Administrative Court Research Articles

Institute of Temporary Ruling in Administrative Court Proceedings, Practice of Common Courts and Comparative Legal Analysis with the Legislation of Other Countries

One of the fundamental goals of the legal state is the unwavering protection of basic human rights, among them, legal security and the guarantee of judicial protection of the rights. The preventive remedies of protection of a person’s Right in administrative court proceedings, as well as in generally Administrative Law, it is to give a special importance as the result of which the legal relationship arising between the physical person and administrative body based on Administrative Legislation is regulated and in turn, it is a guarantee of the protection of the plaintiff’s right for the implementation of an effective justice in the future. The problem of Delayed justice, which has a negative impact in economic, political and social perspective, an ‘’immediate react’’ need to be found in response.[1] The first part of article 31 of the Constitution of Georgia provides a person with the right to apply to the court for the protection of his rights, as well as the right for the fair and timely adjudication of the case. [2] The present paper examines the peculiarities of one of the measures of preventive protection of the right – The Institution of Temporary Ruling and the prerequisites for its use by the common court, as well as the current legal reality in terms of judicial practice. The paper also presents the research of the Institute of Temporary Ruling from a comparative legal point of view on the examples of Germany, France, Estonia and the United States of America. The paper analyzes mechanisms of legislative regulation in above mentioned countries and the approaches established in the theory regarding the Institution of Temporary Ruling. [1] Sierra de la S., Provisional Court Protection in Administrative Disputes in Europe: The Constitutional Status of Interim Measures Deriving from The Right to Effective Court Protection. A Comparative Approach, European Law Journal, [Vol 10]1, 2004, 42. [2] The first part of article 31 of the Constitution of Georgia, The Legislative Herald of Georgia, 24.08.1995, (in Georgian).

Analysis of Unlawful Acts in the Revocation of Nickel Mining Business Licenses

The large number of miners carrying out nickel mining activities in Indonesia is one of the reasons why many investors from within and outside the country invest in Indonesia, because of the urge to gain as much profit as possible. However, there are quite a few miners who do not fulfill the formal legal aspects, or carry out mining activities that violate the law. Based on this, the government conducted an evaluation by increasing supervision accompanied by imposing sanctions on miners who violate laws and regulations. The research method in this study is normative juridical by analyzing library materials, to conduct studies and analyzes in order to obtain alternative legal solutions for the analysis of unlawful acts in the revocation of nickel mining business licenses. The results of this study are that first, unlawful acts (PMH) are a legal concept that exists in civil law but are related to State Administrative Decisions, when the State Administrative Decision is detrimental to a person or legal entity in a civil manner. In fact, PMH is currently often used as an argument for plaintiffs in the State Administrative Court (PTUN). Second, PMH carried out by the government in revoking nickel mining business licenses in fact occurred in the revocation of nickel IUPs in several companies, precisely in 2022.

Shaping Administrative Activity (Legal Forms): A Legislative Approach

Purpose: The topic of legal forms in public administration is strongly influenced by the principles of good administration. In the Czech legal order, the Parliament acts as the rule-maker of statutory foundations for public administration, making it crucial to focus on the legislative approach to enacting legal forms. This paper examines the weaknesses in legislation related to the enactment of legal forms of public administration, specifically through the principles of legal certainty and predictability of law.Design/Methodology/Approach: The author analyses Czech legal norms, existing legal doctrine, and administrative court’s rulings in relation to the legislative enactment of legal forms of public administration. This analysis leads to categorisation of legislative techniques based on the clarity with which the legal form of public administration activity is enacted. The paper also includes a case study consisting of a qualitative analysis of the legislative process in a specific case, based on publicly available records of parliamentary debates during the legislative process.Findings: In the case under review, there was no proper discussion of the implications of removing the explicit designation of legal form during the legislative process. No case has been found in which the Constitutional Court, acting as a negative legislator, annulled a statute for failing to explicitly specify a legal form, either due to its removal or its absence from the outset.Academic contribution to the field: The article highlights that, for the public administration to function effectively as good administration, the rules governing its activities must be clearly defined. The findings encourage legislators to ensure that proper discussions regarding the legal form of administrative activity take place when enacting laws. Such expert debate during the legislative process is essential to ensuring the clarity of the laws under which public administration operates in a particular legal form. Circumventing the legislative process or failing to engage in proper debate disproportionately impacts legal certainty and the predictability of law.Originality/Value: This article presents arguments emphasising the irrefutable role of the legislature in creating clear rules for the exercise of public administration and, as a direct result, enabling public administration to function as good administration. It points out the importance of clearly referencing the legal form of public administration in the law. The categorisation of legal form designation aids in identifying patterns and trends, helping to isolate relevant issues and focusing research on specific legal questions.

Tackling Disinformation Through Public Administration Recommendations –The Czech Experience

Purpose: The aim of this paper is to critically evaluate the practice of public administration, in which it influences the addressees of public administration not through classical forms of public administration (e.g., administrative decisions) but by issuing recommendations to third parties, who then carry out regulatory interventions.Design/Methodology/Approach: The paper employs qualitative research methodology and a case study approach, focusing on the analysis of the specific situation in the Czech legal environment (including existing case law), which it frames as a broader issue that can be replicated and thus requires a more general solution.Findings: The text critiques the conclusion drawn from the Czech administrative court case law, which holds that public administration recommendations, if not legally binding, are not subject to judicial review. This conclusion suggests, at first glance, that public administration recommendations are an activity which has no legal limits. However, this interpretation is challenged in particular from the perspective of the rule of law. Specifically, the regulatory model outlined above, where public administration (the state) achieves its objectives by influencing third parties, raises concerns.Practical Implications: It is inadvisable to view non-binding public administration activity as incapable of infringing upon or otherwise influencing the rights of the addressees of public administration. Political accountability in this area seems inadequate, particularly because of a potential lack of transparency. On the contrary, changes to legislation and greater sensitivity from administrative courts towards these non-traditional forms of public administration might be advisable.Originality/Value: The topic can be considered novel, given the limited attention it has received in the literature. This is especially true for national literature (in the case of the Czech background on which the text is primarily based). While it has been explored within EU law in the context of debates about the nature of EU soft law, the issue under study does not align well with soft law (understood as a type of normative legal act, albeit legally non-binding). Therefore, only partial reference can be made to EU law. The topic of the paper is thus more closely related to the general principles of public administration rather than EU law, making it a presumably original contribution.

The Supreme Administrative Court’s Ruling on Compensation for a Business Restructuring: The Tax Administration Failed to Identify the Something of Value that Allegedly Had Transferred

In its ruling 2204/2024, the Supreme Administrative Court did not accept the Finnish Tax Administration’s approach to claim, in the conversion of a Finnish entity from a full-fledged operator to a service provider, that the transfer of something of value should have been compensated for without the identification of the “something”. The Finnish Tax Administration’s reassessment, which comprised the difference between the estimated values of the Finnish business before and after the restructuring, was overturned.

Opening the gate to bathers’ rights. Community-led process for the coast as a commons

The research fits within the complex framework regarding the relation between commons and care practices in the contemporary city, intercepting the theme in a peculiar context: that of the coasts. Coasts can be considered a particular form of public good: the beaches are part of the category of maritime property and are identified as a public good of collective belonging. In recent decades, Italy’s failure to conform to the Bolkenstein directive and the lack of national indications regarding minimum percentages of beaches dedicated to free enjoyment, have generated profound social inequalities. Specifically, the contribution explores the Naples coastline: an interesting field of investigation according to its condition of great difficulty in accessing the sea. These dynamics have led to growing community awareness and the denunciation of a management model that has become increasingly exclusionary. Starting from the experience of the appeal process to the Regional Administrative Court presented by Comitato Nazionale Mare Libero for the closure of the gate at the Donn'Anna beach, the contribution reflects on the possible spatial impacts of the committees’ movements to regain the right to the sea and on the possibility of including the coast in the emerging legal category of commons.

Upaya Peralihan Sertifikat Kepemilikan Tanah Apabila tidak Diketahui Keberadaan Penjualnya dalam Perspektif PTUN

The transfer of land ownership certificates is an important legal process in Indonesia's land system, regulated by various laws and regulations, such as the Basic Agrarian Law and its implementing regulations. The procedure for transferring ownership certificates begins with a legitimate sale and purchase transaction, followed by registration with the National Land Agency (BPN). However, in practice, obstacles often arise, one of which is when the seller's whereabouts are unknown, which can hinder the process of transferring land rights. In this situation, the buyer can take various legal actions, including filing a civil lawsuit in the District Court to obtain a court ruling confirming the legal transfer of rights, or submitting a request for a decree to the Administrative Court (PTUN) if BPN rejects the application for the transfer of land rights. The perspective of the PTUN legal procedure explains that the buyer can challenge the BPN decision if it is deemed contrary to the law or the principles of good governance (AUPB), with sufficient evidence to support their claim. In this case, PTUN plays a role in providing justice and legal certainty for the aggrieved party. Therefore, even when the seller’s whereabouts are unknown, through the appropriate procedures and legitimate legal actions, the buyer can still acquire ownership rights over the land purchased.

The Interaction between Administrative Courts and Investment Tribunals in Egypt

The Interaction between Administrative Courts and Investment Tribunals in Egypt

Juridical Study on the Cancellation of Land Certificate by Proof of Power Endorsement in the Review of Law No. 5 of 1960 concerning the Basis of Agrarian Law (study of decision No. 3/G/2021/PTUN. BDG)

This study discusses the cancellation of land ownership certificates based on evidence of verponding eigendom (BEV) in the framework of Indonesian Law, especially by Law No. 5 of 1960 concerning Agrarian Principles. The study aims to explore the legal basis, procedures, and implications of cancelling land certificates when administrative defects or court decisions have permanent legal force. The research method used is normative juridical with a descriptive approach, analyzing the Rule of Law and the case of Decision Number 3/G/2021/PTUN case. BDG. The study results show that the certificate can be cancelled if administrative, legal defects or the ratification of power are not by the procedure. In addition, court decisions have an essential role in determining the validity of certificates. The implications of this study show the importance of strengthening land administration in the National Land Agency (BPN) to increase legal certainty for landowners and reduce the potential for ownership conflicts in Indonesia.

Perluasan Kompetensi Pengadilan Tata Usaha Negara dalam Mengadili Tindakan Faktual Pemerintah

Decisions and decrees as legal instruments of the government in carrying out legal actions unilaterally, can be the cause of legal violations for citizens, in Law Number 5 of 1986 concerning State Administrative Courts and its amendments, the law explains that the object of state administrative disputes is that which contains legal actions that can have legal consequences for a person or civil legal entity, at least there is ease for the public to sue the government and request the cancellation of decisions made by the government, but due to the expansion of objects in Law Number 30 of 2014 Article 87 letter (a) includes written decisions, it also includes factual actions. Therefore, the problem formulation in this research is whether the state administrative court has the authority to adjudicate factual government actions that harm the community, how legal protection for people who are harmed by factual government actions. This research is a normative legal research with statutory, conceptual, historical, and doctrinal approaches that apply to determine the rule of law as a whole. The results showed that the expansion of the competence of the State Administrative Court to adjudicate factual actions of the government is not competent because it cannot cause legal consequences because it is not in line and contradicts what is regulated in Law Number 5 of 1986 concerning State Administrative Courts and its Amendments, the public does not get legal protection through the State Administrative Court as a result of the factual actions of State Administrative bodies/officials. Suggestions from this research are that factual actions should be removed or eliminated from the competence of the State Administrative Court and there is no need to expand the object of State Administrative disputes, for people who feel harmed by factual actions of State Administrative bodies/officials should file a lawsuit against the law to the district court.

Freedom of Association Doctrine in Finland

Abstract Freedom of association in Finland is an old, fundamental right protected by the Constitution. However, the legislation protecting the right is from the period before the fundamental rights reform of 1995 following Finland’s accession to the Council of Europe in 1990. Key issues are freedom of religion in the registration conditions of religious communities and mandatory membership in student unions. In addition, the Supreme Court and the Supreme Administrative Court have issued rulings that have significantly shaped Finland’s doctrine of freedom of association.

Problematika Kepatuhan Pejabat Tata Usaha Negara dalam Eksekusi Putusan Pengadilan Tata Usaha Negara

The regulation of the execution of State Administrative Court (TUN) decisions in Law Number 51 of 2009 concerning the Second Amendment to Law Number 5 of 1986 on State Administrative Court does not include a mechanism for executing TUN decisions, which in practice has caused many problems that undermine legal certainty and justice for the public. The focus of the writing is to provide an understanding to the public about the urgency of implementing execution in administrative court decisions. The main issues include two aspects: the obstacles faced by administrative officials in executing administrative court decisions, and solutions to address the compliance problems of administrative officials in executing administrative court decisions. The research method used is a normative research method. The research findings indicate that the obstacles in the implementation of TUN Decisions are due to the non-compliance of TUN officials and the lack of enforcement power for TUN decisions. The solution to address the compliance issues of TUN officials in executing TUN Decisions is to file a maladministration complaint with the Indonesian Ombudsman to exert pressure and revise the PTUN law to provide enforcement measures against the relevant TUN officials.

Sankcje za wyłączenie gruntów leśnych z produkcji w świetle doktryny i orzecznictwa – głos w dyskusji

The Act of 3 February 1995 on the protection of agricultural and forest land in Article 28 provides for sanctions for the exclusion of agricultural and forest land from production contrary to the provisions of the Act (paragraph 1) or without a decision authorising the exclusion in the case of land which has been designated in the local spatial development plan for non-agricultural or non-forest purposes (paragraph 2). In the first case, the authority shall set a fee of double the amount due, and in the second case, the authority shall issue a ‘legalisation’ decision based on Article 12 and increase the amount due by 10%. The provision of Article 12(6) of the Law on the Protection of Agricultural and Forestry Land also provides for the possibility of reducing the amount due by the value of the land in accordance with the market price. The possibility of applying Article 12(6) in the case indicated in Article 28(2) of the Agricultural and Forest Land Protection Act is problematic. It should be emphasised that the content of the provisions in question has not changed since 1995. They were treated as two different legal situations and did not give rise to any doubts in practice or jurisprudence. It was accepted that the authority obliged to issue a legalisation decision had the right to apply Article 12(6). The position of administrative courts has been different for several years now, according to which the provisions of Article 28(1) and (2) should be treated jointly, as they both provide for sanctions, although they constitute separate editorial units. In the doctrine approval is also found for the new views of the judicature accepting that in the case indicated in Article 28(2) it is not possible to apply a reduction in the amount due by the value of the land. The practice presented by the regional directorates of the State Forests, on the other hand, is very diverse. The problem that has arisen requires that the various positions be voiced and evaluated.

Аdvantages of the specialization of judges in matters of administrative litigation

The institution of administrative litigation is an important branch of the legal system, which deals with the resolution of disputes and conflicts between the public administration and citizens or other private entities. This institution is essential for ensuring compliance with legality and fairness in the activity of the public administration and for protecting the rights and interests of citizens. The main role of the administrative litigation courts is to control the administrative acts issued by the authorities and to check whether they respect the law and the fundamental rights of the citizens, and the specialization of the judges will improve the quality of justice. In the same way, the efficiency of the courts will be improved. The specialization of judges is necessary due to increasingly complex legislation and the high workload of judges. This means that, since a judge examines only one type of file, for example in the matter of administrative litigation, then the decisions issued by him will be more qualitative. And this is because the magistrate works only in the field of administrative justice.

Newly-imported Car Re-exported and Return of Consumption Tax: A Commentary on the Supreme Administrative Court Judgment of Case Y112 Pan-Chi No.537

Newly-imported Car Re-exported and Return of Consumption Tax: A Commentary on the Supreme Administrative Court Judgment of Case Y112 Pan-Chi No.537

Taxpayer's Obligation to Collaborate in Investigations Focusing on Three Administrative Court Decisions

Taxpayer's Obligation to Collaborate in Investigations Focusing on Three Administrative Court Decisions

Factors Considered for the Assessment of Risk in Administrative Review Boards of Canada: A Scoping Review

Background: This scoping review examines the risk factors considered in assessing the dangerousness of individuals found Not Criminally Responsible on Account of Mental Disorder (NCRMD) in Canadian administrative courts. This review aims to identify the factors used by mental health review boards during annual case reviews to guide decisions on detention or release. Methods: Using a scoping review approach following PRISMA guidelines, this study analyzed research across multiple databases to identify relevant studies focusing on risk assessment for NCRMD cases. Results: The findings indicate that five primary categories of risk factors—historical, clinical, behavioral, legal, and miscellaneous—are influential in the decision-making process. Historical factors, such as past violence and early psychiatric contacts, are critical in predicting future risk. Clinical factors, including psychiatric diagnosis and treatment adherence, are key to evaluating current and potential future risks. This study reveals variability in the application of standardized risk assessment tools, highlighting a need for more consistent practices across Canadian jurisdictions. Conclusion: This review concludes that, while a multifaceted approach to risk assessment is essential for balancing public safety with individual rehabilitation, further research is needed to refine these processes and establish more uniform standards for managing NCRMD cases in forensic psychiatry.

La régulation des compétences juridictionnelles dans la CEMAC

Abstract On 23 December 2021, the Littoral Administrative Court, rendered Judgement No. 416/QD/2021 in the case of AYINDA Germain v Organe de Gestion de la Carte Rose CEMAC. By this decision, the national judge proceeds to a national recognition of a general principle of CEMAC Law, that of the separation of functions between the Community Court of Justice and the national jurisdictions. To do this, it mobilizes its community functionality subsequent to ontological jurisdictional subsidiarity to the CEMAC legal order. However, if this is an unprecedented decision in terms of the legal symbolism it contains, it also has the merit of highlighting the insufficient appropriation of CEMAC Law by community litigants.

Tax illegality in the context of criminal and penal fiscalliability

Illegality is one of the conditions for a crime. This condition is the most important level of connections betweencriminal law and other branches of law. These relationships are weaker in terms of mala in se, which violates thebasic principles of interpersonal relations, while they are stronger in terms of mala prohibita, which violates detailednormative regulations. As a rule, this group includes tax crime, regardless of whether fiscal penal law orcommon criminal law is applied (the latter concerns VAT fraud and invoice forgery). In both cases, the basis forcriminal liability is a violation of tax law regulations (tax illegality). As a rule, tax law eludes the intuitive understandingof illegality (denial of legality). The main part of tax law provisions regarding the construction of taxesand the assessment of tax liability does not contain typical prohibitions or orders, but regulates the effects ofprivate law transactions, and the source of tax illegality will be the difference in views on the interpretation of theprovision between the taxpayer and the tax authority or administrative court. To the extent that the tax authoritydoes not issue a decision determining the tax liability (tax arrears), there is a presumption of the correctness ofthe tax declaration, which calls into question the authority of the criminal court to adjudicate a tax offense (to theextent that the statutory features of a prohibited act include incorrect declaration of tax).

A New Era in the Implementation of Rehabilitation and Compensation Rulings in State Administrative Courts

The implementation of court rulings on rehabilitation and compensation in the State Administrative Court has entered a new era with the issuance of execution guidelines for the supervision of rulings with permanent legal force by the Head of the State Administrative Chamber of the Supreme Court of the Republic of Indonesia. These guidelines mark the first time in the history of the Supreme Court that a compensation amount has been reassessed and determined by the Serang State Administrative Court due to the failure to implement rehabilitation in an employment dispute. The compensation awarded does not refer to Government Regulation No. 43 of 1991, which limits compensation to between one hundred thousand rupiah and two million rupiah, but instead is based on the actual losses of the petitioner. This practice has set a positive precedent for the execution of compensation or monetary payments, which is expected to be followed by other State Administrative Courts. It is hoped that the Plaintiffs/Execution Applicants will follow the legal enforcement procedures outlined in the Minister of Finance Regulation Number 80/PMK.01/2015 regarding the Implementation of Legal Decisions, enabling the realization of compensation payments, and it is recommended that the Minister of Finance execute the legal decisions, especially the Supreme Court's re-determination regarding the compensation payment amount, so that justice for the Plaintiffs/Execution Applicants can be fully realized.