System Of Administrative Courts Research Articles

Idea oraz istota kontroli sądowoadministracyjnej (zagadnienia wybrane)

The article discusses selected issues regarding court-administrative control. The Polish perspective has been chosen as a reference point for the deliberations. The main problem is the concept of court-administrative control. It seems that this category determines the functioning of the administrative justice system. The essence of court-administrative control was presented based on Polish regulations: the Constitution of the Republic of Poland, the Law on the System of Administrative Courts and the Law on Proceedings before Administrative Courts. The essay also presents the idea of court-administrative control – also from a comparative perspective, with reference to the German and French models. The principle of separation of powers has become a critical point of reference. It turned out that it does not contradict the presented understanding of the concept of court-administrative control. The approach to control was compared with possible models of adjudication: cassatory and reformatory adjudication. Thinking about a certain idea of administrative justice, this is probably the most basic determinant of the role and functions of this branch of the justice system. The right to a court – its understanding and possible scope – is also important for the conducted considerations.

Система административных судов в Кыргызской Республике: становление, особенности, направления совершенствования

An important result of the judicial reform in the Kyrgyz Republic is the adoption in 2017 of the Code of Administrative Procedure and the creation of a system of administrative courts. The article shows the specifics of the model of administrative justice that has developed in Kyrgyzstan. Based on the analysis of legislation and law enforcement practice, a set of measures for its further improvement is proposed: changing the territorial organization of the courts of appeal, ensuring the possibility of using digital technologies in the administration of justice, restoring the supervisory authority, clarifying a number of administrative procedures.

The system of administrative courts of the Federal Republic of Germany: organization and functioning

The article is devoted to the organization and functioning of administrative courts of general and special jurisdiction in the Federal Republic of Germany. Administrative justice in Germany is an independent branch of judicial power. It is represented by administrative courts of general and special jurisdiction and is separated from constitutional, general courts and courts of labor disputes.
 The system of administrative courts of general jurisdiction in Germany covers three levels: the administrative courts, the higher administrative courts of the states and the Federal Administrative Court in Leipzig. The administrative court is the court of first instance for most administrative proceedings. The higher administrative courts of the federal states are the appellate and cassation instance of the administrative courts. Each federal state has a Supreme Administrative Court, the states of Berlin and Brandenburg share a Supreme Administrative Court, which, with the exception of Bavaria, Saxony- Anhalt and the city-states, are not located in the capital of the state to emphasize their independence from the administration in terms of location. Higher administrative courts are courts of first instance in cases of judicial review of laws and regulations, prohibition of associations by state bodies, and approval of implementation of certain infrastructure projects. The Federal Administrative Court, located in Leipzig, is the court of appeal and cassation on matters of law. The legislature also gave the Federal Administrative Court first-instance jurisdiction in public law disputes between the federal government and non-constitutional Länder, bans on mergers by the Federal Minister of the Interior or approvals for certain infrastructure projects. In these cases, the Federal Administrative Court has jurisdiction of both first and last instance.
 A feature of administrative justice in Germany is the presence of special courts of administrative justice – financial and social courts with appropriate organization and functioning. The issue of the status of judges of administrative courts, non-professional judges, representatives of public interest, judicial administration, competence and jurisdiction was considered.

The Role of State Control in the Implementation of Legislation on Local Self-Government

This study aims to identify and solve problems related to the implementation of legislation on local self-government through state control mechanisms. The current national legislation of Ukraine has several shortcomings in this area. The system of administrative courts is designed to resolve these issues. Control functions of the state about local self-government bodies can be subject to abuse of power, as evidenced by the lack of the expected efficiency. Moreover, the state currently exercises administrative, financial, parliamentary, and judicial control. It is proposed to single out public control as a separate form to eliminate the existing shortcomings of the practical application of the control functions of the state about local self-government. The lack of unity in the practice of applying the current rules of law on state control in this area shows that the problems related to the protection of local self-government bodies from state intervention have not been resolved. Local self-government bodies have only judicial means of protecting their independence from the state. This creates problems in ensuring balanced territorial development. Therefore, further research should focus on studying the possibilities of performing the control function in the field of local self-government not only by the state but also by the beneficiaries and civil society institutions.

Forced Money (Dwangsom) in the Indonesian State Administrative Court System and Astreinte in French Conseil d'État

The administrative court system in Indonesia shares fundamental similarities with the state administrative court system in France. This study aims to conduct a comparative analysis of the judicial systems in Indonesia and France, specifically focusing on examining the regulation of forced money penalties (dwangsom) in Indonesia. It has been around for about fourteen years since Law Number 51 of 2009 concerning the Second Amendment to Law Number 5 of 1986 concerning the State Administrative Court ("State Administrative Court Law); there are no implementing regulations, thus hindering the imposition of forced money in the decisions of the State Administrative Courts in Indonesia. As per the author's assertion, this circumstance can potentially diminish the effectiveness of the State Administrative Courts in Indonesia, undermining their ability to enforce judgments. In the context of legal matters, it is noteworthy to mention that the French Conseil d'État has taken measures to govern the issue of forced money penalties (astreinte), specifically regarding their execution and associated costs. The study used normative juridical. It also used a comparative method to normative juridical methods to analyze Indonesia's principles, norms, and legal system. Study findings indicate the urgent need to establish regulations on imposing forced money penalties within the Indonesian Administrative Court. This is crucial to mitigate challenges associated with enforcing forced money decisions, minimize financial losses resulting from errors in official services, and address the legal uncertainty surrounding the determination of forced money costs.

Legal guarantees of lawyers’activities with respect to the provision of free secondary legal aid in the administrative court system

The research was aimed at ascertaining the content of legal guarantees of the lawyer's activity in terms of rendering free secondary legal aid in administrative proceedings. With the help of general and special methods and cognition, it has been shown that the legal guarantees of a lawyer's activity as a subject of rendering free secondary legal aid have the following characteristics: 1) guarantee the freedom, without hindrance, of the exercise of the rights attributed to the lawyer and the due fulfillment of the duties attributed to the obligations; 2) the set of means, modalities and conditions that make up the content of the guarantees are always set at the appropriate regulatory and legal level; 3) they begin to operate after the occurrence of legal events that are related to the acquisition of special rights and obligations by the lawyer, and; 4) it is a component of the more general legal category "guarantee of defense". By way of conclusion, we can state that the legal guarantees of the lawyer's activity depend for their success on several factors: institutional, legal and contextual, which require particular treatment by future research.

Axiology of the Law of the European Legal Space and the Development of the Administrative Court System in Poland

The primary objective of the study was to determine the unique characteristics of the axiology of the law of the European legal space and its impact on the development of the administrative courts system in Poland by indicating its rooting in legally expressed values, as well as in extra-legal values that are common axioms of the European legal space discussed herein. It was noted that international law – which is the background of the study – determines the basis for the operation of a democratic state, thus exerting a fundamental and significant influence on the formation of standards of democratic states in Europe, including the administrative court system in Poland. The achievement of the primary objective of the deliberations will be assisted by two intermediate objectives. The first one, seeking to lay the foundations for the introduction of the aforementioned “European legal space” category as a normative category that includes a common axiology of law, which underlies the democratic state, including the nature of human rights, through the analysis of the legal and non-legal norms that form that category. The achievement of the second intermediate objective, on the other hand, will make it possible in fine to treat that space as a normative and axiological concept to rot the unique structure of the administrative court system in Poland as one of the structural elements of the democratic system. In the literature on the subject, the issue of the axiology of the law of the European legal space from the standpoint of its impact on the administrative court system in Poland has not been analyzed in a comprehensive manner, and the available publications only partially address this topic, which prompted the study of the issue stated in the title of this paper. By setting the framework for the deliberations, they were narrowed down to the European legal space, which was considered to be the normative space of influence of European international organizations, namely the Council of Europe, the European Union, and the Organization for Security and Cooperation in Europe. The purpose of the specific scope of the conducted analyses have resulted in the use of specific research methods. The dogmatic-legal method was the leading method, and it is present virtually all parts of the deliberations. The position of the doctrine was analyzed Polish and foreign monographs and papers, as well as acts of universally applicable international law and those of a regional nature. The case law of international courts was also analyzed. The author made an extensive use of the legal-comparative method. It proved useful in the search for a way to define the concept of the European legal space, as well as other concepts, due to the need to confront the legal achievements of the international organizations that make up that space.

The Jurisdiction of Administrative Courts and Common Courts in the Industrial Property Cases from a Historical Perspective

The origins of the administrative court system go back to the period of building of the system of government in the Second Republic after Poland’s partitions and are associated with the establishment of the Supreme Administrative Tribunal (SAT) in 1922. Significant changes were made to the administrative court system by the Polish Constitution of April 2, 1997, which, in Article 175(1), stipulates that administrative courts – in addition to common courts and military courts – administer justice. Administrative courts are therefore a separate part of the judiciary based on a two-instance adjudication system. In this paper, the author presents the origins of the administrative court system, including the Supreme Administrative Tribunal, the Supreme Administrative Court (SAC). The author indicates the models of the administrative court system, its essence, and the role it plays in the justice system. Then she analyzes the jurisdiction of administrative courts in industrial property cases from a historical perspective An interesting issue in this context is the existing dualism of the consideration of industrial property cases by administrative courts and by common courts. An important change that came into effect on July 1, 2020 pursuant to the Act of February 13, 2020 on amendments to the Code of Civil Procedure (CCP) was the introduction of separate proceedings in the intellectual property cases and the establishment of the so-called IP courts (intellectual property courts), and the impact of these changes on the development of relations in terms of the jurisdiction of administrative courts and common courts.

The Supreme Administrative Tribunal on Civil Status Records. A Case Law Review

In interwar Poland, civil status records were kept under five separate legal regimes, which the Second Polish Republic inherited from the different partitioning powers. Only the Prussian and Hungarian systems, which were in force in the western voivodeships and in Spiš and Orava, were fully secular and professional. In the central, eastern, and southern voivodeships, the civil status records of the majority of the population were combined with church records, and thus were kept by the clergy. The cluster of outdated regulations, which were ill-adapted to the new state and were often mutually exclusive, caused a host of registration problems in each of the five systems in operation. Due to the unsuccessful attempts to unify this system throughout the country, efforts were made to organize it not only through legislation and ministerial circulars, but also through court judgments, including those issued in the administrative court system. The present paper analyzes eight judgments of the Supreme Administrative Tribunal that have been published in the official Collection of Judgments, as well as four rulings of the Tribunal presented in other sources on civil status records and related issues. The resulting overview is intended to present how the various provisions on civil status records were interpreted in the conditions prevailing in interwar Poland, as well as to illuminate the nature of the cases considered and their relevance in terms of their impact on further operation of the civil status records system.

The Administrative Court System in the Face of Non-Vaccination of Children. Challenges and Prospects for the (Still) Emerging Line of Jurisprudence

In recent years, there has been a heated public debate about mandatory vaccination of children. The COVID-19 pandemic further underscored the importance of vaccination and the desirability of vaccination for the protection of public health and the health (as well as life) of the individual. Nevertheless, the rise in activity and popularity of anti-vaccination movements has clearly contributed to the upward trend in the number of non-vaccinated children that we have seen since 2010. Statutory representatives of children who oppose their mandatory vaccination cite a variety of reasons, taking advantage of the imperfect legal system. The fines imposed to compel mandatory vaccination, as well as the conduct of administrative enforcement proceedings in this regard, are often challenged in administrative courts. It is of great importance that administrative courts are increasingly referring to the constitutionally protected values, as well as to the axiological justifications for the functioning obligation to vaccinate children. Given the nature of the obligation, this seems understandable, but nevertheless somewhat intrusive into the constitutional sphere, which is reserved for the Constitutional Tribunal. The purpose of the paper is to reconstruct the formation of the line of jurisprudence of administrative courts in cases involving the mandatory vaccination of children. The course of discussion will lead to a full analysis of the grounds of the grounds for the cited judgments and their consistency with the emerging line of jurisprudence on the issue. Particular attention was paid to the references made by the adjudicating panels to the legally protected values of an individual and universal nature. For this purpose the Author used the historical-legal method and the method of analysis of court jurisprudence.

Analysis of the Development of the State Administrative Court System (Case Study of Decision No. 35/G/2019/PTUN.SRG)

Sistem Peradilan Tata Usaha Negara di Indonesia terus mengalami perkembangan seiring dengan kemajuan ilmu pengetahuan. Perkembangan ini dapat dibuktikan dari pengesahan UU No. 9 Tahun 2004 dan UU No. 51 Tahun 2009 terkait perubahan UU No. 5 Tahun 1986 tentang Peradilan Tata Usaha Negara. Selain oleh undang-undang tersebut, perkembangan sistem Peradilan Tata Usaha Negara juga dipengaruhi oleh UU No. 30 Tahun 2014 tentang Administrasi Pemerintahan. Adapun salah satu perkembangan yang paling terlihat adalah adanya perluasan subjek dan objek dalam sengketa tata usaha negara. Pengertian Keputusan Administrasi Pemerintahan/Keputusan Tata Usaha Negara menurut UU No. 30 Tahun 2014 berbeda dengan pengertian menurut UU No. 5 Tahun 1986. Hal yang membedakan adalah dalam UU No. 5 Tahun 1986, keputusan harus bersifat konkrit, individual, dan final serta menimbulkan akibat hukum bagi orang atau badan hukum perdata. Sementara, menurut UU No. 30 Tahun 2014 hal tersebut tidak disyaratkan. Dengan adanya perluasan ini, maka kewenangan PTUN dalam mengadili suatu KTUN semakin meluas. Salah satu contoh penerapan dari perluasan objek sengketa ini adalah dengan adanya Putusan PTUN No. 35/G/2019/PTUN.SRG yang mengabulkan gugatan 6 mahasiswa kepada Direktur PKN STAN atas objek sengketa berupa surat keputusan yang menyatakan bahwa 6 mahasiswa ini tidak lulus dalam ujian. Majelis Hakim dalam amar putusannya memutuskan untuk mengabulkan gugatan Penggugat dengan pertimbangan bahwa Keputusan tersebut dibentuk tanpa memperhatikan Asas-asas Umum Pemerintahan Yang Baik yaitu asas kecermatan dan asas penyelenggaraan tertib penyelenggaraan negara.

State and Law in the Thinking of Sylwester Zawadzki (1921–1999). A Few Reflections in Connection with the Establishment of the Supreme Administrative Court in 1980

This paper presents a discussion of selected issues related to the state and law in the thinking of Sylwester Zawadzki (1921–1999) a lawyer and state activist of the People’s Republic of Poland. The text includes reflections on the sources of his worldview and the course of his academic and professional career, and, most importantly, on the content of selected research and observations, of which this co-founder of the Supreme Administrative Court was the main contributor. The purposes of this paper include showing the sources of S. Zawadzki’s intellectual, scientific, and political inspirations that may have influenced and determined his commitment to the establishment of the administrative court system in the People’s Republic of Poland at the end of 1979 and beginning of 1980. There is no doubt that S. Zawadzki then played one of the key roles in the process of establishing this judicial institution in the political system of the People’s Republic of Poland. By virtue of his position and connections in the Polish United Workers’ Party (PUWP), he played perhaps the decisive role that helped break the resistance of some groups in the government, led by Prime Minister Piotr Jaroszewicz. In this regard, the paper also aims to recall the achievements of this lawyer and provide materials for further research on the biography of S. Zawadzki, as well as his teachers and colleagues. The paper is based on S. Zawadzki’s memoirs, his scholarly and journalistic publications, the publications of his teachers and colleagues, as well as selected archival materials (including those from the Archives of New Records and the Archives of the University of Warsaw).

The Right to a Trial When Applying for Public Funds for Educational Tasks in the Light of the Evolution of the Case Law of Administrative Courts

In the modern history of the Polish administrative court system, an important legal issue that still needs to be clearly resolved is the jurisdiction of courts over acts and actions taken by the public administration other than administrative decisions or rulings. This issue arises in the area of the process of applying for public funds for the performance of educational tasks by public and non-public units of the system of education (with regard to the so-called education subsidies provided from the budgets of local and regional government units), as well as in the area of receiving from the state budget the educational part of the general subvention by local and regional government units themselves. The dispute concerning the jurisdiction over the determination and transfer of education subsidies, which started with the dispute over the legal nature (civil or administrative law) of the relationship arising from the education subsidy, continued for more than 20 years and was only brought to an end by the 2016 amendment to the Act on the system of education. In contrast, the analogous dispute concerning jurisdiction of courts in cases involving the determination of the value and transfer of the educational part of the general subvention to local government units actually remains unresolved to this day. This paper presents an analysis of the evolution of the case law of administrative courts in the cases mentioned above. The primary purpose of this analysis was to formulate conclusions de lege ferenda, the consideration of which would lead to the real and effective exercise of their rights (including the constitutional right to a trial) by the bodies that run public or non-public units of the system of education, as well as by local government units.

Foreign Experience Regarding Operation of Autonomous System of Administrative Courts

Foreign Experience Regarding Operation of Autonomous System of Administrative Courts

Legal Implication on Supreme Court Decision that Conclude Contract of Work has a Lex Specialis Principle from the Local Taxes and Retributions Act 2009 towards Local Government Finance

The Contract of Work between the Government of Indonesia and mining companies has the nailed down tax obligations, which means that the mining companies only pay taxes that are stipulated at the time when the Contract of Work was signed. A legal issue arose when the Local Taxes and Retributions was enacted in 2009 which did not exclude Contract of Work mining companies from imposing local taxes. In several provinces, the tax dispute arose when the Local Government imposed local taxes on the mining companies under the Contract of Work based on the Local Taxes and Retributions Act. The pattern of dispute settlement process from those issues was carried out until the case review process by the Supreme Court. The decision on the case review stated that the Contract of Work was valid as a lex specialis of the Local Taxes and Retributions Act with consideration: there was a recommendation from the House of Representatives in the formation of a Contract of Work and the Letter of the Minister of Finance No. 1032/MK.04/1988. The method that will be used in this study is the normative juridical method, referring to written legal materials in the form of primary, secondary, and tertiary legal materials which are specifically related to local taxes and absolute tax theory. The result of this research concluded that the Supreme Court decision was not conformable with tax law principles and absolute tax theory. Furthermore, considering the erga omnes principle of the Administrative Court System that the Tax Court is beneath the scope, the decision implies the other local government that cannot collect local taxes from mining companies under Contract of Work.

The Development of the Administrative Court Systems in Transition Countries and Their Role in Democratic, Economic and Societal Transition

The paper analyses the origins of judicial control of administration and the development of the administrative court system in European transition countries which have undergone three phases – the formation of democratic institutions and establishment of administrative courts, the reform phase under the influence of the Europeanisation process on administrative courts’development, and the evaluation phase. After the formation of the administrative court system, transition countries that formed specialised administrative courts in the second half of the 20th century were under the process of Europeanisation, while in countries which formed their specialised administrative courts later, this development is observed with some delay. The analysis aims to discover the connection between the development of administrative court systems and their role in democratic, economic and societal transition.

OʻZBEKISTONDA MA’MURIY ODIL SUDLOV MUAMMOLARI VA MA’MURIY SUDLAR FAOLIYATI SAMARADORLIGINI OSHIRISH IMKONIYATLARI

This article analyzes some aspects of the right of individuals and legal entities to appeal to the administrative court against illegal decisions, actions (inaction) of state bodies and their officials. The article describes the history of administrative justice in Uzbekistan, changes in the legislation aimed at reforming the system of administrative courts. Although the reforms have resulted in some improvements in the functioning of the administrative courts, the issue of jurisdiction in the administrative litigation analyzed in this article is still one of the most controversial. There was adopted Decree of the President of the Republic of Uzbekistan dated January 29, 2022 “On measures to ensure effective protection of the rights of citizens and business entities in relations with government agencies and further increase public confidence in the courts” PQ–107. The article also provides an analysis of several legal issues related to the implementation of this Decree. Accordingly, the article analyzes the most common legal issues of litigation. In particular, the article reveals the main criteria for distinguishing civil courts from administrative courts, economic courts from administrative courts, military courts from administrative courts. Scientifically based solutions have been proposed for some of the problematic issues encountered in judicial practice.

Administrative Jurisdiction in Ukraine: Discourse Analysis

The development of administrative jurisdiction is extremely important for the establishment of a democratic society and the protection of human rights. The purpose of this paper was to study the system of administrative courts in Ukraine and other countries and delineate the powers of courts of different jurisdictions, as well as to study the history of the system of administrative courts in different countries and compare the experience of administrative jurisdictions in different countries. The methodological framework comprised discourse analysis as a method of qualitative research of the issues under consideration. This method involves the study of textual sources, mainly when it comes to understanding law and social laws, as well as their history. In the course of the study, the systems of construction of administrative proceedings of the leading European countries are considered, based on which the general systems of organisation of administrative jurisdiction are outlined: 1) French; 2) German; 3) the common law system; 4) different types of mixed systems. As a result of the research it was established that in general the development of administrative jurisdiction in Ukraine from the 19th century to the present has passed 5 stages and each of them was described. It is stated that the current system of administrative jurisdiction in Ukraine is quite progressive and balanced: administrative courts are a separate three-tier system, and a special procedure has been introduced for administrative cases.

Kodėl administraciniam procesui (ne)reikalinga kasacija?

The article analyses the system of administrative courts, its advantages, disadvantages and possible improvements.

Essay on the Doctrine of Administrative Procedure

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