Theory Of Administrative Law Research Articles

Defining the functions of administrative law norms in the modern theory of administrative law

Defining the functions of administrative law norms in the modern theory of administrative law

Delegated and implementing acts in the proposal of “hydrogen and decarbonized gas market package” – meaning and functioning

The European Commission presented two proposals on 15 December 2021 with the objective of reforming the internal gas market by introducing hydrogen and decarbonized gases. The main objective of the paper is to present the legal characteristics of the delegated and implementing acts provided in the provisions of these proposals from the point of view of the theory of administrative law. On this basis, we shall attempt to assess their importance in shaping the regulations for biomethane and hydrogen. This objective will be achieved by outlining the assumptions of these proposals, briefly presenting the delegated and implementing acts provided for in them and analysing the nature of these acts, including the differences between them and the effects of their adoption.

Police custody: preventive or coercive police measure

Police custody: preventive or coercive police measure

Current issues of administrative responsibility for bullying (harassment) of a participant of the educational process

The article is devoted to the topical issue of administrative responsibility for bullying (harassment) of a participant of the educational process as an important protective legal measure, a measure of administrative coercion designed to ensure effective countermeasures against such a phenomenon as bullying (harassment). The article examines various definitions of the concept of administrative responsibility given by scientists and proposes its own definition. We consider the grounds of administrative responsibility to be normative, factual and procedural, for the conducted research the factual basis is particularly important, that is, the commission of an administrative offense, the composition of which is fixed in Article 173-4 of the Code of Ukraine on Administrative Offenses (hereinafter - CAOU) - bullying (harassment) of a participant of the educational process. Having analyzed the composition of this offense, it becomes obvious how imperfect and contradictory this norm is, which is revealed in the study and relevant suggestions and recommendations are provided.
 Emphasis is placed on the importance of the correct qualification of an illegal act that contains signs of bullying, as it has a wide variety of manifestations and can be qualified as a corresponding criminal offense that entails criminal, not administrative, liability.
 Having studied the composition of the administrative offense of bullying (harassment) of a participant of the educational process, it was established that the first part, as well as the third and fourth parts of Art. 173-4 of CAOU provide that this administrative offense can be committed by minors or minors between the ages of fourteen and sixteen, thus classifying these persons as subjects of an administrative offense, which contradicts both the general theory of law, the theory of administrative law, and norms of CAOU itself; at the same time, in this case, the legislator assigns administrative responsibility for bullying to parents or persons who replace them, which contradicts many important principles of administrative responsibility. Article 12 of CAOU establishes that persons who have reached the age of sixteen at the time of committing an administrative offense are subject to administrative liability. Based on this regulatory provision, it is generally recognized in administrative law that the subject of an administrative offense is a compos mentis individual who has reached sixteen years of age at the time of committing an administrative offense. If an illegal act, which objectively has the characteristics of an offense provided by administrative legislation, was committed by a person who has not reached the age of 16, then such an act cannot be recognized as an administrative offense, since there is no subject of the offense, and therefore the composition of the offense, such actions in the theory of law are recognized as objectively illegal actions. Therefore, we point out the impossibility of considering as an administrative offense an act that has signs of bullying and which is committed by minors and minors between the ages of fourteen and sixteen, as stipulated in Article 173-4, because there is no composition of an administrative offense due to the absence of the subject of the offense, and therefore, there is no factual basis for administrative responsibility for such actions, and therefore it cannot be applied in this case. As a result of the research, it is proposed to amend Articles 173-4 and 184 of the Code of Ukraine on Administrative Offenses in order to bring them into line with other Code norms, provisions of the general theory of law and the science of administrative law, and the principles of administrative responsibility.

Execution of State Administrative Judicial Decisions a Mirror of the Authority Court

Objective: This study aims to examine the significance and effectiveness of the execution of state administrative judicial decisions as a reflection of the authority of the court. It delves into understanding how the execution process mirrors the court's capacity to ensure compliance with its decisions within the state administrative framework. Theoretical Framework: Drawing upon legal theories of administrative law and judicial authority, this research situates itself within the context of the separation of powers doctrine and the judicial function in administrative matters. It also explores concepts of legal compliance, the role of courts in decision enforcement, and the impact of administrative judicial decisions on governance. Methodology: The study adopts a qualitative approach, utilizing case studies and legal analysis to investigate the execution process of state administrative judicial decisions. It involves in-depth examination of court rulings, judicial proceedings, and administrative actions taken post-decision. Interviews with legal experts and stakeholders involved in execution processes supplement the analysis. Results and Conclusion: The findings showcase the pivotal role of the execution process in reflecting the authority and efficacy of the court within the state administrative system. The study unveils the challenges and successes in implementing administrative judicial decisions, highlighting areas of compliance and resistance. It concludes by discussing the implications of these results for the authority of the court in the administrative context. Originality/Value: This research contributes to the understanding of the correlation between the execution of state administrative judicial decisions and the authority of the court. It fills a gap in scholarly literature by offering insights into the practical manifestations of judicial authority in administrative matters, shedding light on the complexities, challenges, and opportunities inherent in ensuring compliance with administrative court rulings.

Navigating the Traffic Light Theories of Administrative Law: An Examination of Judicial Deference and Administrative Discretion

Navigating the Traffic Light Theories of Administrative Law: An Examination of Judicial Deference and Administrative Discretion

우리나라 행정계획 및 관련 법제의 쟁점과 몇 가지 개선방안

Administration in modern countries is largely comprised of planned administration, and administrative planning is a key means of so-called ‘infrastructural administration’ and the cornerstone of state activities in a country ruled by law. In general, administrative planning has a wide range of autonomy in selecting the means to achieve its goals, and legislatively, administrative planning laws and regulations require the relevant administrative agencies to select the means due to the need for technical expertise, responsiveness, and flexibility. There is no choice but to grant broad discretion. For that reason, the Administrative Planning Act is inevitably governed by a purpose-and-means structure, so prior regulation through legislation is bound to be insufficient, and there are certain limitations in judicial control ex post by the courts, etc. Nevertheless, as we enter the era of the 4th Industrial Revolution, the administrative planning legislation must be based on the momentum of ‘sustainable development and harmony with the social and natural environment.’ In order for the administrative planning legislation to respond to the era of the 4th Industrial Revolution, the use of spatial information, national land monitoring system, smart Although communities, etc. are being introduced, if we follow the national strategy of a leading economy or inclusive society that our country should pursue in the future, the Administrative Planning Act will enable more detailed, efficient, and sustainable management than large-scale development projects such as the conventional catch-up economy. There is a need to establish and implement. Meanwhile, appropriate control measures for these administrative planning laws and administrative plans must be prepared, and in order to achieve appropriate judicial control over administrative plans, it is necessary to construct planning-specific control laws. In this regard, the formation of legal principles such as the expansion of the disposition of plans, planning discretion theory, sentencing order theory and sentencing defect theory, preventive prohibition lawsuits, planning guarantees, and guarantees of abolition claims can be evaluated as a great development in administrative law theory. It is significant that participatory democratic prior control should be implemented from the plan confirmation stage before legal control is confirmed.

Definition of the Concept of Administrative Disputes

Administrative dispute is a fundamental concept that requires clarification in the realm of administrative law theory. However, there is a lack of well-defined definitions of administrative dispute in this field, and varying perspectives exist. This paper aims to address this gap by establishing a definition of administrative disputes based on four key elements: the subject, object, motivation for formation, and external manifestation of such disputes. By doing so, this paper seeks to make a modest contribution to the prevention and resolution of administrative disputes.

General Conditions (Prerequisites) for Ensuring Legality in Public Administration

The theory of administrative law contains general conditions (prerequisites) and special legal methods (control, supervision, appeal) and means (legal responsibility) to ensure legality. And if much attention is paid to the latter in the scientific literature, then the study of the general conditions (prerequisites) for ensuring legality in relation to modern realities has not yet been widely disseminated. At the same time, as practice shows, in modern conditions, it is not always possible to ensure legality in the activities of the apparatus of public authorities by special legal methods and means. The paper argues that it is the general conditions (prerequisites), being external factors, that have a significant positive or negative impact on the state of legality both in the country as a whole and in certain areas of public administration. Therefore, their understanding is especially important not only for the theory of administrative law, but also for the public power carrying out practical work. In relation to the current situation, the paper analyses such general conditions (prerequisites) for ensuring legality in public administration as ideological, political, legal, socio-economic, organizational conditions. The author substantiates the conclusion concerning complex influence of these conditions (prerequisites) both on the general level of legality, and on the use of special legal methods and means of ensuring legality in public administration.

Administrative justice as a way of ensuring public order

In the article, from the point of view of the modern theory of administrative law, administrative proceedings considered as a way of ensuring public order. The methodological basis of the article consists of a systematic approach and a system-functional analysis. The category «public order» considered. Attention drawn to the lack of a single theoretical approach to defining the concept of «public order» in administrative law. The problematic aspects of the category «public order» are considered, the legislation and judicial practice are examined, which allow us to conclude that there is no unified understanding and theoretical approach to the definition of the concept of “public order” in administrative law. It proposed to understand public order as an administrative-legal institution that ensures the supremacy of the law in the sphere of management. Public order is a complex construction of law, the content of which is important, as it allows identifying the sphere of administrative activity of the state in public management, to separate administrative activity from judicial activity in the context of administrative justice. It indicated that general local and administrative courts and the system of commercial courts carry out administrative proceedings within the current judicial system. According to the current legislation, disputes related to the administrative responsibility of legal entities and individual entrepreneurs handled in the commercial court. Administrative proceedings in commercial courts is a field of judicial activity introduced as a means of judicial control in the field of public legal relations, but the specified activity must be conducted within the scope of administrative proceedings. Proceedings in cases of administrative offenses are assigned by the legislator to the competence of executive (public) authorities, occupy a separate place in the sphere of public administration, are not a function of the judiciary from the point of view of the current legislation of Ukraine and scientific views on administrative and jurisdictional activity that take place in scientific circles countries of the European Union.

Publicidad, transparencia y apertura en la Administración Pública

This work addresses the republican principle of publicity and its constitutional corollaries within administrative activity, in light of the recent Access to Information Law and constitutional guidelines. For the smooth functioning of an open society, all state space is subject to the light of transparency. The concept that transparency in Public Administration is essential for it to function more responsibly and effectively is gaining increasing importance in the theory of administrative law.

Original scientific article Administrative Discretion: Questions and Answers (Part 2)

This article continues the series of scientific publications planned by the editors of the Siberian Legal Review, the Authors of which analyze the problem of administrative discretion (discretion), which is very relevant for the Russian administrative law theory and practice, in the “question-answer” format. In the domestic legal literature, one can find various definitions of administrative discretion; they are also contained in the legislation of a number of post-Soviet states. Pointing out the shortcomings of some definitions of the named concept, Yuri P. Solovey proposes to define administrative discretion by the choice made by public administration of a variant of solving a managerial issue in the form of an administrative act (regulatory or individual), corresponding, in its opinion, to the requirements established by law for administrative acts, in conditions of insufficient legal certainty of goals, grounds, conditions, content, situation, place, objects (addressees), subjects, procedure for registration, procedure and (or) terms (time) for the adoption of an administrative act. In response to the question about the appropriateness of such an approach to understanding the concept under consideration and the call to formulate his own definition of administrative discretion, Petr P. Serkov agrees with the critical assessments of the mentioned definitions of the concept of discretion. At the same time, in his opinion, the study of the phenomenon of administrative discretion does not involve the interpretation of this phrase, as a result of which the other definitions of discretion are born, but, first of all, the clarification of its content. The latter is impossible without referring to the logical construction of the mechanism of administrative legal relations, since discretionary decisions are filled to the maximum extent with the immutable logic of the emergence and development of this mechanism, available for reproduction and control. Meanwhile, the analytical potential of this construction, unfortunately, remains unclaimed in the theory of modern administrative law. Petr P. Serkov concludes that administrative discretion functions in the naturalness of legal reality, formed by legal regulation, including due to the ideological content of the norms of administrative law, and their state mental coercion as an unalternatively necessary component of legal regulation.

Strategic Management Acts in the Field of National Security

The article summarizes the views of legal scholars on the legal nature of strategic planning documents and supports the position on recognizing them as a type of political and legal acts. From the standpoint of the theory of administrative law, the presence in the documents of strategic planning in the field of national security of the main features of legal acts of governance is shown: by-law; state-governmental nature; legal nature; adoption by a competent subject of public authority; rule-making procedure for adoption. The definition of a strategic management act in the field of national security is formulated, which is proposed to be understood as an official document issued in accordance with the established procedure by the President of the Russian Federation or the Government of the Russian Federation and containing legal norms defining the goals, objectives, content and ways of implementing state policy to ensure and protect national interests and achieve strategic national priorities of the Russian Federation in the long term. It is precisely such acts that largely determine the architecture and content of the entire system of legal acts of management.

Hideo Fukui, <i>Securement of Constitutional Values by Administrative Lawsuits:Theory of Administrative Law based on the Principle of Law-governed State and Law and Economics</i>, Nippon Hyoron sha co., Ltd, March 2022

Hideo Fukui, <i>Securement of Constitutional Values by Administrative Lawsuits:Theory of Administrative Law based on the Principle of Law-governed State and Law and Economics</i>, Nippon Hyoron sha co., Ltd, March 2022

Measures of administrative prevention of driving a vehicle in a condition that threatens road safety

In the article, based on the current theory of administrative law, the theoretical and practical aspects of the legal regulation of administrative prevention measures for driving a vehicle in a condition that threatens road safety considered, based on the current legislation and regulatory requirements of the European Union. The topicality of the topic is due to the need to improve the legislation regarding the comprehensive theoretical justification of the implementation of administrative and preventive measures regarding driving a vehicle in a condition that threatens road safety. The purpose of the article is to study the system of preventive measures in the field of road safety. In the course of the study, the methodology of a complex systematic analysis of legal phenomena applied using general legal and special methods of researching legal relations in the field of road safety. The presence of the right to drive vehicles gives a person a special administrative-legal status, which establishes a set of special rights and obligations defined by legislation. It indicated that preventive activity consists in the application of a complex of social, administrative-legal, organizational, and informational measures. The application of technical means intended for the prevention of traffic accidents when driving vehicles by a driver in a state of fatigue or illness considered. Emphasis placed on the expediency of road infrastructure development for drivers' recreation. It noted that in today's conditions, the introduction of immobilizers is relevant as a means of combating drunken driving. The application of tele medical technologies during the pre-flight medical examination is considered. Identification by medical workers of driver conditions that pose a threat to road safety can be an effective preventive measure. Further research should develop the principles of implementing new measures to prevent traffic accidents.

Subjective signs of administrative offenses in the sphere of information circulation

The article, based on a comprehensive systematic analysis of current legislation and theoretical and legal studies of practicing lawyers and scientists, examines subjective signs of administrative offenses in the field of information circulation, and provides a scientific assessment of the legislation regulating the organization and functioning of subjects of administrative responsibility in the field under investigation. Administrative responsibility is the most comprehensive and meaningful part of the means of information protection. The specificity of offenses in the field of information circulation determines the characteristic features of subjective signs. In terms of structure and content, its components are functional, substantive, procedural and punitive elements. The named elements provide an opportunity to investigate various features of subjects of administrative responsibility - from the standpoint of the object, territory, scope of authority, relation of information to a certain category. The legal status of subjects of administrative responsibility in the field of information circulation, the characteristics of its elements are considered. It is noted that the subject of administrative responsibility is the central link of the legislation on administrative responsibility. The features of an official as a subject of administrative responsibility in the field of information circulation are disclosed. From the point of view of the modern theory of administrative law, the possibility of establishing the responsibility of legal entities in the field of information circulation, the peculiarities of the implementation of administrative responsibility in relation to certain categories of subjects, the impact of sanctions for violations of legislation in the field of information circulation on the effectiveness of countering violations of legislation in the field of study are considered. Characterization of subjective signs of administrative responsibility in the field of information circulation, analysis of elements forming a system of signs determines the perspective of the development of administrative responsibility in the field of information circulation and its definition.

Contribution of Professor D.N. Bakhrakh in the Development of the National Science of Administrative Law

The article is devoted to the analysis of the scientific heritage of the outstanding domestic scientist-lawyer, Doctor of Law, Professor, Honored Scientist of the Russian Federation Demyan Nikolaevich Bakhrakh, who would have turned 90 in 2022. The main milestones of the life path of D.N. Bakhrah are briefly described, an overview of his main works on the theory of administrative law is presented. The evolution of the scientist›s views on the content and structure of the subject of Russian administrative law has been detailed. His contribution to the doctrine of individual and collective subjects of administrative law has been analyzed. It was concluded that the structure of the content of the administrative and legal status of collective subjects of administrative law proposed by D.N. Bakhrakh has found active support in the scientific world and now has actually become a doctrine.

Regional and local branch agencies of the central government

Contemporary public administration is divided according to the adopted criteria. The most clear and legible division indicates the functioning in its structures of the government administration, which undertakes the activities of the state assigned to it. The bodies of this administration function on different levels of organization and have different powers and competences. The study presents the organization of local government administration divided into two basic forms: combined and non-combined. The deliberations were based on the theory of administrative law and practical organizational solutions. An attempt was also made to assess the form of governmental administration organization functioning in the field. Research attention has also focused on its functioning during a pandemic.

Methods of administrative and legal enforcement of fair behavior of military officials in the Armed Forces of Ukraine

The purpose of the article was to define the concept and types of methods of administrative and legal support for the respectable behavior of military officials in the Armed Forces of Ukraine.
 The article determines that the problem of methodology is basic for any field of scientific activity. Attention is focused on the fact that methods, doctrines and paradigms find their embodiment and practical confirmation of the hypotheses of researchers put forward to solve topical theoretical and practical issues. The methods of administrative and legal support are an important part of the updated theory of administrative law, the provisions of which can be applied to the analysis of new social relations, in particular, in the field of virtue of military officials.
 Arguments are given that the methods of administrative and legal support for the respectable behavior of military officials in the Armed Forces of Ukraine are the most established legal methods and methods for achieving the performance by a military person of those actions that he is obliged to implement during his service, and refraining from prohibited and undesirable actions (inaction ).
 The classification is proposed for the methods of administrative and legal support of the respectable behavior of military officials in the Armed Forces of Ukraine, which includes the following groups of methods: a) “hard” law methods, which include methods of subordination and coordination; b) methods of “soft” law, in particular, methods of legal harmonization, unification, modeling of the desired behavior of military personnel.
 It is concluded that the methods of administrative and legal support for the good behavior of military officials in the Armed Forces of Ukraine are characterized by the following features: a) they are not always legal; b) they combine legal and moral and ethical elements; c) the use of the studied methods is of a longitudinal nature and is intended for long-term use, which is due to the duration of the processes of formation of personality attitudes in her professional activities.

Strategic Planning as a Factor of Public Administration in Ukraine

The article considers strategic planning issues as a factor of public administration in Ukraine. Consideration of strategic planning in the system of public administration is carried out based on factor analysis of the study of legal phenomena in the context of modern methodological principles of the theory of administrative law and the theory of public administration. The study's relevance is due to the need to increase the effectiveness of public administration of socio-economic development and national security in terms of integration into the European Union and the North Atlantic Treaty Organization. It is noted that Ukraine has accumulated experience in public administration, methods and tools, which continue to dominate, despite the development of a new system of the socio-economic structure. The need for sustainable socio-economic development and national security as a strategic goal facing the state necessitates the creation of appropriate legal arrangements that mediate the strategic nature of planning. Integration into the European Union creates the preconditions for forming a new paradigm of public administration, which is designed to include mechanisms and tools of the new general management, able to strategically ensure socio-economic growth and the appropriate level of national security.