legislation on the administrative procedure in Russia. This step can resolve a number of conceptual issues: 1) elimination of excessive preliminary judicial control over activities of the executive branch, the use of preliminary judicial control only where it is needed; 2) optimal regulation of pre-trial and judicial proof, as well as the procedure for reimbursement of legal costs; 3) forming of subject of administrative dispute prior to initiation of judicial procedure, which subsequently makes it possible to clearly delineate procedural rights and obligations of the court and the parties of administrative dispute. As a result, it is concluded that the optimal coordination of legal regulation of administrative procedure and legal regulation of administrative judicial procedure should provide the most effective protection of the rights of individuals and legal entities arising from public legal relations. The new legal regulation should not be aimed at restriction of procedural rights (for example, by introducing a mandatory pretrial procedure for resolving of all types of administrative disputes).

Az igazságügyi gyermekvédelem fejlődése Finkeytől napjainkig

Child protection in justice is designed to prevent crime among children and juveniles, to keep them away from further crime, and to reintegrate young offenders into society. So, it also covers the areas of prevention, enforcement, and aftercare. As early as the beginning of the twentieth century, it was recognized that child protection covers the elimination of a child’s financial vulnerability, the prevention of moral misconduct, and the representation of the interests of both orphans and the unhealthy. The country’s opportunities have been influenced not only by political ideologies but also by the human and material casualties suffered as a result of the two world wars. The current focus of child protection in justice is always on socio-economic and political problems. Examining the personality and family relationships of juvenile offenders also went a long way in the designated period. The protection of children in justice also affects the areas of administrative law, criminal substantive and procedural law, and criminology. At the end of the paper, I compare the institution of patronage and the preventive patronage.

PRINCIPLES OF ADMINISTRATIVE PROCEDURAL LAW, TAKING INTO ACCOUNT THE PROVISIONS OF THE DRAFT LAW “ON ADMINISTRATIVE PROCEDURE”

The article describes the content of the principles of administrative procedural law, taking into account the provisions of the draft law “On Administrative Procedure”. It is substantiated that in the administrative-legal science the generally accepted concept of the principles of administrative-procedural law is not formed. This is the reason for discussions about their list and content, the role in the relevant sub-branch of administrative law. Therefore, there is an urgent need to study this basic concept of administrative law for branch science. Emphasis was placed on the need to adopt a “basic” special law that would define the general rules of administrative- procedural relations. Such a law should establish a list of relevant principles, as well as disclose their content. The results of modern domestic normative design work in the context of consolidating the principles of administrative procedures are analyzed. The peculiarities and shortcomings of consolidating the principles that are the basis of administrative- procedural relations are highlighted. The principles of administrative procedural law include: the rule of law; legality; equality of participants before the law; use of authority for a proper purpose; validity and certainty; impartiality (impartiality) of the administrative body; good faith and prudence; proportionality; openness; timeliness and reasonable time; efficiency; presumption of legality of actions and requirements of a person; officialism; guaranteeing the right of a person to participate in administrative proceedings; guaranteeing effective remedies; state language and accessibility. They complement each other and formulate a universal basis for the regulation of all administrative and procedural relations.

The EU ETD Directive and the Development of EU Administrative Procedural Law. Theoretical Remarks

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Administrative Law in the Time of Corona(virus): Resiliency of the Hungarian Administrative Law?

<p class="Default">The Hungarian administrative law has been significantly impacted by the COVID-19 pandemic. Several rules – which were introduced during the state of danger based on the epidemic situation – have been incorporated into the Hungarian legal system. The administrative procedural law has been influenced by the epidemic transformation. However, the rules on e-administration have not been reformed significantly (due to the digitalisation reforms of the last years), but the rules on administrative licenses and permissions have been amended. The priority of the general code on administrative procedure has been weakened: new, simplified procedure and regime have been introduced. The local self-governance has been impacted by the reforms. The transformation has had two opposite trends. On the one hand, the Hungarian administrative system became more centralised during the last year: municipal revenues and task performance has been partly centralised. The Hungarian municipal system has been concentrated, as well. The role of the second-tier government, the counties (<em>megye</em>), has been strengthened by the establishment of the special economic (investment) zones. On the other hand, the municipalities could be interpreted as a “trash can” of the Hungarian public administration: they received new, mainly unpopular competences on the restrictions related to the pandemic. Although these changes have been related to the current epidemic situation, it seems, that the “legislative background” of the pandemic offered an opportunity to the central government to pass significant reforms.</p>

Common and distinctive features of judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power

The article examines the place of disputes over appeals against decisions, actions or omissions of the subjects of power in modern conditions. Some scientific views on the classification of types and kinds of mediation as a legal institution are analyzed. Existing models of mediation are identified. It is stated that in the Ukrainian legal system there are two possible models of mediation: judicial and extrajudicial. The own concept of «judicial mediation» is formulated. It is argued that judicial mediation is provided by administrative procedural law in the form of dispute resolution with the participation of a judge. The content of out-of-court mediation and its significance in administrative disputes are revealed. Features and signs of judicial and extrajudicial mediation are described. It is stated that judicial mediation is rarely used in administrative proceedings, and there are no mechanisms for the use of out-of-court mediation. The essence of judicial and extrajudicial within the framework of resolving disputes concerning appeals against decisions, actions or omissions of subjects of power has been studied. Modern scientific approaches to the ratio of components of judicial, extrajudicial mediation and litigation are generalized. It is proved that in science there is no single approach to the characteristics of extrajudicial and judicial mediation. For the first time, the author provides a comparative description of the main elements of judicial and extrajudicial mediation in disputes concerning the appeal of decisions, actions or omissions of the subjects of power. The role of judicial and extrajudicial mediation as legal institutions is defined. The possibility of using judicial and extrajudicial mediation in disputes concerning appeals against decisions, actions or omissions of subjects of power has been established. The basic principles of judicial and extrajudicial mediation are formulated. The status of a mediator in judicial and extrajudicial mediation is revealed. The functions of the mediator are highlighted. The duration of judicial and out-of-court mediation procedures is stipulated. The cost of judicial and extrajudicial mediation procedures is substantiated. The essence and content of the result of judicial and extrajudicial mediation procedures are determined. It is proved that judicial and extrajudicial mediation in disputes with public authorities and their officials have their advantages and disadvantages. In particular, it was found that, compared to judicial, out-of-court mediation in disputes over appeals against decisions, actions or omissions of subjects of power is a more effective conciliation procedure, but there are questions about the level of professionalism and education of the mediator. Ways are provided to improve the implementation of judicial and extrajudicial mediation in resolving disputes concerning appeals against decisions, actions or omissions of the subjects of power.

REVIEW OF THE TEXTBOOK M. I. SMOKOVYCH, V. M. BEVZENKO «ADMINISTRATIVE PROCESS OF UKRAINE: THEORY, PRACTICE»

Administrative process is a legal phenomenon that causes discussion and controversy among representatives of administrative law and the process both in terms of determining its content, form and functional purpose in the system of legal proceedings, and in terms of subjects, principles and substantive jurisdiction. Thus, the ideas of Ukrainian scholars about the administrative process are not always related exclusively to the understanding and legal regulation of administrative proceedings, and therefore textbooks and manuals on the disciplines "Administrative Procedure" and "Administrative Procedural Law" differ significantly in content.

Требования правового государства — надлежащая основа для формирования парадигмы российского административного права

The article takes a brief excursion into the scientific topics of administrative and legal issues, deeply researched by LL.D, Professor Alexander Borisovich Zelentsov. These include the development of administrative and administrative procedural law, the interaction of public administration and administrative justice, and the relationship between administrative proceedings and judicial administrative law. The new views of the scientist on the trends in limiting the subject of administrative law are considered, as well as his merits in putting forward ideas, setting tasks and setting priorities for the modernization of many elements of the system of administrative legal regulation are noted. The article analyzes the theoretical validity and practical usefulness of many of A.B. Zelentsov’s opinions concerning the improvement of the system and structure of judicial administrative law.

GUARANTEES OF LEGALITY OF PUBLIC ADMINISTRATION ACTIVITY: FROM CONCEPT TO PRACTICAL IMPLEMENTATION

The purpose of the article is an attempt to consider guarantees of the legality of public administration through rethinking the existing system of appeal, taking into account the novelties of domestic science and practice, and the preconditions for the formation of administrative procedural law, in which the central place belongs to the category of “dispute in public relations”. The analysis of subsystems of dispute resolution through administrative proceedings and pre-trial appeals from the standpoint of efficiency and the dialectical connection is carried out. It is stated that to ensure the effectiveness of the generally accepted system of dispute resolution as a guarantee of legality, the activities of public administration entities today are the priority of absolutely all legal countries. Significant obstacles on gradual and systematic activities such as those caused by an acute exacerbation of social tension in society, external aggression, especially the development of legal doctrine and legislation that includes an ambiguous position. Today, most scholars agree that the issues of guarantees of the legality of public administration are directly related to the ability to present a model for appealing decisions, actions, inactions and determine its levels. Scientific support of the processes of formation of a legal and socially-oriented state is closely connected with the need to strengthen the methodological armament of legal science, its departure from outdated scientific dogmas, and the search for forms of manifestation and enforcement. The solution of the goal set in the publication is achieved using the cognitive potential of the system of philosophical, general scientific, and special methods. Analysis and synthesis allowed to determine the features of the concepts of “appeal” and “dispute” within the administrative appeal. Methods of review of grammar and interpretation of the law helped identify gaps and other shortcomings of legislation problems introducing mediation in the judicial administrative process as of alternative that will act as a separate stage of proceedings litigation, making suggestions for improvement. Practical implications. The formulated proposals for the development of legal support for appealing decisions, actions, the inaction of public administration, along with the functioning of administrative proceedings as a procedural form of administrative justice, acts as a guarantor of public administration in the relationship between citizen and state and is an integral part of this model.

Actual problems of Administrative and Administrative Procedural Law

March 26, 2021 in the St. Petersburg University of MIA of Russia held a plenary meeting of the International scientific-practical conference ("Sorokin readings"), which was presented to materials published to the day of the conference the collection and held an exchange of views on the problems of modernization of public administration, Administrative and Administrative Procedural Law, on theoretical and applied problems of improving legislation on administrative offenses and administrative-jurisdictional activities, security and public order, development of the police and other law enforcement activities.

Patient’s Right to Cross-border Healthcare when Effective Hospital Treatment Is Available in Patient’s Member State but Method of Treatment Used Is Against Patient’s Religious Beliefs (Abstract)

In October 29th, 2020, the Court of Justice of the European Union delivered a judgment in case A. vs Ministry of Health, No C-243/19. The Court in the judgment analysed significant legal issues relevant to Latvia. Therefore, the aim of the article is to analyse the main proceedings about the patient’s right to cross-border healthcare when effective hospital treatment is available in the patient’s Member State but the method of treatment used is against the patient’s religious beliefs. The article also aims to analyse whether the principle of objective investigation and prohibition of legal obstruction by institutions and courts in accordance with Administrative Procedure Law have been obeyed. In the article, European Union and national legal framework and scientific literature in the field of patient’s right to receive cross-border healthcare have been analysed. Facts of main proceedings in national court cases and request to Court of Justice of the European Union for preliminary ruling from the Senate of the Supreme Court of the Republic of Latvia have been studied as well. Next, the Advocate General Gerard Hogan’s opinion and judgment of the Court of Justice of the European Union has been analysed. Further, the judgement of the Senate of the Supreme Court of the Republic of Latvia has been investigated. Upon concluding the article, the author draws attention to certain issues of national court’s legal analysis, which could be incompatible with the principle of objective investigation and prohibition of legal obstruction by institutions and courts.

Zakon o upravnom postupku i e-usluge u Letoniji

The Article provides an insight in the scope of regulation of the Latvian Administrative Procedure Law and the use of e-services and other means of electronic communication in administrative procedure. The scope of regulation of the Latvian Administrative Procedure Law is mainly determined by the definition of an administrative act, which, in turn, is derived from the German administrative law. The adoption and application of the Administrative Procedure Law is generally regarded as very successful example of transformation of the legal system. For the past ten years the government has introduced various e-services and other electronic tools designed to facilitate electronization of administrative procedure. The article outlines basic legal regulation of these tools, as well as gives a short insight towards recent impact of the pandemic of COVID-19 on use of electronic communication between the government and private persons.

The impact of COVID-19 on the practice of the Hungarian administrative procedural law

In my study, I make an attempt to show how the special legal order has changed the regulation of administrative procedure in Hungary. Last year, a record number of decrees were issued in order to regulate the changed life situation as widely as possible. The administration could also not be an exception. In my study, I present the changes through examples. I deal in detail with the legal institution of the public hearing. I chose this because basically, in "peacetime", this legal institution would be inconceivable in practice without the personal presence of the clients, but in the changed life situation, the rules that apply to it cannot be fully applied. I supplement my remarks by supporting statistical data.

Ibn Al-Muqaffa’s Proposal for Taqnīn and its Synchronization with Islamic Law Codification in Indonesia

The research problems addressed in the article are the background story behind Ibn al-Muqaffa’s proposal for taqnīn, the historical background of the creation of the Islamic law codification in Indonesia, and the synchronization of ibn al-Muqaffa’s idea for taqnīn with the codification of Islamic law in Indonesia. The current study aims to unravel the view of Ibn Al-Muqaffa, an Islamic figure, about taqnīn. A biographical study was conducted by doing library research, especially on Ibn Al-Muqaffa’s proposal for taqnīn. The data collection procedure was divided into three parts i.e., orientation, exploration, focus-oriented research. Biographical research is part of a qualitative study that uses data analysis techniques and literature study as the qualitative data analysis as well as content analysis through the historical and textual approach. The results of the study reveal the method of law implementation before and during the lifetime of Ibn Al-Muqaffa which could be described as chaotic, with one of the reasons was because, at the time, the court had not possessed the statute that governed the legal activities other than the Islamic jurisprudence (fiqh) which was used by the judges in accepting, examining, and deciding on cases addressed to them. Therefore, every judge took a decision based on their own ijtihad (an Islamic legal term referring to independent reasoning or the thorough exertion of a jurist's mental faculty in finding a solution to a legal question). Ibn Al-Muqaffa advised the Khalifa Abu Jakfar Al-Manshur to compile the correlated legal reasonings in Islamic jurisprudence in which to be implemented and to be applied as the binding legal force in the form of statutory law which was regulated nationally and to be used as guidance by all the judges without no exception. The codification of Islamic law in Indonesia has received a constitutional status based on philosophical, sociological, and juridical reasons. The researchers closely examine three types of Islamic legal laws i.e., Act number 7 of 1989, Act number 3 of 2006, and Act number 50 of 2009 concerning Religious Courts, Act number 41 of 2004 concerning Waqf (Endowment), and Act number 21 of 2008 concerning Sharia (Islamic) Banking. Taqnīn (the codification of Islamic law) must be adjusted to demands of the present time in which it is implemented and in accordance with the specific fields of law, for example, taqnīn for Civil Law, Criminal Law, Family Law, Judicial Law, State Administrative Procedure Law, State Administrative Law, And State Finances.

Counterclaim in public legal disputes

The article examines the institution of a counterclaim in administrative proceedings, which is a long-awaited change for the effective consideration of cases in the administrative process and for the implementation of effective protection of the rights of individuals and legal entities in administrative proceedings. Emphasis is placed on the peculiarities of drafting, filing and consideration of a counterclaim, which is the key to successful protection and restoration of violated rights and interests of the defendant in public law disputes.
 Also, an analysis of the feasibility of filing a counterclaim in the administrative process, taking into account the specifics of the parties and the legal relationship. This attitude of lawyers to the institution of a counterclaim in administrative proceedings is caused by the specificity of the administrative procedural law itself, the distinguishing feature of which is the presumption of guilt of the subject of power. It is based on the observance of this principle that the main features of a counterclaim in public law disputes are formed, starting from the authority of subjects to file such claims in open court proceedings and ending with the issuance and execution of a court decision based on such a claim.
 Thus, during the research in the process of writing this article, the author elaborated not only the works of famous lawyers, but also court decisions confirming the active use of the latest institute of counterclaim in public law disputes, as well as his own experience in drafting, filing and direct participation. in administrative cases, which combine the main and counterclaims. The peculiarities of realization of the rights of individuals and legal entities to file and consider a counterclaim in public law disputes, which are numerous in comparison with other categories of disputes, commercial, civil, etc., are revealed.

Niepomijalność administracji publicznej w zakresie władztwa zakładowego — „skreślenie z listy uczniów szkoły” na kanwie orzecznictwa sądowoadministracyjnego

Problematyka postępowań w indywidualnych sprawach ucznia w szkole, w tym władztwa zakładowego wobec ucznia na forum szkoły, i kwestia skreślenia z listy uczniów, wpływając na status ucznia jako użytkownika zakładu administracyjnego (szkoły), jest nie tylko obecna i aktualna w nauce prawa administracyjnego, ale i ciągle potrzebuje w praktyce weryfikacji sądowej i refleksji naukowej. Postępowanie w sprawie skreślenia ucznia z listy uczniów toczy się według procedury zgodnej z przepisami postępowania administracyjnego. Skreślenie ucznia z listy uczniów szkoły następuje w formie decyzji administracyjnej; jest przy tym równoznaczne z rozwiązaniem stosunku administracyjnoprawnego, łączącego ucznia ze szkołą. Podkreślić należy, że w szkole istnieje prawny obowiązek podporządkowania się ucznia wydanym i obowiązującym na jej terenie regulacjom wewnątrzzakładowym, do których należy zwłaszcza statut szkoły. Uprawnienia zakładu administracyjnego (szkoły) wobec ucznia-użytkownika są z reguły uregulowane ustawowo, szczegółowo zaś dookreślone w statucie szkoły i regulaminach wewnątrzszkolnych. W doktrynie prawa administracyjnego przyjmuje się, że podległość ucznia jako użytkownika zakładu administracyjnego uregulowana jest w szczególności w prawie oświatowym, jego podległość zaś wszelkim aktom, poleceniom organów szkoły — określona jest jako element władztwa zakładowego. Stąd właśnie obecność i niepomijalność w szkole prawnych form działania administracji publicznej oraz władztwa zakładowego, mającego istotny wpływ na sytuację prawną ucznia w szkole. Prawo administracyjne pozwala przyjrzeć się ochronie administrowanego ucznia w szkole, a sądownictwo administracyjne — ochronie praw podmiotowych jednostki jako ucznia szkoły w państwie prawa.

Instytucje prawne gwarancji zgodności z prawem jako niepomijalny element regulacji prawa administracyjnego

W prawie administracyjnym niepomijalnym elementem jego regulacji są instytucje praw­ne gwarancji zgodności z prawem działania administracji publicznej. W prawie ustrojowym regula­cja instytucji kontroli i dopuszczalności stosowania środków nadzoru gwarantuje działanie zgodne z prawem. Wprowadzona jest zarówno w regulacji ustrojowej administracji rządowej, jak i regulacji ustrojowej samorządu terytorialnego.W materialnym prawie administracyjnym niepomijalność regulacji instytucji prawnych gwa­rancji zgodności z prawem co do zasady należy łączyć z regulacją w procesowym prawie administra­cyjnym. To w prawie procesowym zawarta jest bowiem regulacja sankcji za naruszenie przepisów prawa materialnego. Nie oznacza to, że w materialnym prawie administracyjnym nie wprowadza się instytucji prawnych gwarancji zgodności z prawem.Procesowe prawo administracyjne tworzy rozbudowany system instytucji prawnych gwarancji zgodnego z prawem działania organów administracji publicznej i to zarówno instytucji prawnych działania zgodnego z prawem, jak i instytucji prawnych następstw prawnych naruszenia prawa przez pozbawienie mocy obowiązującej aktu kształtującego uprawnienia lub obowiązki strony po­stępowania administracyjnego.