Area Of Administrative Law Research Articles

COLLECTIVE INTEREST IN ADMINISTRATIVE LAW

The article attempts to answer the question whether the category of collective interest, known to other branches of law, is also justified in the area of administrative law. The analysis of the content of various categories of interests in the legal system against the background of the axiology of administrative law leads to the conclusion that the concept of collective interest is not needed in the area of this law. The functions it could fulfill in theoretical considerations and in the processes of implementing law do not go beyond the limits of the functions performed by the categories of individual interest and public interest collectively recognized in administrative law.

Can Administrative Law be taught in English? A proposal for the Environmental Law course

Given the relevance of linguistic skills in the European Higher Education Area (EHEA), this work proposes a teaching method that allows addressing some of the challenges posed by teaching Administrative Law in English. Specifically, we are referring to the lack of materials or to the anisomorphism. This method reaches its full potential in areas of Administrative Law that are strongly communitarized, as it uses European Union Law as a source of content and as a methodological tool. As we will see with Environmental Law course, the utility of the normative and jurisprudential resources that European Union Law offers in English is twofold: they enrich the theoretical-practical content of the course and facilitate the assimilation of the legal terminology necessary to understand the peculiarities of the Spanish legal system.

Judges’ Appointments to the Administrative Judiciary: How to Guarantee Knowledge and Experience to Adjudicate Disputes in the Area of Administrative Law?

Judges’ Appointments to the Administrative Judiciary: How to Guarantee Knowledge and Experience to Adjudicate Disputes in the Area of Administrative Law?

O bezpośredniości interesu prawnego w prawie administracyjnym

The aim of the article is to draw attention to the direct nature of the legal interest and to try to answer the question about the sources (grounds) of this interest. The analysis is carried out from the perspective of understanding individual interest in administrative law and focuses on the issues of qualifying legal interest, including law from the perspective of the nature of the relationship between individual interest and its normative basis, and from the perspective of the normative foundations for protecting this interest. It also refers to the issue of the axiological determinants of directness legal interest in administrative law. The analysis here justifies the conclusion that the source of legal interest in administrative law comprises substantive norms belonging to the entire system of generally applicable law, which objectify the individual interest, and only the close relationship between individual interest and the legal norm which is the source of this interest allows such interest to be defined as a legal interest. The lack of a close relationship between the individual interest and the legal norm, which is considered as the source of this interest, allows such an interest to defined, from the perspective of administrative law, only as a factual interest. The close bond that must exist between an individual interest and the legal norm on which it is based in order for such an interest to be classified as a legal interest is expressed by the characteristic defined as the directness of the legal interest. The article also presents arguments to justify the thesis that the mere need to protect a legal interest, or even real protection provided to a legal interest in the area of civil law, does not constitute a source of legal interest in the area of administrative law. Just as the source of the legal interest should be sought in the norms of generally applicable law, the legislator decides on the protection and the degree of protection for this interest by establishing appropriate separate legal norms in this respect.

Zasada proporcjonalności a prawo administracyjne – zagadnienia wybrane

Przedmiot badań: Przedmiotem badań jest zasada proporcjonalności – współmierności środka i celu – i jej doniosłość w obszarze prawa administracyjnego. Jest to najrozleglejsza gałąź prawa. Przepisy tego prawa ingerują nieustannie w życie wspólnot społecznych i jednostek. Prawo administracyjne ma pełnić funkcję publiczną ukierunkowaną na dobro wspólne właściwie wyważone z innymi prawnie chronionymi dobrami. Jego regulacje mają m.in. przeciwdziałać antynomii i konfliktom interesów przy zastosowaniu optymalnych środków prawnych do osiągnięcia celu prawa.
 Cel badawczy: Celem opracowania jest ukazanie źródeł, pojęcia, istoty i znaczenia wielowymiarowej zasady proporcjonalności oraz zestawienie jej z rolą i z cechami prawa administracyjnego. W artykule podjęto próbę wskazania sytuacji i przyczyn potwierdzających, że współmierność środka prawnego do osiągnięcia wyznaczonego prawnie celu nabiera szczególnego znaczenia w przepisach prawa administracyjnego regulujących zwłaszcza status prawny jednostek.
 Metoda badawcza: W artykule wykorzystano głównie metodę teoretyczno-prawną i dogmatyczno-prawną. Uwzględniono dorobek doktryny i judykatury.
 Wyniki: Przeprowadzona analiza potwierdziła duże znaczenie zasady proporcjonalności w prawie administracyjnym. Wynika to zwłaszcza ze specyfiki tego prawa. Prawo administracyjne i zasada proporcjonalności mają służyć jednostkom i chronić je przed arbitralnością i nadmierną ingerencją władzy publicznej. Nakaz przestrzegania zasady proporcjonalności wynika wprost z przepisów prawa bądź też jest z nich wyprowadzany. Poszanowanie tej zasady jest jednym z warunków stworzenia regulacji prawnej adekwatnej do potrzeb społecznych, służącej dobru i słuszności. Jej respektowanie wpływa też na wzrost autorytetu prawa oraz pogłębianie zaufania do jego przepisów.

Status jednotlivce ve správním právu

The article deals with the status of natural and legal persons, who are as the addressees of public administration one of the subjects of administrative-law relationship. In the introduction, the legal position (status) of a person is generally described. The following chapters then progressively examine legal personality, legal capacity, delictual liability, capacity to be party to proceedings and procedural capacity; that is capacity of individuals as well as legal entities. They focus on specificities of these types of capacity in the area of administrative law, on their legal regulation and on possible interpretation and application issues.

Non-ruling forms of activity of public administration in administrative enforcement proceedings

Abstract The article contains an analysis of the issues related to the application of non-ruling forms of activity of public administration in the performance of public law obligations through administrative enforcement proceedings. In principle, as part of such proceedings, public law obligations, understood as orders or prohibitions within the area of administrative law and other branches of law applied by administrative authorities (tax law, financial law, labor law), are carried out. Non-ruling forms of activity play a major role in administrative enforcement proceedings. The implementation of an enforcement measure may be related to authorized entities taking not only ruling, but also non-ruling actions. In order to apply an enforcement measure (which constitutes an institutionalized form of administrative compulsion), an administrative authority, on occasion, has to take non-ruling activities. Considering, primarily, the significant severity of the compulsion measures that may be applied towards the party obliged under enforcement proceedings, this proceedings should be carried out with respect for the values of a democratic state and with due care for the good of an individual.

Legislation Impediments in Reorganising Government Bodies in Indonesia

<p>This study identifies legislation constraints to reorganize government bodies in Indonesia. Most administrations continuously receive pressure to reform and transform. Reorganization is a logical step when the problems are structural. Large government has resulted in potential duplications, in part due to entrenchment in statutes. Reorganizing a ministry or an agency poses impediments due to the process required for statutory amendments. This article takes a qualitative approach to examine the legal impediment in conducting the reorganization of government bodies. This research is a socio-legal study that combines legal research in the area of administrative law, political science, and public policy and management.</p><p> </p><p><strong>Keywords</strong><strong>:</strong> Bureaucracy; Legislation; Politics; Administrative; Reorganisation.</p>

Notion of Market Manipulation in the Areas of Administrative Law and Criminal Law in the Legal Systems of Selected Member States of the European Union

The aim of the author of this paper is to show boundaries between penalised market manipulation and market manipulation which can be sanctioned only by administrative countermeasures. This task was achieved in result of analysing German, French, Italian and Spanish legal regulations concerning market manipulation. Above- –mentioned analysis is based on theoretical issues which are discussed in the part of this work concerning definition of market manipulation. European regulations related to market manipulation are also elaborated in this article. Differences between penalised market manipulation and administrative market manipulation are creatively and synthetically discussed in the separate part of this work. Theoretical sources of differences between discussed regulations concerning administrative market manipulation and criminal market manipulation are elaborated in the summary.

Primena prava Evropske unije pred letonskim sudovima

This article outlines the main changes that the system of Latvian courts faced after Latvia's accession to the EU. In the legislative field Latvia has added in its procedural laws general provisions that incorporate EU law into Latvia's legal system, as well as the possibility of national courts to apply preliminary rulings procedure. During Latvia's EU membership, Latvian courts have adapted to their role in the application of the EU law, especially in the area of administrative law. Latvian courts have referred to the Court of Justice of the EU for preliminary rulings in over 100 cases, mostly from administrative courts. This corresponds with general tendencies in other new EU Member States. However, the fact that there are very few requests for preliminary rulings from courts that are not the courts of the last instance in Latvia, suggests that Latvian courts of first instances are somewhat unwilling to make use of the preliminary rulings procedure and do not see the benefits in its use.

Europeanization of the Administrative Law of Ukraine: peculiarities of modern tectonic of mechanisms of the influence

The article explores the contemporary forms, mechanisms and models of Europeanization of the administrative law of Ukraine in the light of it renewal as a branch of national law and legislation. It is noted that foreign scientists pay special attention to the classification of the influence of the provisions of European administrative law (in the widest sense) on the administrative law of European countries. The author analyzes the extensive classification of the phenomenon of Europeanization existing in European administrative and legal science. It is stated that Europeanization of administrative law as branch of legislation has mostly vertical, direct, obligatory, "hard", positive influence, since the boundaries of the system of sources of administrative law are being expanded, and it is the obligation of the subjects of administrative law to apply its rules already as part of national legislation. At the same time, the Europeanization of administrative law as a branch of law can have the characteristics of vertical, direct, mandatory, harmonizing Europeanization and also with horizontal influence which voluntary, indirect, selective nature, exercised by various actors ("legislative bodies" of European organizations, the parliaments of European countries, the practice of public administration and judicial institutions, experts from technical assistance projects), etc. It is concluded that the mechanisms of Europeanization from the EU legal field regarding EU Member States will differ from mechanisms towards Ukraine. However, the mechanisms of influence used by Council of Europe and OSCE among their member states in the area of administrative law are identical, since they imply the application of the rules of "soft" law, "soft" cooperation, socialization and "lessons learned". The aim of their subjects is to satisfy their legal expectations that dominate the European administrative space. These mechanisms usually are used in dialectical unity.

Influence of the Law of the Council of Europe on Substantive Administrative Law in Poland. Selected Issues

<p>Legislative powers of the Council of Europe have a crucial impact on the domestic legal systems of the EU Member States including substantive administrative law, i.e. such an area of administrative law which defines rights and responsibilities of the public administration bodies and citizens. The legislation created by the Council of Europe’s bodies has a great impact on the areas of law which were earlier regarded as the exclusive responsibility of a given country. The Council of Europe has always been a major source of standard setting. This paper analyses selected areas of substantive administrative law taking into account hard law and soft law documents developed under the auspices of the Council of Europe.</p>

Problemy kodyfikacji prawa administracyjnego w ujęciu nauki radzieckiej w latach 1956–1967

Problems of codification of administrative law in Soviet science in the years 1956–1967Conceptual work on the codification of administrative law was carried out in Soviet science in the years 1956–1967. The borders of this period are marked by: 1956, when during the Twentieth Congress of the Communist Party of the Soviet Union, the necessity of intensifying research on the structure of the Soviet law system was emphasized, and 1967, when the Presidium of the Supreme Soviet of the USSR decided on the direction of codification works by ordering a draft of the principles of the USSR and Soviet Republics legislation in the field of administrative responsibility. In the discussion on the codification of administrative law, Soviet science focused on problems such as: the desirability of codification at the all-Union or republican level, the limits of administrative law subject to codification and the legitimacy of preparing a general administrative code or separate legal acts regarding specifi c institutions and areas of administrative law.

Legal regulation of drug advertising and its restrictions in the conditions of the Slovak Republic

Abstract The question of drug availability is a key requirement for each country. Their deficiency can cause fatal consequences for the health of the population. For this reason, the production and distribution of medicines represents the economic potential of the state, which is also protected and regulated in the Slovak Republic. Drug distribution is also part of every market economy as it is the primary form of business-to-customer (B2C) offering. At first glance, the promotion of drugs might seem to be just marketing. But this area is under the scrutiny of the Slovak legislations. From the point of view of the systemic nature of law, advertising of medicinal products is regulated both in public law and private law. This is particularly the area of administrative law, commercial law and civil or criminal law, which must respect the often complicated penetration of European law into national law. The issue of ad management and the associated availability of medicines, in our terms, is at the centre of public interest. The main aim of the authors in this paper is to examine not only the European but especially the national legal regulation of the advertising of medicines in the context of the decision-making activity of the Slovak authorities supervising compliance with the legal restrictions on the promotion of pharmaceutical products. Another goal is to identify the problems in application practice and to propose ways to eliminate identified shortcomings by specific procedures. The authors, through scientific and doctrinal interpretation, examine selected statutes of the Law on Advertising and related legislation pertaining to the issue of drug advertising. Through expert literature, jurisprudence and the decision-making processes of the administrative authorities, they seek answers to practical application problems. At the end of the contribution, they critically analyse the identified shortcomings and propose appropriate measures to eliminate them.

A Study of Administrative Environmental Decision-Making before the Courts

This article presents the findings from a quantitative study of 249 judicial environmental decisions. The study finds that the courts find against claimants challenging administrative environmental law decisions by a higher margin than in other areas of administrative law (though the margin varies from court to court). The paper identifies the main reason for this in the dynamics between the ‘political’ nature of environmental law and the legal focus of judicial review. The article also finds that this variation between courts is potentially narrowing and that the rate of success enjoyed by claimants varies depending on which public authority they seek to challenge. Having presented the quantitative findings of the study, the article briefly sketches out the relevance of the type of quantitative work presented here in relation to ongoing debates on role of the courts in environmental law whilst also identifying future avenues for additional follow-up research.

Standards of the European Court of Human Rights in the area of administrative law with special reference to the Republic of Macedonia

In many occasions, the European Court of Human Rights has reiterated that the ECHR is a ‘living instrument’. The rights enshrined in the Convention have to be interpreted in the light of present day conditions so as to be practical and effective. Therefore, the Court has on several occasions modified its views on certain subjects because of scientific developments. Although in the scope of Article 6(1) of European Convention on Human Rights are civil rights and obligations and criminal charges, the application to administrative disputes has arised from the Court’s case-law. This paper will try to analyze the framework of administrative disputes in the Republic of Macedonia, mainly the Law on Administrative Disputes and its consolidation with the international standards, specifically with the ECHR. Further, subject of elaboration will be the Macedonian dossier in Strasbourg and the judgments in which the ECtHR found violation of Article 6 of ECHR in relation to administrative disputes and procedures.

Judge Kavanaugh, Lorenzo v. SEC, & the Post-Kennedy Supreme Court

This Article analyzes an upcoming Supreme Court case, Lorenzo v. Securities and Exchange Commission (Lorenzo), and explains why it provides a valuable window into the Court’s future now that Justice Kennedy has retired and his seat has been filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote separately in an extensive dissent. That dissent is quite remarkable. It contains a scathing assessment of securities fraud enforcement and adjudication at the SEC, the majority opinion’s interpretation of deceptive financial conduct under Rule 10b-5, and the SEC’s overall role in the development of federal securities law doctrine. Then-Judge Kavanaugh’s dissent also goes on to identify how the legal deficiencies specific to Lorenzo motivate his broader skepticism towards the constitutional legitimacy of the administrative and regulatory state as a whole, a view that represents his signature contribution as a federal judge. Thus, in Lorenzo, the defining judicial philosophy of the newest Supreme Court Justice is on full display. More broadly, this Article demonstrates that the deeper import of Lorenzo is not what it reveals about the views of Justice Kavanaugh. Rather, it is the reception those views will meet from the other eight Justices on the Court. In addressing the argument set forth in the Lorenzo dissent, the current members of the Court will be confronting the positions of a peer and colleague. By necessity, they will also signal their openness to being persuaded by Justice Kavanaugh on the issues where he speaks with greatest authority, and can be expected to act as a forceful advocate for his vision of the law on the Court. Lorenzo can therefore be seen as a bellwether for Justice Kavanaugh’s influence as a judicial entrepreneur on behalf of his trademark theory of the constitutional separation of powers in administrative law. Most importantly, the case bears directly on the area of administrative law where the stakes are highest of all—the role that Justice Kavanaugh may play in the demise of the Chevron doctrine and the collapse of judicial deference toward the administrative state.

MODERN METHODOLOGICAL APPROACHES TO THE INVESTIGATION OF ENSURING AND PROTECTION OF HUMAN RIGHT TO ACCESS TO PUBLIC INFORMATION

The purpose of the paper is to study the preconditions of the necessity to use new scientific tools during the study of issues related to the ensuring and protection of human right to access to public information; to characterize the main scientific approaches to modern researches in the sphere of safeguarding human right to access to public information; to identify promising directions for further research on this topic. Methodology. The paper presents the examples of a negative use of scientific methodology in conducting research in the area of administrative law and procedure and also draws attention to the need to reconsider an obsolete scientific methodology that does not correspond to the current realities and negatively affects the development of legal science. It indicates and characterizes the main preconditions of the necessity to use new scientific tools while investigating the issues related to ensuring and protection of human right to access to public information. In the context of the research of peculiarities of administrative and legal coverage and protection of human right to access to public information, it is proposed to use the systems approach, which is extremely effective in analysing complicated legal phenomena and processes and permits to study the peculiarities of substantive, procedure and procedural legal regulation as a cohesive whole. Practical implications. The system approach is an extremely promising technique for studying legal reality. Its use allows synthesizing all the knowledge about legal phenomena (legal rules, legal relations, legal consciousness, etc.), which is accumulated during the past stages of formation and development of domestic legal science, for a deeper insight into the development and functioning of law in general and administrative law in particular. Value/originality. Problems that exist in legal science in general and in the science of administrative law, in particular, can be solved only with the help of new scientific tools, specifically, by applying the system approach. The use of the systems approach in case of studying the issues of ensuring and protection of the human right to access to public information would allow combining all studies that were performed on this issue in substantive, procedure or procedural parts of the administrative law.

FOIA's Common Law

The Freedom of Information Act (FOIA) replaced the near-total control that agencies held over their records with a judicially enforceable “right” of public access to agency information. Underscoring the importance of this statutory right, FOIA rejected the judiciary’s traditional respect for agency expertise. It instead places the burden of proof on the government and mandates de novo review in litigation. And yet, agencies still effectively control the terms of information disclosure. The government wins nine out of every ten FOIA cases in court. This ratio is a startling departure from other areas of administrative law, where agencies generally enjoy much lower win rates. This Article provides a framework for understanding this tension. Tracing FOIA’s doctrines to their roots, it finds that FOIA jurisprudence reflects the well-established “administrative common law” approach that courts apply elsewhere in administrative law. Specifically, courts have used functional or policy-based reasoning to transport preexisting evidentiary and administrative law doctrines to FOIA litigation, often in ways that challenge statutory text. Because these pre-FOIA doctrines overwhelmingly empowered the executive, the ensuing doctrines that courts grafted onto FOIA (“FOIA’s common law”) predictably and consistently favor agencies. Recognizing FOIA doctrine as a subset of administrative common law holds broader implications. It provides a meaningful baseline for critique by situating FOIA within a larger debate over the judiciary’s proper role in the administrative state. It also offers new perspectives on how Congress can counteract the inertial forces driving FOIA’s common law. Finally, it informs the debate over administrative common law by showing the method’s resilience in an area where Congress has been uniquely active.

A Study of Administrative Environmental Decision-Making Before the Courts

This article presents the findings from a quantitative study of 249 judicial environmental decisions. The study finds that the courts find against claimants challenging administrative environmental law decisions by a higher margin than in other areas of administrative law (though the margin varies from court to court). The paper identifies the main reason for this in the dynamics between the ‘political’ nature of environmental law and the legal focus of judicial review. The article also finds that this variation between courts is potentially narrowing and that the rate of success enjoyed by claimants varies depending on which public authority they seek to challenge. Having presented the quantitative findings of the study, the article briefly sketches out the relevance of the type of quantitative work presented here in relation to ongoing debates on role of the courts in environmental law whilst also identifying future avenues for additional follow-up research.