Areas Of Public Law Research Articles

Имущественная обособленность как признак юридического лица: теория и практика (по страницам классики и судебных актов)

The authors consider the essence of the concept of ‘property isolation of a legal entity’, different approaches to the definition of property isolation are given and analysed. The authors conclude that property isolation is characteristic not only of legal entities, but also of individuals and contractual associations, while for legal entities the value of property isolation is high, due to the fact that it allows to participate in turnover and bear property responsibility. Since the degree of property isolation of different types of legal entities differs, the authors propose the respective classification of legal entities. The authors conclude that there are no universal criteria of property isolation for civil, criminal, administrative and other forms of legislation. Thus, direct application of concepts and rules of civil legislation on property isolation to the areas of public law is unreasonable.

When Is a Decision Automated? A Taxonomy for a Fundamental Rights Analysis

Abstract This Article addresses the pressing issues surrounding the use of automated systems in public decision-making, specifically focusing on migration, asylum, and mobility. Drawing on empirical data, this Article examines the potential and limitations of the General Data Protection Regulation and the Artificial Intelligence Act in effectively addressing the challenges posed by automated decision-making (ADM). The Article argues that the current legal definitions and categorizations of ADM fail to capture the complexity and diversity of real-life applications where automated systems assist human decision-makers rather than replace them entirely. To bridge the gap between ADM in law and practice, this Article proposes to move beyond the concept of “automated decisions” and complement the legal protection in the GDPR and AI Act with a taxonomy that can inform a fundamental rights analysis. This taxonomy enhances our understanding of ADM and allows to identify the fundamental rights at stake and the sector-specific legislation applicable to ADM. The Article calls for empirical observations and input from experts in other areas of public law to enrich and refine the proposed taxonomy, thus ensuring clearer conceptual frameworks to safeguard individuals in our increasingly algorithmic society.

Development of Electromobility in Poland as a Way to Reduce the Negative Impact of Land Transport on the Climate

Abstract Public authorities should pursue a policy ensuring ecological security for present and future generations. Furthermore, the protection of the environment is the responsibility of public authorities. Environmental protection means all activities and instruments counteracting the deterioration of the environment; it is particularly important in this respect to counteract the negative effects of environmental degradation on health. Under Polish law, climate protection law is one of the most intensively developing areas of public law. This is because the responsibility for environmental protection should lie with the state, as it has all the tools to achieve this goal. In Poland, climate protection issues have found their rightful place in public discourse. Stopping climate change is now covered by a multi-level public policy, in which the leading role is assigned to administrative law regulations. The development of electric vehicles has a significant impact on the decarbonisation of transport, which mainly relies on diesel and petrol. The popularisation of green vehicles requires strategic management of demand for petroleum-based fuels, which is undoubtedly a public task.

THE NEW DESIGN OF PUBLIC LAW CONCEPTS IN DIGITAL ECONOMY: TAXATION INFLUENCE ON FUNDAMENTAL REGULATION

The paper addresses the challenges generated by the new layout of the global economy, in general, and in the Central and Eastern Europe, in particular. The recent pandemic, energetic crises and military conflicts emphasize the influence of digitalization on the public law, from the design of the institutional mechanism to the new regulatory perspective of the fiscal treatment for the income generated by individual and natural persons. The particularities of the digital dimension of the global economy have justified the need to use similar/compatible regulation worldwide for almost all the fields of the public law. This tendency is even more dominant for the fiscal law field, a distinctive area of public law and the main tool used by the states to determine the state's annual income. It is expected that all the governments aim at maximizing their revenues, using the constitutional protection for the sovereign right to determine taxes. The result is often inefficient, as the states engage in a tight competition between each other for the larger part of the taxable income. The short-term benefit from such conduct is unbalanced by the mid- and long-term distortion of the economic activities, asking for innovative solutions. The recent developments in international organization negotiation and the domestic perspective on the fiscal regime of the digital income have determined changes in the design of the public law concepts, favoring the mutual agreements on taxation and undermining the role of the national legislations on the topic. The assessment of these recent evolutions in local, regional and international taxation shows important changes in the design of the public law concepts in the digital economy: the imperative to draw multilateral agreements on taxation and the challenges of constitutional law.

Subsidiary and the structure of property law

This article provides an account of the structure of property law based on the principle of subsidiarity. This principle holds that more centralized organizations, including governments, should fulfil a subsidiary role in relation to the individuals and groups of which they are comprised. While subsidiarity has been highly influential in the areas of public law, constitutional law, and international law, its relevance to property law has been underappreciated. Property rights distribute decision-making authority over resources to non-state parties. This promotes a number of interrelated benefits associated with subsidiarity, including the qualitatively distinct contributions made by individuals and groups to the common good, the instrumental benefits of decentralized decision-making, the intrinsic benefits of involvement in actions and decisions affecting oneself, and the development of virtues. However, the principle of subsidiarity also suggests important roles for public authorities, including assuring an appropriate distribution of resources in society and intervening where the private authority of owners fails to uphold the common good. In this respect, subsidiarity offers a distinctive understanding of the divide between private and public law. Private law doctrine appropriately provides owners with a significant sphere of presumptive authority, yet this is subject to broad powers of public authorities to alter the baseline where, in their judgment, the common good requires it. This article argues that the concept of subsidiarity can help to bridge the divide between progressive property theory and theoretical approaches that emphasize the authority of owners. It can also contribute to an understanding of the concept of property, public access rights to private property, property-based community governance, and legal protections for property rights.

Thoughts on the meaning content of the principle of local autonomy

Autonomy is a fundamental principle in many areas of public law, and particularly in relation to local self-government. The term itself is widely used, sometimes too widely. But what are the conceptual foundations of this principle? What are the components of this principle? Within the framework of this paper, I will examine some aspects of the principle of autonomy, without claiming to be exhaustive, in an attempt to shed light on the theoretical significance of the principle's role in relation to local self-government. The aim of this study is neither to describe current trends in the field of autonomy, nor to explore the reasons for the obstacles to its application. Instead, the study will seek to explore the concept on a dogmatic basis in order to make more effective reference to its components in the context of some of the current issues that can be associated with autonomy. In addition to examining the components, the study will seek to highlight the importance of the correct use of the concept in the protection of the right to local self-government.

The Measure of Public and Private Law (on Material of Ukrainian Legislation)

The article is about the phenomenon of guilt as measure of the public and private law. The guilt originally expresses itself as based on the causality. The legal science considers the guilt as the psychological attitude of the human Being, who has committed the offence towards its social consequences. The guilt as causal relation is localized between intent or negligent deed and caused damage. The form of guilt (intent or negligence) is a marker which allows us to distinguish the areas of private law and public law. The gross negligence is “gray area” between public and private law. So, the true ground of the civil responsibility is guilt as causa, and the determination of guilt as psychical attitude to the deed and its consequences is valid to the area of public law only.

Reflections on the Context of Public Law and Private Law on the Example of the Decision to Permit a Road Investment

The article aims to show the next points of contact between public law and private law by presenting the civil and administrative legal effects of the decision on the permit for the implementation of a road investment (including its amendment and repeal), referred to in the Act of April 10, 2003, on special rules for the preparation of and implementation of investments in the field of public roads. The reason for the author to analyze the topic was the fact that the author has noticed the increasingly stronger interpenetration of the areas of public law and private law and problems encountered in legal practice. The article is a synthesis of the civil and administrative legal consequences – sometimes unintentional – of issuing and changing the decision on the permit for the implementation of a road investment, which have their source in the unilateral, imperative action of a competent public administration body. It is also another voice in the discussion on the advisability of the classic division into the two oldest branches of law.

TOWARD A NEW COMPARATIVE PUBLIC LAW OF CENTRAL BANK LEGISLATION: Designing Legislative Mandates for Central Bank Private Securities Assets Purchases and Nominal GDP Targeting

Abstract What role could unconventional monetary policy – and particularly unconventional policies like private asset purchases under a quantitative easing or lender of last resort scheme – play in influencing economic growth directly? A wide literature in economics explores the pros and cons of using these policies. However, most studies also point to the uncertain and antagonistic legal basis for such purchases. In this paper, we show how the statutory mandate for nominal GDP targeting could best put in place the legal foundations for such asset purchases. We review the legislative and regulatory bases for private securities purchases made by central banks in a sample of countries. We discuss – if legislators and policymakers wanted to – how they might introduce clearer mandates to make such purchases into their public law. We finally show how legal authorizations for GDP targeting might (and probably should) provide for such authorisations. Our discussion sheds light on the fascinating and almost completely ignored area of public law, namely central bank law.

The Regulatory Shifting Baseline Syndrome: Public Law as Cultural Memory

In 2013, the U.S. Supreme Court declared unconstitutional the Voting Rights Act’s preclearance requirements for six states’ voting laws, and many of those states almost immediately enacted new voting restrictions, that disparately affected citizens of color. In the 1980s and 1990s, Congress deregulated financial markets, including dismantling protections that had been in place since the New Deal, allowing firms to introduce new forms of derivatives — and systemic risk — into the economy, leading to 2008’s housing crisis. In the early 21st century, state legislatures increasingly enacted exemptions from state vaccination requirements that allowed parents to skip their children’s vaccinations, setting the stage for resurgences of measles in 2015 and 2019. Since at least 2001, courts, federal agencies, citizens, and NGOs have focused on the Clean Water Act’s alleged intrusions into state sovereignty and private property rights in the context of “dredge and fill” permits, undermining the Act’s continuing ability to improve the overall quality of the nation’s waterbodies. All of these seemingly unrelated legal phenomena derive, at least in part, from the regulatory shifting baseline syndrome. In 1995, Dr. Daniel Pauly described the “shifting baseline syndrome” and its problems for fisheries management. Pauly posited that each generation of fishers and fisheries managers forgets what the ocean and its fisheries used to be, instead taking the current state — demonstrably impoverished from a historical perspective — as normal. The forgetting of history, in other words, makes opaque what the goals of fisheries regulation should be, or even could be. This Article brings the shifting baseline concept into public law, identifying for the first time a regulatory shifting baseline syndrome that can undermine the law’s ability to protect society at large. This syndrome arises when a long-existing public legal regime so successfully eliminates a societal problem that citizens, politicians, and lawmakers forget that the regime is in fact still working to keep that problem at bay. The syndrome is especially problematic in areas of public law where curbing human behavioral tendencies remains an important component of protecting public goods, benefits, or amenities, regardless of how secure the relevant public commons now appears. Acknowledging the syndrome thus challenges would-be law reformers to ask whether we should recover the historical lessons about ourselves and our collective abilities to harm society at large before dismantling the legal protections prior generations felt compelled to enact.

Revitalising Public Law in a Technological Era: Rights, Transparency and Administrative Justice

Author Yee-Fui Ng, Maria O’Sullivan, Moira Paterson and Normann Witzleb This article examines how public law should be revitalised in light of the increasing use of technology in government decision-making. As the recent controversy concerning the implementation of an automated debt recovery system by the Department of Social Services illustrates, the automation of government decision-making engages fundamental legal principles such as transparency, procedural fairness and reviewability. The use of technology in administrative decision-making in Australia therefore raises a number of critical, and interlocking, questions: Is Australian public law fit for purpose to protect individual rights in automated governmental decision- making? If not, what reforms are necessary and how should they be instituted? This article will consider these issues in relation to three specific areas of public law: privacy law, freedom of information, and judicial review. In doing so, it sets out concrete recommendations for the revitalisation of Australian public law so that it may become more value-compliant and consistent with emerging international best practice standards.

Správní činnosti v oboru státní služby

The paper analyses specifics of legal status of civil servants responsible for public governance at public authorities according to Civil Service Act nr. 234/2014. Civil servants enter into legal relationships with authorities which decide on behalf of state about appointment of state servant and about changes, termination and performance of service relationship. On the other hand, civil servants perform their work as dependant work and they are subordinated to superior persons (senior civil servants). Deciding about rights and duties of state servants belongs to area of public law, which is different to general regulation of work relationship according to Labour Code, which belongs to area of private law. Authorities executing governance of civil service principally release administrative acts, but also use different instruments as public law contracts or internal (service) regulations. The paper analyses specifics of this instruments in area of civil service.

Nondelegation in the States: Separated Powers & Sovereignty

American public law is on the precipice of a nondelegation revival. Yet scholars have largely ignored the greatest wellspring of American nondelegation law: that of the states. As a result, the nondelegation literature is badly in need of a broad and deep examination of state nondelegation. This article takes up that task by describing the kaleidoscope of contexts in which states apply the nondelegation doctrine. Significantly, state nondelegation reaches deep into public law and covers far more than the legislature-to-agency delegations that preoccupy the discussion at the federal level. This article analyzes this mess of state nondelegation jurisprudence, arguing that it can be explained coherently by two theories underlying nondelegation: the separation of powers and sovereignty. While these theories overlap to an extent, each supplies a distinct logic to nondelegation, thus motivating the doctrine’s disparate and varied applications. Finally, the article argues affirmatively that the Supreme Court ought to consult state nondelegation jurisprudence when it revives the federal nondelegation doctrine. The states’ experience counsels important lessons for the federal doctrine. For nondelegation supporters, state nondelegation indicates that a strong doctrine may require revising vast expanses of public law, especially the separation of powers. As a result, a revived doctrine may prove difficult to administer, though in a way few have recognized. Fortunately, where the nondelegation doctrine might overreach into other areas of public law, relatively straightforward doctrinal guardrails can be established so that a strong doctrine doesn’t prove to be an obstacle to effective governance.

Housing Law Judicial Review: Discrimination Cases and Access to Housing

1. As with so many areas of public law, developments in housing law litigation have continued apace over the last year. This article examines a selection of housing judicial review claims over the ...

Pozbawienie uprawnień wynikających z decyzji administracyjnej a realizacja zasady efektywności działania administracji

Deprivation of an entity of acquired rights deriving from an administrative act is possible through the combined application of administrative provisions of substantive and procedural law. The limits of durability acquired under an administrative decision rights are the constitutional principle of the protection of acquired rights and the general principles of administrative procedure. The permanence of the right acquired by the administrative decision is not absolute. Repeal or change of the administrative decision is possible only in the mode provided in the law, since the administrative decision makes use of the presumption of regularity. The deprivation of administrative and legal powers in the area of public law takes place in the context of an assessment of the implementation of an administrative decision carried out by a state body. This assessment is possible with the use of two procedural institutions for the expiry of an administrative decision and a substantive institution for the withdrawal of rights. The body assesses whether the addressee of an administrative act has implemented the administrative decision not only in accordance with its content but also the provisions of the generally applicable law. The deprivation of a party of an acquired right is often accompanied by the need to award damages (grant compensation). The procedure and premises for claiming compensation liability have been regulated in the provisions of substantive administrative law. The principle of the effectiveness of public administration bodies is one of the basic principles of administrative law. Its application is not limited only to the creation of law, but also includes the application of law by public administration bodies. The problem of the efficiency of operations of state bodies is of particular importance not only in the area of enforceability of an administrative decision, but also its authorising function. The efficiency of operations of entities in the State structure is assessed through the prism of the implementation of a given administrative decision.

Distributive Justice, Public Policies and the Comparison of Legal Rules: Quantify the “Price of Equity”

AbstractThis paper proposes a quantitative approach to study two methodological problems arising when a costly redistribution of resources is implemented through public policies or legal rules: (a) aggregating individual into social preferences and (b) choosing the object of maximization. We consider a redistribution intervention that reduces inequality but diminishes total wealth and we specify a set of social welfare functions combining different preferences aggregation methods and maximands. For each social welfare function, we calculate its “price of equity”, defined as the maximum fraction of total wealth that a society is willing to sacrifice in order to implement the redistribution. Comparing the prices for equity across different social welfare function specifications, we identify systematic relationships and we rank them according to the efficiency-equity orientation. Results show that social welfare functions characterized by aggregation methods conventionally considered equity-oriented may reject redistribution interventions that are evaluated as welfare-improving by social welfare functions using efficiency-oriented aggregation methods. Similarly, social welfare functions considered equity-oriented because using utility as object of maximization may reject distributive policies that are evaluated as welfare-improving by social welfare functions using wealth as maximand. We argue that the quantitative approach proposed, by expounding the trade-off between equity and efficiency connected to different social welfare functions, may prove useful in areas of public law where policy-makers have to engage in the choice of a normative criterion for the evaluation of social welfare. Additionally, our results may inform rule-makers interested in comparing the distributive effects of alternative legal rules in special circumstances where private remedies can efficiently achieve redistribution goals.

Tafsir MK Atas Pasal 33 UUD 1945: Studi Atas Putusan MK Mengenai Judicial Review Terhadap UU No. 7/2004, UU No. 22/2001, dan UU No. 20/2002

The rulings of the constitutional court to review the Act No. 7 of 2004 on Management of Water Resources, Act No. 22 of 2001 on Crude Oil and Natural Gas, Act No. 20 of 2002 on Electricity caused controversy. These decisions gives a different interpretation of Article 33 of the Constitution of 1945, which likely have implications for Indonesia’s economic development policy. Branches of production which is important for the livelihoods of people and natural resources, is placed in the area of public law rather than private. The consequences are arranged by state control rights as a collective representation of Indonesian society. Thus, the form that allows management of a joint is through cooperatives and the state delegation of the management of public goods to the non-state (cooperative), can only be done with the instrument of one-sided legal action.

The Impact of Legislation on Foreign Direct Investments in Slovak Republic

The condition of ensuring a permanent economic growth and development is an investment activity which includes the foreign direct investment (“FDI”). The issue of examination of FDI in the business environment, under existing conditions created by dynamically changing regulatory environment, in connection with the performance and efficiency of businesses, has an impact on the overall economic level of the country at last. A crucial component of the rise of transnational capital is the growth of FDI, shifting of investors' capital as a productive investment into one or more foreign countries. FDI inflow is determined by the entire legal system of a particular state. An inevitable factor influencing the decision to invest in a particular country is the quality and stability of legal regulation of the business environment and equally important factor is the enforcement of legal claims. The key role is played by procedural rules in this respect. Regarding the above mentioned, it should be emphasized that national legal regulation significantly determines the decision to invest in a particular country. Poor enforcement of law is considered as a significant competitive disadvantage in case of Slovak Republic. In the area of public law, the regulation of taxation plays a major concerning the impact on the business environment. As standard methods of scientific research for the given topic, methods of analysis, synthesis, deduction, and comparison will be used together with historic method.

Russia's new personal data localization regulations: A step forward or a self-imposed sanction?

The paper represents one of the first comprehensive analyses of Russian personal data localization regulations, which became effective at September 1, 2015. This work describes in detail the main components of the data localization mechanism: triggers of its application, scope, exemptions and enforcement. It also takes into account the official and non-official interpretations of the law by Russian regulators, some of which were developed with the participation of the author. Special consideration is given to the jurisdictional aspects of the Russian data protection legislation and the criteria of its application to foreign data controllers. The author also reveals the rationale behind the adoption of data localization provisions and analyzes their possible impact on foreign companies operating in Russia and implementation of innovative IT-technologies (Cloud computing, Big Data and Internet of Things). The paper concludes that most of the potential benefits of data localization provisions, i.e. in the area of public law, law enforcement activities and taxation. Nevertheless, data localization provisions may still have medium-term positive impact on privacy, since they force all stakeholders to revisit the basic concepts of existing personal data legislation (the notion of personal data, data controller, processing, etc.), thus serving as a driver for re-shaping existing outdated data privacy regulations and crafting something more suitable for the modern IT-environment.

Intuitions About Contract Formation

Legally, much depends on the moment that a negotiation becomes a deal. Unlike torts or civil procedure or any area of public law, the laws of promissory exchange only apply to parties who have manifested their assent to be bound. Even so, the moral norms of exchange and promise are quite firmly entrenched and more broadly applicable than just legal contracts. Norms of promise-keeping and reciprocity, interpersonal courtesy, community reputation — these kinds of intangible goods have real effects on contract behavior. For this reason it is especially surprising that intuitions about formation have gotten so little attention from legal and behavioral scholars. This paper offers five new empirical studies of commonsense approaches to contract formation. The first section of this Article surveys intuitions about what the law of formation is. In a world in which the vast majority of contracts are signed without the advice of counsel, most people have to draw inferences based on their background knowledge and beliefs. It turns out that the colloquial understanding of contract formation is about the formalization of an agreement rather than actual assent. In the second part of the Article, we tease out the intuitive relationship between formation and obligation. The law of contracts is very clear that parties’ obligations to one another turn entirely on whether or not they have mutually manifested assent to be bound. And, in fact, we find that behavioral results suggest that legal (or legalistic) formation does enhance commitment to a deal irrespective of its power to impose sanctions; it seems that the law has freestanding normative force. However, we also find that the subjective sense of obligation is not as black or white as the law would predict. Parties are influenced by the natural, informal obligations to one another that build over the course of a transaction, increasing their commitment to the partnership in stages rather than all at once at the moment of formation.