Administrative Law Perspective Research Articles

Legal Nature of the Commissioner for the Protection of Equality in Republic of Serbia // Upravno-pravni aspekti poverenika za zaštitu ravnopravnosti u Republici Srbiji

The subject of this paper is determination of the legal nature of the Commissioner for the Protection of Equality in legal system of the Republic of Serbia. The specific position and role in the legal system is examined from the perspective and methods of administrative law. Special attention is paid to the analysis of the legal nature of the Commissioner’s acts in the framework of his powers. Also, the paper analzyed certain issues related to the procedure before the Commissioner, as well as the connection between this procedure and the general administrative procedure. Based on the analysis of the legal position, the legal acts of the Commissioner, and the constitutional system of division of power, the author concludes that the Commissioner’s legal nature in the Republic of Serbia is predominantly administrative-legal.

Criteria for the Establishment of the Public Property Institution from the Perspective of General Administrative Law

Criteria for the Establishment of the Public Property Institution from the Perspective of General Administrative Law

The Analysis of Administrative Law to the Government Policy about Tax Exemption of Waqf Land Certification

The waqf land certification is free charged whereas the general land is not. The research analyzes the article 22 from the government regulation Number 13 Year 2010 concerning the government policy of tax exemption of waqf land certification based on public administration law. The purpose of the research is to understand and to analyze the reasons of government publishing this kind of policy in the perspective of Administrative Law. The kind of research is library research, it needs secondary data, which consists of the material of primary, secondary and tertiary laws. The approach is juridical normative and the analysis is qualitative. The result of the research explains that the government publish the policy of tax exemption with the objective to make Waqf land useful for the society, to accelerate of Waqf land legalization, to protect and to optimize the function of Waqf land. This policy is one effort to understand the waqf action that having a sense of religious service as well as having law certainty. The government policy is the implementation of Administrative Law function in order to create a clean and appropriate government with the good general government principal, such as legality, equity, justice, law protection, wisdom, general need implementation and smart action.

Розподіл влад в Україні: виклики та способи вирішення з перспективи адміністративного права

Розподіл влад в Україні: виклики та способи вирішення з перспективи адміністративного права

Asking the Right Questions : Interviewing in PIF Investigations

The current institutional set-up to fight EU fraud is considered unsatisfactory. With the creation of the EPPO, the definition of the offences it will investigate and prosecute, and the OLAF Regulation under revision, the EU has carved out a new institutional set-up. The objective, both from an administrative (OLAF) and criminal law perspective (EPPO), is to successfully investigate fraud and corruption affecting the EU’s financial interests. In addition to institutional and legal implementing steps, it is also important to consider what needs to be put in place in order to ensure the future quality of investigations, especially from the training perspective. This article presents some observations from the operational field with regard to what is arguably one of the major tools for enhancing the quality of PIF investigations: interviewing suspects.

Methodological basis for the study of corruption problems (administrative dimension)

The problem in the methodology of research in fighting corruption from the perspective of administrative law. Different approaches to research methodology corruption with current advances in philosophy, sociology and statistics. Forming copyright proposals to improvere search methodology corruption. In conditions of weak democratic traditions, imperfections National legislation and insufficient level of legal culture Of citizens, corruption has negative consequences for all layers Ukrainian society, demoralizes citizens and destroys their trust in State In developing state anti-corruption strategy and relevant Mechanisms to overcome corruption should be taken into account that this is a complex phenomenon. The causes of which are not so much in the imperfection of human behavior, as in Organization of power mechanisms. Despite the efforts made and some achievements in Ukraine There are still a number of reforms in the field of combating corruption. And get started Implement concrete measures to fight corruption is necessary from the local equal. Because, it is the bodies of local self-government that form the primary Corruption system of regulation of social relations, and is the basis for The spread of corruption within the entire state. Despite the large number of studies of economic, political,Legal and social factors contributing to the emergence of corruption is lackingWorks that directly address the problem of corruption in the bodies Local Government.Can not know The whole thing differently, as first to decompose it into separate elements, to find out Functions and interconnections, which in turn are conditioned by functioningThe system as a whole. This is the essence of the dialectic, which takes into account the contradictionKnowledge and is based on the principle of development, the method of convergence from Abstract, that is, underdeveloped, not filled with definitions, to Concrete, that is, developed, enriched by definitions. At the same time the move Abstract thinking corresponds to the actual state of things.When studying what constitutes the subject of research, great Values have such philosophical laws as the law of unity and struggle Opposites, the transition of quantitative changes to qualitative, negation of negation,As well as categories: causes and consequences, general, special and individual, Necessary and incidental, possibilities and reality, content and form, essence andPhenomena and so on. The research arsenal includes other general sciences. Methods which, in their totality, form the methodology of science, under which understand the system of certain the ories acting as a guiding principle, an instrument of scientific analysis, a means to implement the requirements of this analysis.

At the Intersection between Expropriation Law and Administrative Law: Two Critical Views on the Constitutional Court's Arun Judgment

In Arun the Constitutional Court held that section 28 of the Land Use Planning Ordinance (LUPO) vests all land indicated as public roads on a development plan in the local authority upon approval of such a plan. This includes land that is in excess of the normal need of the development. The appellant must hence be compensated for the "expropriation" of such excess land if the provision is to comply with section 25(2) of the Constitution. This ruling is problematic for both expropriation law and administrative law.
 In terms of section 25(2) four objections may be raised against the Arun decision. Firstly, it disregards the function of the public interest requirement for expropriation, as understood in view of the law-of-general-application requirement (which, in turn, is informed by the legality principle). The state cannot expropriate property for purposes that are ultra vires (or ulterior to) the authorising legislation. Yet the Arun court seems to allow just this by permitting the local authority to acquire land unrelated to the normal need of the development against payment of compensation instead of setting the attempted expropriation aside. The judgment, secondly, ignores the role of compensation under section 25(2). Merely paying compensation to an affected party cannot turn an invalid expropriation into a valid one, since compensation is merely the result of a valid expropriation and not a justification for it. Thirdly, it makes the distinction between deprivation and expropriation pivot on the effect of the property limitation, which is unable to properly distinguish between these two forms of limitation in all instances. Finally, Moseneke DCJ's ruling seems to afford an election to litigants who are affected by materially defective expropriations to choose whether to accept the expropriation and claim compensation or to have it reviewed and set aside under PAJA. This election, if it indeed exists, subverts the principles of expropriation law and may have negative repercussions for both expropriation law and administrative law, especially in view of the single-system-of-law principle.
 From an administrative law perspective the authors identify four considerations that could assist courts in determining whether administrative law should be considered, if not applied, in a given case. The first is the internal coherency of the law in view of the subsidiarity principles. The subsidiarity principles provide guidelines for courts to decide cases where two fundamental rights might be applicable. A principled approach is necessary in this context to ensure that the law operates as a single system and displays the positive characteristics of such a system. The fact that Moseneke DCJ preferred to award compensation to Arun instead of reviewing the expropriation under PAJA runs contrary to these principles and seems to result in an outcome which endorses – instead of prevents – administrative injustice. Secondly, the Constitutional Court's refusal to follow PAJA by reason of its being onerous on the appellant contradicts earlier case law where the Court held that time-periods under the Act cannot be circumvented by reason of their being burdensome. 
 

Theory of Legal Protection of Personal Information in Border Guard Administration Field

In recent years, with economic and social development, the importance of personal information protection increasingly prominent. But because of the legal system, and citizens' personal information protection consciousness is not strong, the frontier in the field of administrative personal information protection does not reach the designated position, leaks, the phenomenon of the infringement of citizens' personal information is often happened. In view of this, this article will link the actual situation of the frontier departments, and to the border areas of personal information protection, from the perspective of administrative law and regulations to strengthen the frontier in the field of administrative protection of personal information.

STATUS ADMINISTRACYJNOPRAWNY KOŚCIOŁA KATOLICKIEGO W POLSCE (PRZYCZYNEK DO DYSKUSJI)

The article is preliminary and includes proposals to include the legal position of the CatholicChurch from the perspective of Polish administrative law. Discourse were the status of the CatholicChurch in Poland from the perspective of its possible qualification as a self-religious or socialorganization performing tasks in the field of public administration. It was assumed that after all thisis a religious organization under public law. They were treated with the Catholic Church in Poland,as an entity of public administration that performs these tasks on the principle of decentralization,and not as a so-called. the administrative performing so. function commissioned. Public tasksCatholic Church does on its own behalf and on their own responsibility, not on behalf of and forthe benefit of the state. Is, therefore, a corporation governed by public law with special status.

Oversight of EU medical data transfers \u2013 an administrative law perspective on cross-border biomedical research administration

The notion of privacy has long had a central role in human rights law, not least in connection to health and medicine. International, regional and national bodies have enacted a number of binding and non-binding document for physicians and researchers to adhere to, in order to protect the autonomy, dignity and privacy of patients and research subjects. With the development of new technologies, the right to privacy has gained a new perspective; the right to protection of personal data within information and communication technologies. The right to data protection has been attributed an increasing importance within EU law. Accordingly, the use of health data in medical research in general and in biobank-related medical research in particular, has made data protection law highly relevant. In medical research involving biobanks, transferring human biological samples and/or individual health data is taking place on a daily basis. These transfers involve several oversight bodies, institutional review boards (IRBs), research ethics committees, or even data protection authorities. This article investigates the role of these national oversight bodies in the transfer of health data in cross-border research, from an EU law point of view. A special focus is laid on transfer of health data for research purposes from the EU to the US, in the light of the recently enacted EU-US Privacy Shield. The main question posed is how American oversight bodies for medical research can be expected to handle the increasingly strict EU requirements for the processing of health data in medical research review.

Public participation in the global regulatory governance of water services: Global administrative law perspective on the Inspection Panel of the World Bank and amicus curiae in investment arbitration

Water services are increasingly subject to global regulation, forming the global water governance. The World Bank's technical advice and the decisions of investment arbitration are prominent examples of such influence. However, because of the distance of their decision-making from the citizens and their institutional settings, they have raised legitimacy concerns. This paper applies the global administrative law framework to examine the roles and effects of participation procedures, namely the Inspection Panel at the World Bank and submissions by a third person (amicus curiae) in investment arbitration.

Catches to the right to be forgotten, looking from an administrative law perspective to data processing by public authorities

Public authorities process personal data. In most cases these data are processed because there is a legal obligation to do so, or because processing is necessary for the performance of a task carried out in the public interest. The right to be forgotten or to erasure will, in this situation, play a limited role in the protection of the rights of the individual. There is even a public interest in maintaining archives, thus in not forgetting. At the same time, the possibility exists that not forgetting might be more valuable for the protection of rights of data subjects then forgetting. In the case of data processing by public authorities, it is important that the processing is based on a law. A close watch should be held on the grounds that public authorities use to justify the processing. As the right to be forgotten will play a limited role in the protection of the rights of data subjects in the case of data processed by public authorities, it is important to emphasize the right of access and rectification of data. It is therefore essential that the controller is transparent to the public with regard to the processing of data.

The human right to water as a creature of global administrative law

A global administrative law perspective helps to make sense of the diversity of sources cited in support of the human right to water and sanitation and to explain how and why the concept might exert influence on a wide variety of actors other than states, including international institutions and private-sector investors and operators involved in the provision of water and sanitation services.

Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission

Sentencers, Bureaucrats, and the Administrative Law Perspective on the Federal Sentencing Commission

Nýskipan í ríkisrekstri: Þjónustusamningar hins opinbera og réttarstaða notendaþjónustu.

Í grein þessari er fjallað um réttindi notenda þjónustu þegar verkefnum hins opinbera hefur verið útvistað með þjónustusamningum byggðum á 30. gr. fjárreiðulaga. Umfjöllunin er í eðli sínu þverfagleg á sviði stjórnsýslufræða annars vegar og stjórnsýsluréttar hins vegar. Hugmyndafræðin, sem liggur að baki þjónustusamningum, byggir á þeirri hugsun að hægt sé að einkavæða verkefni hins opinbera án þess að það hafi nein áhrif á réttarstöðu þeirra sem njóta þjónustunnar. Út frá sjónarhorni stjórnsýsluréttarins er hins vegar horft til þess að verkefni stjórnvalda hafi ákveðinn tilgang og hlutverk ásamt því að um þau gildi ákveðnar reglur sem ekki síst sé ætlað að vernda þá sem njóta þjónustunnar. Þegar verkefni eru færð frá hinu opinbera til einkaaðila missi þessar reglur ef til vill marks og þeir sem þjónustunnar njóta kunni að skaðast og um leið bresti hugsanlega ábyrgðarleiðir innan stjórnsýslunnar. Niðurstöður benda til þess að nokkuð skorti á að lagaheimildir að baki þjónustusamningum sem og að innihald samninganna sjálfra sé nægilega skýrt.

Global Harmonization Through Public-Private Partnership: The Case of Pharmaceuticals

The harmonization activities of the International Conference on Harmonization (ICH) in the field of pharmaceutical marketing regulation perfectly illustrate the possible normative influence of non-binding instruments adopted by sub-national actors. The ICH is a hybrid organization composed of representatives of the pharmaceutical industry on one hand and the national regulation agencies of three regions on the other. An intergovernmental organization, the World Health Organization (WHO), is associated to the ICH activities through its observer status. The ICH has adopted more than 50 “technical” guidelines which have developed into global standards. It has thus become extremely difficult for national regulators to modify the criteria for drug marketing approval unilaterally. Some guidelines go beyond the standardization of technical requirements. They reflect commercial, political or ethical choices and pose complex legitimacy and accountability challenges. The analysis of the multi-level procedure and institutional framework of the ICH has so far not been conducted from a global administrative law perspective. A closer examination of the ICH process reveals a deficient structure and the need for the development of new legal standards. Some steps already taken by the ICH should be pursued further and could contribute a model for greater accountability and legitimacy for new forms of global administrative decision-making procedures.

The Role of Domestic Administrative Law in the Accountability of Transnational Regulatory Networks: The Case of the ICH

The literature on the accountability of transnational regulatory networks (TRNs) has focused on accountability measures that are available at the transnational level. This paper extends the analysis and examines the role domestic administrative law has to play in keeping TRNs accountable towards their internal and external stakeholders. To this end it conducts a case study of the International Conference on Harmonization (ICH), a network of drug regulatory authorities and industry associations that harmonizes drug registration rules, and examines it primarily from a U.S. administrative law perspective. The paper, first, demonstrates that domestic administrative law can have an important role in setting the procedural rules of TRNs. Second, it shows that domestic administrative law is important in maintaining the accountability of TRNs and regulators towards internal stakeholders (i.e. stakeholders within member countries), but that it has limitations that should ideally be complemented by accountability measures at the transnational level. The paper, third, demonstrates that although theoretically domestic administrative law could play an important role in setting off the TRNs’ disregard towards the interests of external stakeholders (stakeholders that are not network members), in practice this comes across serious problems. Accountability towards external stakeholders is, hence, best achieved through accountability measures at the transnational level.

Global Administrative Law and the World Trade Organization's Legitimacy Crisis

With the establishment of the WTO, world trade has been governed by a rules-based multilateral trading regime. However, the efficacy of the WTO has been questioned of late. This paper examines the functioning of the World Trade Organization (WTO) from an administrative law perspective. It tries to build a theoretical logic for, and suggests some steps towards a more legitimate WTO. It concludes that adoption of a more robust regime of administrative rules and procedures by international policymaking bodies would directly contribute to their capacity for good governance through the mechanism of procedural rigour and would indirectly enhance their legitimacy.

Seven Challenges for EU Administrative Law

This contribution has the objective to reflect on existing and impending challenges to EU public law from an administrative perspective. This will be undertaken against the fast-paced developments of the past 50 years linking various levels of government and administration in the Member States and the EU to administrative networks which are active also on the international scene. In this context, European administrative law has grown and evolved and has become an important, yet often not very fully understood, factor shaping the reality of policy implementation in the EU. 1 An Administrative Perspective on EU Law – Changing Perspectives of EU Administrative Law European integration through law is highly dynamic process. This paper makes an attempt to contribute to the thinking about EU public law by contextualising and giving an overview of some of the central aspects of the evolving scholarship necessary to tackle the challenges to the EU’s future as a legal system from an administrative law perspective. After an initial flourishing in legal literature and case law in the founding period of the European integration process, especially in the context of the ECSC, administrative law virtually disappeared from the horizon of EU legal scholars. The initial administrative perspective on European integration was a rather restricted and even tendentious one. In the context of the original EEC it was often associated more with the aim of denying the ‘state’ quality of the E(E)C than of attempting to encompass the real nature of legal relations within the early European Communities. The disappearance of this administrative perspective can be largely traced to the interest herwig.hofmann@uni.lu This paper is a footnoted version of a presentation I gave at the First REALaw research conference in Groningen on June 3, 009. I would like to especially thank Gerard Rowe for investing much of his time into developing and clarifying the ideas contained in this article. Many others have generously contributed their time to discussing the ideas therein. This came to be known under the idea of the Communities being the Member States’ special purpose vehicle or ‚Zweckverband’ for achieving certain limited policy goals. See for example H.P. Ipsen, Zur Exekutivrechtsetzung in der Europaischen Gemeinschaft, in: P. Badura, R. Scholz (eds.), Wege und Verfahren des Verfassungslebens (Beck Verlag, Munchen, 993), 4 5-44 .

Global Administrative Law Perspective of the WTO Aid for Trade Initiative

AbstractThe emerging Global Administrative Law (GAL) study has brought into the legal frontlines the need to hold global governance bodies more accountable for their rulings and activities, and how these institutions are adapting their actions to better respond to new global challenges as their legitimacy depends on their effectiveness in coping with them. The legitimacy challenge has become a pressing issue, forcing international organizations to open up their decision-making processes and to set up review mechanisms to oversee their actions. The recent WTO Aid for Trade (AFT) Initiative belongs to this new category of global action/forums that want to respond to legitimacy and accountability challenges. This innovative movement has provided the WTO Director General with the responsibility to launch and institutionalize an initiative to allow poorer countries to derive more benefit from the Multilateral Trading System. It has brought together a wide range of stakeholders including international aid-donor states, beneficiary states, international financial and development institutions, regional banks and regional institutions, private sector, NGOs etc. to discuss and shape the best way to achieve this aim. This article tries to assess the AFT Initiative against the principles advocated by GAL, in particular those related to participation, transparency, accountability and review.