Letteratura scientifica selezionata sul tema "Separation of administrative and judicial authorities"
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Articoli di riviste sul tema "Separation of administrative and judicial authorities":
1
Bovend’Eert, Paul P. T. "Judicial Independence and Separation of Powers: A Case Study in Modern Court Management". European Public Law 22, Issue 2 (1 aprile 2016): 333–53. http://dx.doi.org/10.54648/euro2016021.
Abstract (sommario):
The construction of a court management organization in the judiciary touches the heart of judicial independence and separation of powers. It is vitally important to have sufficient safeguards against outside pressures from executive branch authorities, to maintain the independence of the judiciary and respect separation of powers. In the Netherlands, a modern court management organization has been established to improve judicial efficiency and enhance the quality of the administration of justice. Executive branch authorities, such as the Minister of Security and Justice, obtained broad supervisory powers concerning the operational management of the courts of the judiciary. In supervising the operations of the courts, these non-judicial authorities turn out in practice to be intensively involved in the way in which the judges handle cases. This organizational structure does not satisfy standards of judicial independence and separation of powers. Fundamental changes in this management structure have to be considered.
2
Olszanowski, Jan. "Model of Supervision over Administrative Courts in Poland". Bratislava Law Review 4, n. 2 (31 dicembre 2020): 173–88. http://dx.doi.org/10.46282/blr.2020.4.2.195.
Abstract (sommario):
One of the most significant current discussions in Polish legal doctrine is how actions of executive powers, especially supervisory measures can affect judicial independence. It is related to basic constitutional and administrative law issues, including the separation of powers, the independence and the impartiality of the judiciary, the independence of the courts, the supervision and control, the efficiency and effectiveness of judicial protection. The analysis focuses on the dependence between the model of administrative supervision adopted in administrative justice and the efficiency of the courts, as well as their perception by the public. The study will examine supervisory measures aimed at ensuring the efficient functioning of the courts. The effectiveness of judicial review of administrative justice is essential for the protection of individuals' rights and the functioning of the state authorities in both the social and the economic sphere. From an extrajudicial point of view its significance is reflected in the influence on the judiciary, which will not only be effective in its procedural activity, but also in the level of trust and social prestige. It holds that the three arms of the state – the executive, the judiciary and the legislature – should, to a greater or lesser extent, be kept separate. That way, they are able to hold one another to account. This theory about the separation of state power went on to have a formative effect on the development of modern-day democracies. And it’s this vision of the tripartite separation of state power that is essential to the EU’s argument against the Polish reforms of the judiciary. The problem of supervision over administrative courts is also connected with external and internal independence of the judiciary. External independence refers to freedom from undue outside pressure, while internal independence protects individual judges from undue pressure from within the system. “Undue internal pressure” sometimes comes from court presidents and may take different forms: even where individual judges are not formally subordinate to court presidents or other authorities and may be result of attribution of workload, allocation of resources and benefits, disciplinary powers, powers of transfer and secondment, distribution of cases, etc. The aim of this paper is to examine the problem of supervision over administrative courts in legal system of Poland. The article focuses on the dependence between the model of administrative supervision and the efficiency of the courts.
3
Evloev, I. M. "The Legal Nature of the Judicial Compliance Assessment". Siberian Law Herald 1 (2021): 8–13. http://dx.doi.org/10.26516/2071-8136.2021.1.8.
Abstract (sommario):
The article examines the legal nature of the judicial compliance assessment, its correlation with the concepts of «judiciary»,«justice», «compliance assessment», «judicial control», «legal proceedings». In the legal literature the essence of this category is defined differently: it is considered as a function, objective, means, activities, process. Describing the concept of “function” as the main direction of the activity of different authorities, judicial compliance assessment is considered to be one of the functions (essential manifestations) of the judiciary. The leading role in the implementation of separation of powers and effective participation of courts in the system of checks and balances allows us to consider this institution as a function fulfilling the purpose of the judicial power. The judicial compliance assessment is a part of justice, which is the main function of the judiciary, and it’s implemented through constitutional, civil, arbitration, administrative and criminal proceedings. Thus, the legal proceedings are a form of realization of the compliance assessment functions of the judiciary. At the same time, the judicial compliance assessment is a kind of compliance assessment in general as the activity of the entire system of the competent authorities to assess regulations. Based on the results of the analysis of various positions of lawyers regarding the legal nature and content of judicial compliance assessment author offers his vision of the place of this institution in the system of functions of the judiciary and its main characteristics.
4
Golovko, V. V., e Yu A. Seliverstova. "Seliverstova Yu.A. Administration process and administrative proceedings: problems and future". Law Enforcement Review 8, n. 2 (22 giugno 2024): 112–19. http://dx.doi.org/10.52468/2542-1514.2024.8(2).112-119.
Abstract (sommario):
The subject is administrative proceedings in the system of judicial proceedings used in Russia.The purpose of the article is definition of the essence of both legal proceedings in general and administrative proceedings in particular, as well as its varieties.Methodology includes methods of complex analysis and synthesis of the Russian legislation and scientific sources, as well as formal-logical logical interpretation of legal rules and scientific papers.Main results. It seems reasonable to be guided by the position of the legislator, according to which each constitutionally defined type of legal proceedings corresponds to a specific procedural form, each of which is fixed exclusively in the corresponding independent federal law. The separation of civil and commercial proceedings is of a functional nature, taking into account the totality of the specifics and the subject composition of the civil cases under consideration. Currently, in the Russian Federation, administrative proceedings are carried out in at least two independent procedural forms. Administrative court proceedings are judicial administrative proceedings, the human rights essence of which is the procedural activity of the court for the actual consideration and resolution of administrative cases and cases of administrative violations. The concept of administrative proceedings is part of a broader concept of administration process, which, in addition to considering a case accepted for trial on the merits, includes the procedural activity of the court at the stage before the acceptance of administrative claims submitted to the court under the Code of Administrative Procedure of the Russian Federation. The administration process is exclusively judicial in nature and does not preclude the activities of quasijudicial bodies to consider disputes with citizens and organizations on issues of disagreement of the latter with the actions (inaction) of executive authorities and their officials and their decisions.Conclusions. The components of the concept of administrative proceedings are proceedings in administrative and other cases arising from public relations (public law disputes) and judicial proceedings in cases of administrative offenses. Public law disputes and proceedings in cases of administrative offenses include a public authority as one mandatory party, nevertheless, public law disputes are of a claim nature, whereas proceedings on an administrative offense have a tort content.
5
Wang, Haijun. "Practical requirements and institutional changes in the action of the judiciary during the transition period in Russia". Legal Science in China and Russia, n. 4 (16 settembre 2021): 118–25. http://dx.doi.org/10.17803/2587-9723.2021.4.118-125.
Abstract (sommario):
. After the collapse of the USSR, Russia entered a new social transition period, and reform in the fi eld of state structures, including the legal system, began. The judicial power plays an important role in the process of legal reform, and is manifested at several levels of the state, society and the individual. Based on the gradual completion of the theoretical and institutional construction of the mechanism of action of the judicial power of the Russian Federation at the beginning of the transition period, the judicial power is gradually being put into practice, but as society develops, the mechanism of action of the judicial power dynamically develops in accordance with practical requirements, including changes in the system of judicial authorities, changes in the mechanism of judicial proceedings, improvement of the mechanism of control and ensuring the mechanism of judicial power, as well as separation of the power of execution of a sentence from the judicial power.In particular, in the system of judicial authorities, due to excessive pressure on the consideration of cases, the institution of justices of the peace, established during the judicial reform of 1864, was restored in order to ease the burden of the federal court and at the same time achieve a quick resolution of disputes between residents; The complete consolidation of the constitutional judicial system led to the gradual establishment of constitutional (statutory) courts of the subjects of the Russian Federation, which would allow improving the foundations of the constitutional judicial system and the constitutional judiciary in Russia; To address the review of judicial practice in cases related to the resolution of disputes on the protection of intellectual rights, the Intellectual Property Rights Court was established, which expanded the requirements of the judiciary in specialized areas; In order to eliminate various differences between the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in the interpretation of many laws, the functions of the Supreme Arbitration Court of the Russian Federation were included in the Supreme Court of the Russian Federation.As for the reform of the mechanisms of judicial proceedings, the institution of juries was restored during the judicial reform of 1864 in order to get rid of the institutional abuses associated with the institution of people’s assessors in the USSR; During the period of general social transition and judicial reform in Russia, the change in legal concepts and the requirement of judicial practice led to Russia reviewing and evaluating the institution of judicial precentors and; The principle underlying human rights in the Constitution has brought the role of the judiciary in the fi eld of ensuring and protecting civil rights to a signifi cant one, and the mechanism of administrative action has gradually changed with the adoption and application of the Code of Administrative Procedure of the Russian Federation. In the fi eld of improving the mechanism of control and ensuring the mechanism of judicial power, the judicial power, after judicial reform and institutional construction, achieved a situation of developing independence, a control mechanism was created by a subject consisting of the constitutional court of the Russian Federation, the parliament, the prosecutor’s offi ce, an autonomous body of judges, at the same time, the judicial department under the Supreme Court of the Russian Federation provided for the actions of the judiciary in the transitional period of the Russian Federation.The execution of decisions is the fi nal point of the judicial power, so the issue of the execution of decisions becomes an integral part of the exercise of judicial power in judicial reform, as well as concentrated in civil areas, while a specifi c way of reform is the separation of the power of execution of a sentence from the judicial power. The above will be a manifestation of the institutional transformations of the mechanisms of action of the judiciary to adapt to social development in the transition period. In a special and long process of transition, the judicial power of Russia could achieve useful action, as well as the renewal and transformation of institutions that are formed in practical processes, contributed to the continuous development of the judicial power, while the mechanism of action of the judicial power is continuously being improved.
6
Fox-Decent, Evan. "Democratizing Common Law Constitutionalism". McGill Law Journal 55, n. 3 (10 febbraio 2011): 511–35. http://dx.doi.org/10.7202/1000622ar.
Abstract (sommario):
Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Justice Rand’s judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By “democratic” the author means a version of the theory that governs judicial review but which is available to frontline decision makers independently of the history and contemporary practice of review. By “relational” the author means a theory that presupposes a trust-like and legally significant relationship between public authorities and the persons subject to their power. Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.
7
Issalys, Pierre. "Regards sur le droit administratif suisse". Les Cahiers de droit 19, n. 3 (12 aprile 2005): 703–79. http://dx.doi.org/10.7202/042262ar.
Abstract (sommario):
Looking at Swiss administrative law from a Quebec perspective, this paper outlines some aspects of the Swiss system that provide useful models or references for the discussion and resolution of current issues in Canadian and Quebec administrative law. These issues are identified as (1) the proliferation of independent administrative agencies, and the means to control or at least systematize the growth of such structures ; (2) the desirability and feasibility of enacting general standards of procedure for administrative action ; (3) the simplification of remedies in the field of judicial review of administrative action ; (4) the desirability and feasibility of allocating judicial review powers to a specialized court, either within or outside the Superior Court ; and (5) the desirability and form of a procedure allowing for political intervention in the decision-making process of independent agencies. In the light of these issues, the paper describes the allocation of review functions between administrative and judicial bodies in Swiss federal law. The structure and activity of the Swiss Federal Court (Tribunal fédéral), and especially of the division of the Court that deals with most administrative law cases, are outlined in some more detail. A short historical sketch leads to a discussion of the corresponding features of the law in some of the cantons, and to consideration of the special position given to social security matters in the general scheme of administrative law. The paper then focusses on administrative action itself, commenting on the most significant provisions in the Federal Administrative Procedure Act (Loi fédérale sur la procédure administrative) of 1968. Special attention is paid to the process of review within the administration, up to the level of the federal cabinet (Conseil fédéral). Corresponding provisions in the law of some of the cantons are also briefly discussed. The description of the federal review process is then completed by an outline of the procedure for judicial review of administrative action by the Federal Court (Recours de droit administrative). Finally, notice is again taken of the special position of social security as regards administrative procedure. The paper draws attention, in its concluding part, to the most interesting insights provided by Swiss law into the current problems of Canadian and Quebec administrative law. The growth of administrative tribunals has been brought under control by structural arrangements, especially in the field of social security. The introduction of general standards of procedure has brought greater uniformity and clarity, has emphasized the unity of administrative process including the review phase before administrative or judicial authorities, and has strenghtened the rule of law over government action. The existence of a single procedure to invoke judicial review eases access to the court. While in many cases review by the court is excluded, these exclusions have to be specific, and leave full opportunity for review within the administration, with adequate safeguards provided by the Administrative Procedure Act. Specialization occurs within the Federal Court, and does not involve a rigid separation between judges applying administrative law and judges applying other branches of the law, as in France or Germany. Finally, ultimate political control over certain types of decisions is admitted as a part of life in Swiss federal law, but is at the same time subjected to a quasi-judicial procedure which makes it an acknowledged source of administrative justice.
8
Lee, Chang-On. "A Critical Review on the Separation Theory of Investigation and Prosecution: Focusing on comparative legal perspective". Korean Association of Criminal Procedure Law 14, n. 2 (30 giugno 2022): 35–97. http://dx.doi.org/10.34222/kdps.2022.14.2.35.
Abstract (sommario):
Investigation should not have any meaning on its own, apart from the prosecuting authority’s decision. This is because these judgments can not be properly made unless the legal and normative viewpoints of the prosecuting authority are applied. There is no purpose of investigation itself, and there should not be because there is no reasonable grounds in terms of protecting constitutional rights and human rights that the independence of the investigative authority should be guaranteed. Therefore, if the purpose of the investigation is to evaluate the possibility of proving guilt and to decide whether to initiate a prosecution, and the validity of the decision is ultimately evaluated by the court's decision or judgment through the trial process. the authority and responsibility of the investigation should belong to the prosecuting authority according to the principle of purposiveness and the principle of professionalism. If the organizational structure and authority are set so that the incentives and decision-making of the members in the organization are contradictory to each other in the areas with the same purpose and function, serious disharmony and burden will occur within the system. Whether the legal nature of the investigation of a specific case is judicial or administrative depends on the philosophical and institutional perspectives with which how important and realistically achievable the culture of the relevant legal system regards the fairness of the investigation procedure. The ideal investigative agency for which our Constitution and the Criminal Procedure Act aims should only discover the actual truth and implement judicial justice, while maintaining objectivity and neutrality in criminal procedures. Investigation should not be used to achieve administrative purposes, but are aimed only at finding the truth and the judicial justice. To achieve this, the investigation should not be part of the administration, but should be part of a judicial or quasi-judicial power independent of the administration in our criminal legal system. If real-world prosecutors fail to realize quasi-judicial independence in spite of these legal ideals and institutions for achieving them, a device that can guarantee independence and objectivity of them should be developed in order to properly implement this ideals. The investigative authority should not be monopolized by administrative agencies that are bound by the principles of administrative authority and purposiveness. Most of the existing problems raised with respect to the prosecutor's concentration of power should have been addressed with the standpoint of strengthening the independence and neutrality of the prosecution service and refraining from unnecessary direct investigations, thereby solidifying their identity as a quasi-judicial institution. In addition, it should have been approached by strengthening the objective measures of checks and independent inspection procedure in the decision-making process of the prosecution service regarding investigations and prosecutions. Separating investigation and prosecution and weakening the prosecuting authority's command and control against the investigation agencies should not have been considered in the first place. The system as a whole has made it easier for front-line investigative agencies to abuse their investigative powers with this new approaches. This accumulates burdens on the criminal system that can not be sustainable in the mid- to long-term and could disrupt our criminal justice system which maintains the fundamental characteristics of the continental inquisitorial system so that the prosecution guarantees the completeness of the investigation in an objective and neutral position,
9
Bródka, Jakub. "Analiza uprawnień i wzajemnej relacji organów nadzorczych nad komornikiem sądowym oraz charakter jego odpowiedzialności dyscyplinarnej – zarys problemu". Przegląd Prawa Egzekucyjnego 2023, n. 7 (28 luglio 2023): 35–67. http://dx.doi.org/10.62627/ppe.2023.026.
Abstract (sommario):
This article discusses functional relations between (judicial, administrative and corporate) supervision over a court bailiff’s activities and the disciplinary liability of the enforcement authority. The author presents an opinion that the material scope of supervision over a court bailiff is mutually coinciding and overlapping, as a result of which the court bailiff’s assessment is not permanent given a possible different approach of another authority, which has a negative impact on court enforcement procedures. The second part of the article focuses on issues concerning the character of liability for disciplinary tort of an enforcement authority and pays special attention to the problem of setting liability limits and to a high degree of discretion in disciplinary measures taken by the Minister of Justice. The author is of the opinion that disciplinary regulations must be defined more precisely and that the separation of supervisory authorities should be strengthened. In turn, overlapping competences of various authorities within various procedures should be eliminated as much as possible.
10
Слинько, Д. В., e Л. І. Калєніченко. "Development of National Procedural Law in the Second Half of the XIX – Early XX Centuries". Law and Safety 80, n. 1 (19 marzo 2021): 156–64. http://dx.doi.org/10.32631/pb.2021.1.22.
Abstract (sommario):
The authors have studied one of the current historical and legal problems concerning the development of procedural law in the Ukrainian lands, which were part of the Russian and Austro-Hungarian Empires in the second half of the XIX – early XX centuries. Based on the analysis of scientific literature and relevant regulatory material, it has been noted that the beginning of the reform of procedural legislation of the Russian Empire can be considered the introduction of the institution of forensic investigators by the imperial decree in June 1860. Thus, the preliminary investigation was separated from the police, and investigators were part of the staff of the judicial department. The next stage was the judicial reform of 1864. As a result of the reform, the judicial system and procedural law were completely changed. Substantive law was also partially amended under that influence; there was the separation of criminal proceedings from the civil one; procedural norms of administrative justice began to be formed in the Ukrainian lands during that period, and a new branch of knowledge within legal science emerged, which was aimed at searching for the essence and nature of procedural law. The development of procedural law in the Ukrainian lands, which were part of the Austrian and, since 1868, the Austro-Hungarian Empires, was characterized by the obsolescence and imperfection of procedural legislation and its focus on the establishment of imperial positions. At the same time, it is possible to state its certain democracy and succession. It has been concluded that national procedural law during that period was characterized by the preservation and strengthening of certain features of the medieval process (secular nature, rationality, phasing), by the separation of procedural law from the substantive, by the formation of procedural branches of law, by the codification of procedural legislation, by the separation of administrative proceedings from criminal and civil proceedings; the functions and competence of the authorities and their officials were differentiated.
Tesi sul tema "Separation of administrative and judicial authorities":
1
Djedje, Zako Jean-Marie. "La dualité juridictionnelle en Afrique subsaharienne francophone : analyse d'un modèle importé à partir des exemples burkinabè, gabonais, ivoirien et sénégalais". Electronic Thesis or Diss., Université de Lille (2022-....), 2022. https://pepite-depot.univ-lille.fr/ToutIDP/EDSJPG/2022/2022ULILD004.pdf.
Abstract (sommario):
Les balbutiements des États africains subsahariens francophones autour de l'organisation de leurs justices administratives respectives révèlent la réalité d'un processus d'importation du modèle français mal maitrisé. Si le procès de la dualité juridictionnelle peut ainsi être ouvert sur cet espace, il ne saurait aboutir à sa condamnation systématique. La spécificité de plus en plus poussée du contentieux des collectivités territoriales, de l‟urbanisme, de la question de l‟environnement de même que l'exposition du bien commun en Afrique à cette sorte d‟« invasion » des investisseurs et puissances extérieures ne commandent plus la seule spécialisation de la juridiction administrative. Son indépendance et son autonomie sont désormais indispensables pour saisir pleinement ces enjeux nouveaux ou renouvelés. Il faut néanmoins distinguer ce que le modèle français importé comporte d'incompatibles avec l'encadrement efficace de l'action administrative en Afrique francophone et l'ineffectivité des réformes instituant ce modèle. En clair, les enjeux, le contexte et l'environnement de réception de la dualité juridictionnelle en Afrique francophone doivent être réexaminés, réévalués afin de créer une justice administrative à la fois fidèle à des principes indispensables à son effectivité et proche des contingences sociologiques de son nouveau milieuBetween the rejections, the partial implementation and aborted implementation, the reforms regulating the juridic duality illustrate the feeling that they do not function well but as purely symbolic or, somehow, as they indicate a process not grasped well. Accordingly, the transition from monism to juridic duality does not lead to a serious development of the administrative issue qualitatively and quantitatively in the francophone African countries. Presumably, if the process of duality can be accommodated, it would not lead to its systematic condemnation. The increasing uniqueness of the collectivities' territorial issues, the urbanism, the environmental issues as well as the attraction of African wealth leading to a kind of “scramble” of investors and powerful stranger forces do not ask for the only specialization of the administrative jurisdiction. Its independence and autonomy are now necessary in order to fully meet the new and renewed challenges. Nevertheless, we must distinguish the incompatible properties in the French imported model from the efficient coaching of the administrative action in francophone Africa and the incongruences of the reforms regulating this model. Briefly, the scope, the context and the accommodating environment of the juridic duality should be re-examined, reassessed in order to create an administrative law both faithful to the principles useful to its efficiency and reflecting the sociological features of new area
2
Künnecke, Martina. "Towards similar standards of judicial protection against administrative action in England and Germany? : a comparison of judicial review of administrative action and the liability of public authorities under the influence of European laws". Thesis, University of Hull, 2002. http://hydra.hull.ac.uk/resources/hull:8314.
Abstract (sommario):
This comparison has shown that the traditionally divergent positions, which are taken in the control of administrative action in England and Germany, display some common ground in very general terms on which decisions are being taken. The formulation of these general observations is valuable in the preparation of a transnational approximation of judicial review mechanism for the establishment of comparable levels of judicial protection in Europe. These results may be useful for future developments of a common system of judicial review across Europe, even though these results may only represent two pieces in the jigsaw. The comparison has also identified major differences and assessed the reasons for the diverging developments in a historical perspective. The identification of these differences is equally important because of the need to find compromises between divergent systems. Secondly, the thesis was concerned with an analysis of the degree of Europeanisation of the national judicial review systems and the concept of public liability as it is currently emerging. Here, some changes can be noted in both legal systems, which have led to a slow convergence of the systems. The changes in England are marked by an increasing openness for more transparency in the decision-making and the development of a more rights based culture. The substantive review of administrative decision through the application of sharper tools such as proportionality and substantive legitimate expectation mark a new era. Germany, on the other hand displays very high standards of review. The changes in Germany which were provoked mainly by case law of the European Court of Justice indicate the need to reduce the standard of review in some areas, such as the protection of substantive legitimate expectation in the context of the recovery of, state aid. The neglect of procedural protection which is illustrated by generous provisions which allow the in-trial curing of procedural effects displays an approach in Germany which is very focused on the substantive correctness of decisions. This attitude might, in the future lead to controversies in the context of European laws. Nevertheless, limitations to a convergence are inherently set by each national systems constitutional framework. The reasons for the different developments of both legal systems in the nineteenth and early twentieth century can not be ignored and will remain to an extent to preserve the national character of both systems. The variety of results, which have been identified in the four main chapters of this thesis were concerned with issues dealing with the institutional aspects as well as systematic aspects of judicial review and public liability in England and Germany. However, the nature of this comparison required the analysis of institutional contexts as well of the substantive and procedural judicial review mechanisms. The questions asked were concerned with identification of common principles and differences in a historical context, the degree of Europeanisation, which has led to an approximation of nationally divergent positions and the limitations, which are provided by each system's constitutional framework in which judicial review operates. The comparison focused on the development of a system of judicial review of administrative action in a historical perspective, the judicial control of the exercise of discretionary powers, fair procedures and their judicial review and the liability of public authorities in tort.
3
Defoort, Benjamin. "La décision administrative". Thesis, Paris 2, 2012. http://www.theses.fr/2012PA020097.
Abstract (sommario):
Expression la plus caractéristique du pouvoir de l’administration, la décision administrative est une notion familière. Pourtant, les données observables en droit positif s’avèrent hétérogènes et contingentes, compromettant la possibilité d’en circonscrire la teneur. Et derrière un consensus apparent, les présentations doctrinales de l’action adminis-trative unilatérale se caractérisent par un éclatement terminologique et conceptuel. Le choix a été fait de construire une définition, à partir d’une analyse critique du droit positif et du discours doctrinal, pour en éprouver les mérites en vue d’une meilleure compréhension de l’administration et de son droit. Signification impérative d’une manifestation de volonté uni-latérale et arrêtée d’une autorité administrative, la décision administrative constitue un utile outil d’analyse du pouvoir de l’administration, du contrôle du juge sur celui-ci et de la place à laquelle les citoyens peuvent prétendre dans son élaboration et sa mise en oeuvre. Distincte de l’incitation ou de la déclaration d’intention, la décision demeure le mode privilégié de direction de la conduite des citoyens et l’objet principal du contrôle du juge sur la légalité de l’action administrative. La portée explicative de cette définition est complétée par la compréhension qu’elle autorise des usages stratégiques que les acteurs du droit administratif peuvent en faire. En tant que signification, la décision révèle les luttes qu’ils mènent pour l’identification, au cas concret, de la portée des divers actes de l’administration ; enjeu de pouvoir, elle fait ressortir les stratégies de légitimation qui entourent son emploi par les autorités publiquesOne of the most characteristic expression of the administrative activities, the administrative decision is a familiar concept. Nevertheless, positive law on this subject turns out to be disparate and contingent. And behind a seeming consensus, the authors pre-sent the unilateral administrative actions with real terminological and conceptual disparities. The choice has been made to build a definition, from a critical analysis of positive law and doctrinal views, so as to test its merits with an eye to a better understanding of the Admin-istration and its law. Imperative meaning of a fixed and unilateral act of will of an adminis-trative body, the administrative decision is a useful tool to analyse the power of the Admin-istration, the judicial review of it and the place that citizens can aspire to in the process of its making and its implementation. Distinct from incitation or mere declaration of intent, deci-sion remains the preferred way of directing citizens behaviour and the main object of the judicial review of administrative acts. The explanatory impact of this definition is supple-mented by the understanding it enables of the strategical uses that actors of administrative law make of it. As a meaning, decision reveals the struggles they wage to identify, in a specif-ic case, the impact of the various acts of administrative bodies ; as a power issue, it brings out the strategies of legitimization that surround its use par public authorities
4
Sengupta, Arghya. "Independence and accountability of the Indian higher judiciary". Thesis, University of Oxford, 2014. http://ora.ox.ac.uk/objects/uuid:d16c344d-ba44-454f-9606-456b8524071e.
Abstract (sommario):
There is currently no satisfactory account of how judges of the Supreme Court of India and High Courts in the states are appointed, transferred, impeached or employed postretirement. For a higher judiciary commanding immense public attention, enjoying wide constitutional powers of judicial review, this is a conspicuous gulf in academic literature. This thesis intends to bridge this gulf by providing such an account. Part I extracts the Constituent Assembly Debates pertaining to these four facets of judicial functioning, describes key developments over time and analyses the extant processes in operation today. On this basis it makes three arguments: first, appointments to the higher judiciary and transfer of judges between High Courts follow processes that are indefensible as a matter of constitutional law; second, impeachment operates in an excessively slow and inefficacious manner; third, the pervasiveness of post-retirement employment of judges in government-appointed positions demonstrates inadequate attention to institutional design. Most crucially, each of these four aspects gives rise to significant concerns pertaining to judicial independence, accountability or both. This is not a peculiarly Indian problem— in several countries, the values of judicial independence and accountability have been deemed to be in tension, often irreconcilably. Part II tackles this widely articulated tension by providing a conceptual framework to understand these concepts. Its main argument is that both judicial independence and accountability are necessary for 'an effective judiciary'. Whether indeed the processes governing the four selected facets of judicial functioning in India lead to an effective judiciary is assessed in Part III. Where they are found lacking, appropriate reform is suggested. Such reform is intended to ensure that the selected processes operate in a manner that is justifiable in terms of judicial independence and accountability in principle and is efficacious in practice.
5
Jouffroy, Bruno. "Les prérogatives de puissance publique". Thesis, La Rochelle, 2012. http://www.theses.fr/2012LAROD030.
Abstract (sommario):
À l’heure où l’on parle de « banalisation » du droit administratif, une réflexion sur ce qui fait spécificité de ce droit, son exorbitance, présente un intérêt renouvelé. Les prérogatives de puissance publique sont au cœur de cette problématique. Notre étude permet de démontrer que les prérogatives de puissance publique entrent dans la catégorie des notions fonctionnelles. Cependant, nos recherches ne nous permettent pas d’affirmer avec fermeté que les prérogatives de puissance publique sont une notion conceptuelle. Il n’y a pas de critère général des dites prérogatives, elles sont diffuses et contingentes. Elles n’ont pas un contenu abstraitement déterminé une fois pour toutes. Leur contenu vit au rythme des évolutions du droit administratif. Nous pouvons cependant, essayer de donner une définition socle, c’est-à-dire une définition qui regrouperait une grande majorité des prérogatives, sans pour autant les regrouper toutes. Les prérogatives de puissance publique seraient alors, dans leur majorité – idée de noyau dur – et non dans leur globalité, définies comme des moyens d’action ou de protection exorbitants du droit commun, résultant de la puissance publique, détenus par une personne chargée de l’action administrative, en vue de satisfaire l’intérêt général. Cette définition socle présente cependant certaines imprécisions. Il apparaît alors que les prérogatives ne sont pas dans leur globalité une notion conceptuelleAt a time when administrative law has become « common place », it is with a renewed interest that one should to ponder about the specificity of this law, its outrageousness. The prerogatives of the public authorities are at the heart of this issue. Our study will show that the prerogatives of the public authorities are within the scope of the functional notions. However, despite our research, we cannot firmly assert that the prerogatives of the public authorities are a conceptual notion. No general criteria can define these prerogatives as they are diffused and contingent. They do not have an abstractly determined content once for all. Their content changes with the evolution of administrative law. We can, however, try to give a definition as a basis, that is to say a definition which would gather a majority of prerogatives, without including them all. The prerogatives of the public authorities would then be defined, for most of them – concept of hard core – and not in their totality, as outrageous means of action or of protection of the ordinary law, resulting from the public authorities, held by a person in charge of administrative action so as to satisfy the general interest. Yet, this definition as a basis contains some inaccuracies. That is why the prerogatives then are not a conceptual notion in their totality
6
Ghandour, Bertille. "Le traitement judiciaire des entreprises en difficulté". Thesis, Lille 2, 2016. http://www.theses.fr/2016LIL20025.
Abstract (sommario):
Traditionnellement, le droit des entreprises en difficulté recourt à l’autorité judiciaire pour la mise en oeuvre de ses dispositions et la réalisation de ses finalités. Toutefois, considérant l’évolution de ce droit, le traitement « tout judiciaire » des difficultés des entreprises est remis en cause. En effet, il ne s’agit plus seulement de sanctionner, mais davantage de prévenir les difficultés et de sauvegarder les entreprises, ce qui dénature l’office juridictionnel. De plus, les commerçants ne sont plus les seuls concernés par ce droit, ce qui aboutit à l’éclatement de la compétence juridictionnelle. Il y aurait lieu d’envisager d’autres modes de traitement. Prenant en compte l’existence d’un traitement administratif, connu du surendettement, mais, aussi, des entreprises, et favorisant le règlement alternatif des difficultés, une autre voie peut être proposée pour la prise en charge de l’impossibilité économique d’exécuter. La légitimité du juge, dont les interventions seraient recentrées et la compétence spécialisée, en ressortirait renforcée pour le traitement des entreprises en difficultéTraditionally, insolvency law appeals to the judicial authority to apply its provisions and to carry out its aims. However, regarding the evolution of this law, the exclusive judicial treatment of the difficulties is challenged. Indeed, it is no longer only to punish but more to prevent difficulties and safeguard businesses, which distorts the judicial office of the judge. In addition, traders are not the only ones affected by this law, leading to the outbreak of jurisdiction. Subsequently, there is a need to consider other modes of treatment. Taking into account the existence of an administrative process, known by over-indebtedness, but also by businesses, and promoting alternative dispute resolution of difficulties, another path can be proposed for the management of the economic impossibility of performance. The legitimacy of the judge, whose interventions would be refocused and skills specialised, would be strengthened in relation to the treatment of undertakings facing difficulties
7
Banhos, Sérgio Silveira. "Discricionariedade e princípios na hipermodernidade". Pontifícia Universidade Católica de São Paulo, 2007. https://tede2.pucsp.br/handle/handle/7555.
Abstract (sommario):
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Previous issue date: 2007-06-05This thesis addresses the recent doctrinal and jurisprudential tendency observed in the law in the context of hypermodernity, which indicates an effective reduction in the use of discretionality in administrative acts as a result of the integrated ap-plication of principles and rules. The traditional legalistic approach is currently giv-ing way to a more wide-ranging view, exemplified in Ronald Dworkin s theory of law as integrity through which not only rules, but also principles themselves, should be subjected to a systemic, integrated analysis. Given this, Dworkin s work forms the theoretical platform for the questions raised by this entire study, since the integrated application of principles and rules has become fundamental in the pursuit of the ideal of justice, bringing a new focus on the role of administrative law in an environment of deep and rapid change that typifies hypermodernity. Consid-ering the new concept of the separation of powers, the notion of strict legality, by presupposing a means of controlling the exercise of State power, must be set against other constitutional principles of equal importance, taking into account the particularities of each case in question. In this context, the traditional concept of discretionality is outmoded. Jurisdictive control of these acts is not only possible, but also absolutely essential in a democratic state of law. The synthesis of this new paradigm for administrative law is clear and should be an indissoluble part of administators agenda in contemporary society: citizens are the effective benefici-aries of constitutional rights and guarantees. The technique of balancing principles by assessing their values in the particular case is already part of the jurisprudence of hypermodernity, which is in synchrony with neopositivism and the theory of law as integrity
Esta dissertação demonstra a recente tendência doutrinária e jurisprudencial ob-servada no Direito da hipermodernidade, que indica efetiva diminuição da parcela de discricionariedade nos atos da Administração Pública, a partir da aplicação in-tegrada de princípios e regras. Da tradicional abordagem puramente legalista passa-se atualmente para uma visão mais abrangente na teoria do Direito como Integridade, de RONALD DWORKIN, mediante a qual não só normas, mas também princípios, devem ser analisados de maneira sistêmica, integrada. Dado isso, a obra de DWORKIN é a base teórica de apoio às questões instigadas por todo este estudo, porque a aplicação integrada de princípios e regras se tornou essencial à busca do ideal de justiça, trazendo novo enfoque quanto ao papel do Direito Ad-ministrativo nesta ambiência de profundas e rápidas transformações típicas da hi-permodernidade. Considerada a nova concepção da separação dos poderes, o princípio da legalidade estrita, por encerrar uma fórmula de contenção do exercí-cio do poder estatal, deve ser contraposto a outros princípios constitucionais de igual relevo, observado o caso concreto. A acepção clássica da discricionarieda-de, assim, encontra-se de vez superada. O controle jurisdicional desses atos não é só possível, mas imprescindível num Estado Democrático de Direito. A síntese desse novo paradigma para o Direito Administrativo é clara e deve pautar a agen-da dos administradores na contemporaneidade: os administrados são os efetivos destinatários dos direitos e das garantias constitucionais. A técnica de pondera-ção dos princípios contrapondo valores nos casos considerados já faz parte da realidade da jurisprudência da hipermodernidade, que se encontra sintonizada com o neopositivismo e com a teoria do Direito como Integridade
8
Lestrade, Éric. "Les principes directeurs du procès dans la jurisprudence du Conseil Constitutionnel". Thesis, Bordeaux 4, 2013. http://www.theses.fr/2013BOR40033/document.
Abstract (sommario):
Malgré le peu de fondements écrits consacrés à la justice dans le texte de la Constitution du 4 octobre 1958, le Conseil constitutionnel, en réalisant un travail d’actualisation à partir de la Déclaration des droits de l’homme et du citoyen, a permis l’émergence d’un droit constitutionnel processuel, construit autour de principes directeurs. Ceux-ci peuvent être répartis dans trois catégories : deux principales, selon que l’acteur du procès prioritairement concerné soit le juge ou les parties et une troisième, complémentaire, celle des garanties procédurales, permettant de favoriser les qualités essentielles du juge et de contrôler le respect des droits des parties. Une gradation des exigences du Conseil constitutionnel est discrètement perceptible entre les deux premières catégories de principes, plus facilement identifiable entre celles-ci et la dernière famille. Cette échelle décroissante de « densité » des principes directeurs du procès témoigne d’une véritable politique jurisprudentielle en matière de droit constitutionnel processuel, qui met l’accent sur l’accès au juge, doté des qualités indispensables à l’accomplissement de sa mission juridictionnelle. Toutefois, aussi satisfaisante que soit l’action du juge constitutionnel français à l’égard du droit du procès, celle-ci nécessiterait aujourd’hui le relais du constituant, afin de moderniser le statut constitutionnel de la justiceIn spite of a relatively low number of written dispositions dedicated to justice inside of the body of the Constitution of October 1958 4th, the constitutional Council, while updating this text through the Declaration of Human Rights, contributed to the development of a procedural constitutional law, which is structured around guiding principles. Those principles can be classified within three different categories : two major categories depend on the trial actor that is primarily concerned, either the judge or the parties; a third and additional category pertaining to procedural protections, fosters the essential qualities of the judge and secure the protection of the parties’ rights. A gradation of the requirements of the constitutional Council is discreetly perceptible between the first two categories of principles, and more easily identifiable between those first two categories and the last one. This decreasing scale of “density” yoked to the trial guiding principles highlights a genuine judicial policy when it comes to procedural constitutional law, emphasizing access to the judge, whom is given essential qualities in order to achieve its judicial duty. However, the action of the French constitutional judge, as satisfactory as it is towards the rights of the trial, would easily support the intervention of the constituent power in order to update Justice’s constitutional status
9
Yang, Yu-Chieh, e 楊宇倢. "Categorization of Judicial Review on Administrative Discretion : An Analysis from Viewpoints of the Separation of Powers". Thesis, 2010. http://ndltd.ncl.edu.tw/handle/83076142257577838120.
Abstract (sommario):
碩士臺灣大學
法律學研究所
98
Current level of administrative acts involve more extensively than before that handling cases are more likely to relate to reconciles of civil rights due to increasing of stakeholders concerned. In addition, modern public affairs are more complicated that the scope of executive power enlarges intensively. It’s still questionable whether traditional judicial reviews toward administrative discretion are proper to deal with different situations caused by varied conditions and referred issues. As the factors of modern administrative case concerned are more than before, judicial reviews on this need to be resorted for appropriate classification correspondingly. This thesis suggests the necessity of categorizing judicial reviews on administrative discretion under modern administrative case. Meanwhile, through reviewing the separation of powers that administrative discretion involved, this thesis directs to sort out appropriate recommendations for judicial review from modern administrative discretion, accomplishing the purpose of checks and balances of executive power effective. While varifying the necessity to categorize judicial reviews of administrative discretion as well as repective elements from different considerations, this thesis attempts to make suggestions toward judicial reviews of categozied adminstrative discretion. Following that, it studies the similarity between administrative discretion and indefinite concept of law. Judicial reviews of indefinite concept of law— the way to decide the density of reviews on types of cases, whether it can be used as reference. Furthermore, concerning the particularity of administrative discretion, it results in its conflict restriction of injunctive relief, prohibiting judges beyond the requirements of the case. Though it’s not the main topic in the thesis yet still related, it’s discussed in context.
10
Mhango, Mtendeweka Owen. "Separation of powers and the political question doctrine in South Africa : a comparative analysis". Thesis, 2018. http://hdl.handle.net/10500/24238.
Abstract (sommario):
Section 34 of the Constitution of the Republic of South Africa, 1996 outlines the scope
of judicial authority as encompassing the resolution of any dispute that can be resolved
by the application of law. The courts in South Africa have developed several
justiciability canons that restrain when courts may adjudicate disputes, such as
standing, mootness, ripeness, and the prevention of advisory opinions. These
justiciability canons emanate from constitutional considerations such as respect for
separation of powers and the proper role and scope of judicial review in a constitutional
democracy.
This study focuses on another justiciability canon - the political question doctrine. This
doctrine arises from the principle of separation of powers and, in the main, provides
that certain questions of constitutional law are allocated to the discretion of the elected
branches of government for resolution. As a result, such questions are non-justiciable
and require the judiciary to abstain from deciding them because not doing so intrudes
into the functions of the elected branches of government. The underlying theme is that
such questions must find resolution in the political process.
Through a comparative lens, the study examines the origins and current application of
the political question doctrine in selected countries with a view to obtain lessons
therefrom. It examines the origins of the doctrine, by placing particular emphasis on
the early application of the doctrine by the US Supreme Court. The study also
examines the modern application of the doctrine in the constitutional jurisprudence of
several countries, including Ghana, Uganda and Nigeria. It advances the view that
while the doctrine exists in the South African jurisprudence, the Constitutional Court
should articulate and develop it into a clear doctrine taking into account lessons from
those countries. The study offers some recommendations in this regard.
The study submits that the political question doctrine is an appropriate legal
mechanism through which the South African judiciary can address the recent problem
of the proliferation of cases brought to the courts that raise non-justiciable political
questions and threaten to delegitimize the role of the courts in a democracy.Public, Constitutional and International Law
LL. D.
Libri sul tema "Separation of administrative and judicial authorities":
1
Luchtman, Michiel. European cooperation between financial supervisory authorities, tax authorities and judicial authorities. [Antwerp, Belgium]: Intersentia, 2008.
2
Luchtman, Michiel. European cooperation between financial supervisory authorities, tax authorities and judicial authorities. [Antwerp, Belgium]: Intersentia, 2008.
3
Québec (Province). Groupe de travail sur l'autonomie administrative des tribunaux judiciaires. L' autonomie administrative des tribunaux judiciaires au Québec: Rapport du Groupe de travail sur l'autonomie administrative des tribunaux judiciaires. [Québec]: Le Groupe, 1993.
4
Timoshkin, K. A. Razdelenie i vzaimnoe sderzhivanie sudebnykh i ispolnitelʹnykh organov gosudarstvennoĭ vlasti. Ivanovo: Izdatelʹstvo "Ivanovskiĭ gosudarstvennyĭ universitet", 2011.
5
Oellers-Frahm, Karin. Review of constitutionality of legal norms and acts of public authorities in the Federal Republic of Germany. Heidelberg: C.F. Müller Juristicher Verlag, 1986.
6
Enterría, Eduardo García de. Democracia, jueces y control de la administración. 2a ed. Madrid, España: Editorial Civitas, 1996.
7
Enterría, Eduardo García de. Democracia, jueces y control de la administración. Madrid: Editorial Civitas, 1995.
8
Enterría, Eduardo García de. Democracia, jueces y control de la administración. 4a ed. Madrid: Editorial Civitas, 1998.
9
Bourserie, Jérôme. L' action administrative au regard de la jurisprudence du tribunal des conflits. Lille: ANRT. Atelier national de reproduction des thèses, 2006.
10
Cohen, Dany. La cour de cassation et la séparation des autorités administrative et judiciaire. Paris: Economica, 1987.
Capitoli di libri sul tema "Separation of administrative and judicial authorities":
1
Rosanvallon, Pierre. "Independent Authorities: History and Problems". In Democratic Legitimacy, tradotto da Arthur Goldhammer. Princeton University Press, 2011. http://dx.doi.org/10.23943/princeton/9780691149486.003.0005.
Abstract (sommario):
This chapter considers the rise of independent authorities within democratic countries. In most of these countries, the pace of creation of independent bodies charged with regulatory and oversight functions that had previously been entrusted to “ordinary” bureaucratic departments increased in the last two decades of the twentieth century. Although quite diverse in character, all of these organizations share a certain hybrid quality: they have an executive dimension even though they also exercise normative and judicial functions. The traditional concept of separation of powers has had to be stretched to accommodate them. The scope of the change has furthermore been considerable. In many countries vast areas of government intervention have increasingly been entrusted to these new organizations, clearly reducing the scope of administrative-executive power.
2
Elliott, Mark, e Jason Varuhas. "15. Liability of Public Authorities". In Administrative Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198719465.003.0015.
Abstract (sommario):
This chapter examines the nature and operation of the liability of public authorities, with particular emphasis on the tensions between the equality principle, a concern that authorities ought to be specially protected, and a concern that authorities ought to be subject to wider and more onerous obligations. The chapter first considers the relationship of public authority liability with judicial review and goes on to discuss the law of torts, especially the tort of negligence and what circumstances courts ought to impose negligence liability on public authorities for harm caused through exercises of statutory discretion. It then explores negligence liability in relation to omissions, human rights, and misfeasance in public office. It also reviews damages under the Human Rights Act 1998, contracts, restitution, and state liability in European Union law.
3
Nazzini, Renato. "Judicial Proceedings". In Concurrent Proceedings In Competition Law, 77–106. Oxford University PressOxford, 2004. http://dx.doi.org/10.1093/oso/9780199273799.003.0004.
Abstract (sommario):
Abstract This chapter analyses the different types of judicial proceedings in com-4.01 petition law matters. Judicial proceedings are proceedings where the final determination of rights and obligations is made by a court in the first place. In administrative proceedings, the final determination of the issues involved is made by the courts exercising judicial review or appeal jurisdiction over decisions or action by the administrative body. However, the case is determined, in the first place, by the administrative authority. In judicial proceedings, there is no final determination of the case as a whole before the judgment or the verdict of the court. Administrative authorities may bring
4
Endicott, Timothy. "13. Ombudsmen and inquiries". In Administrative Law, 500–546. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780192893567.003.0013.
Abstract (sommario):
This chapter examines ombudsmen and other facilities for investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, and the effects of ombudsmen’s reports. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes. The role of inquiries is also explained, with discussion of the Equality and Human Rights Commission, the Inquiries Act 2005, and public authorities’ duties to inquire under the common law and the European Convention on Human Rights.
5
Nazzini, Renato. "Administrative Proceedings". In Concurrent Proceedings In Competition Law, 41–76. Oxford University PressOxford, 2004. http://dx.doi.org/10.1093/oso/9780199273799.003.0003.
Abstract (sommario):
Abstract Judicial proceedings may be criminal or civil. They may be brought in the UK courts or in the courts of foreign States. Because of the important role they play in competition law, civil and criminal proceedings brought in the US are the only type of foreign judicial proceedings examined in this chapter. The scope for civil and criminal cases in competition law matters is, however, potentially infinite, depending on the countries involved, the applicable law, and the willingness of public authorities and private parties to press for criminal charges or bring civil proceedings.
6
Endicott, Timothy. "13. Ombudsmen". In Administrative Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198804734.003.0013.
Abstract (sommario):
This chapter examines ombudsmen and other forms of investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, the effects of ombudsmen’s reports, judicial review of ombudsmen, the European Ombudsman, the Equality and Human Rights Commission, and the Inquiries Act 2005. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes.
7
Endicott, Timothy. "11. Standing: litigation and the public interest". In Administrative Law, 428–64. Oxford University Press, 2021. http://dx.doi.org/10.1093/he/9780192893567.003.0011.
Abstract (sommario):
This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not need to assert a right to a remedy, but must have a ‘sufficient interest’ in the matter in dispute. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing for public authorities, and standing to intervene.
8
Endicott, Timothy. "11. Standing: litigation and the public interest". In Administrative Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198804734.003.0011.
Abstract (sommario):
This chapter examines standing—the entitlement to be heard by a court. No judicial process of any kind may proceed without it. In an ordinary claim, the claimant’s standing is based on his assertion of grounds for his claim to a remedy. In a claim for judicial review, the claimant does not assert a right to a remedy, but must have a ‘sufficient interest’ in the matter. The discussion covers campaign litigation, costs in campaign litigation, standing in an ordinary claim for a declaration, standing in Human Rights Act proceedings, standing before the European Court of Justice, standing for public authorities, and standing to intervene.
9
Hendley, Kathryn, e Peter H. Solomon. "Constitutional and Administrative Justice". In The Judicial System of Russia, 179–98. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192895356.003.0012.
Abstract (sommario):
Abstract Chapter 11 examines constitutional and administrative justice in the Russian Federation, stressing the adjustments and compromises made by the Russian Constitutional Court (RCC) that facilitated its survival in an authoritarian state. This chapter starts with a portrait of the RCC in the Yeltsin years and goes on to explain the efforts of President Putin to assert increasing control over it and the Court’s pragmatic response to its difficult position. This meant consistently delivering to the regime the decisions it desired in cases that mattered to it, while giving priority to legal and constitutional considerations in other cases. The chapter goes on to discuss the changing relationship of the RCC to the European Court of Human Rights and how the constitutional and legal changes of 2020 may distort the RCC’s role. Finally, we discuss the progress of administrative justice in Russia, and conclude with thoughts about the ways that constitutional justice is joining administrative justice in helping authorities to identify and fix anomalies without threats to the system.
10
"G Article 146 Judicial Review of Administrative Action". In Constitutionalism - Human Rights - Separation of Powers, 113–54. Brill | Nijhoff, 2006. http://dx.doi.org/10.1163/ej.9789004152410.i-164.41.
Atti di convegni sul tema "Separation of administrative and judicial authorities":
1
Marković, Velisav. "O delotvornosti odluka Ustavnog suda Srbije i naknadi štete za nepoštovanje odluka nakon utvrđene povrede prava na suđenje u razumnom roku". In Prouzrokovanje štete, naknada štete i osiguranje. Institut za uporedno pravo, Udruženje za odštetno pravo, Pravosudna akademija, 2023. http://dx.doi.org/10.56461/zr_23.ons.16.
Abstract (sommario):
In administrative judicial practice, there is a large number of cases concerning the realization of the right of police officers to salary supplements, which have lasted for more than fifteen years and which have not yet been resolved. In the same cases, the Constitutional Court of Serbia made two decisions in which it found a violation of the right to a trial within a reasonable time, awarded compensation for damages and ordered the administrative authorities to end the proceedings as soon as possible. However, the administrative bodies do not respect the decisions of the Constitutional Court, which raises the question of the effectiveness of the decisions of the Constitutional Court as well as the amount of compensation determined. In the paper, the author presents the constitutional judicial practice regarding the realization of the right to a trial within a reasonable time in administrative proceedings and the disputes in which police officers participate as party in claim for realization of rights from the employment relationship, points out the shortcomings and makes proposals for solutions.
2
Özkan, Gürsel. "The Settlement of Compansation Disputes through Peace before Administrative Judiciary". In International Conference on Eurasian Economies. Eurasian Economists Association, 2016. http://dx.doi.org/10.36880/c07.01544.
Abstract (sommario):
According to the Article 13 of the Law No. 2577, even though one must apply to the authorities as a preliminary condition of court case before filing a fully judicial lawsuit in terms of the administrative action, Article 13 of Law No. 2577 with its current form does not provide a contribution to the provision of the pre-trial dispute resolution. The Decree Law No. 659 set up the way for application which would also include the compensation claims arising from administrative actions that were designed according to The Article 13 of Law No. 2577. In this arrangement , the preference is left to the person concerned to make a choice either to refer to peace or not to against losses arising from administrative processes; one is not given the chance to eliminate the loses by means of peace during the process of law after administrative process is cancelled by law; this also prevents us to come to the desired objective because it doesn’t provide adequate legal assurance to the top executives and members of the legal disputes commission for their business and operations.
3
Fedorov, Roman, e Dmitry Pixin. "On the question of the independence of the judicial branch in the theory of separation of powers". In Current problems of jurisprudence. ru: Publishing Center RIOR, 2021. http://dx.doi.org/10.29039/02058-6/252-258.
Abstract (sommario):
The article is devoted to the principles of independence and independence of the judiciary from the executive and legislative branches of government. The problems of the system of checks and balances in the theory of separation of powers are analyzed. Forecasts are made on the effect of levers of pressure in relation to the courts from other authorities. The article analyzes certain legal acts concerning the interaction of the judiciary with other branches of government.
4
Jassim TOMAN, Shaimaa, Aymen Raheem ABDULAALI e Ruqaya Adel HAMZA. "THE AUTHORTY OF THE ADMINISTRATIVE INVESTIGATION AUTHORTY TO GRANT AMNESTY TO THE EMPLOYEE WHEN REPORTING CASES OF ADMINISTRATIVE AND FINANCIAL CORRUPTION". In III. International Congress of Humanities and Educational Research. Rimar Academy, 2022. http://dx.doi.org/10.47832/ijhercongress3-7.
Abstract (sommario):
Financial and administrative corruption is one of the most important risks facing the economies of the countries of the world, especially the economies of developing countries, as it represents a waste of wealth or its investment in unproductive areas, as well as the theft of the bulk of it by the corrupt, as corruption in its many forms represents a great challenge to societies and governments as a whole, which It requires the existence of effective, integrated and broad plans and efforts, whether at the economic, social, legal, educational, political or security levels, to eliminate this dangerous phenomenon, because it represents a natural product of abnormal and negative situations in the absence of legal accountability with the progress of effective government legislation, and the importance of research lies in Contribute to the modernization of Iraqi legislation by finding solutions that contribute to detecting corruption crimes in state departments and then trying to limit their spread, as well as encouraging reporting cases of financial and administrative corruption in state institutions. The Code of Criminal Procedure granted the investigative judge the power to offer a judicial pardon to the accused of a felony in Article 129 of the Code of Criminal Procedure No. (23 of 1971), and with reference to the amended State Employees Discipline Law No. 14 of 1994, we did not find such authorization To the administrative investigation authorities, despite the contribution of many state employees to the detection of cases of financial and administrative corruption, and the problem of research arises about whether one of the employees involved in the crime of corruption submitted to his administration for news of administrative and financial violations that constitute a criminal offense if proven, so is it permissible for the investigation authority The administration offered amnesty from prosecution in the event that the employee provided important information that reveals the network of financial and administrative corruption in his department, and does this have any impact on the authority of the criminal investigation? After researching the concept of the public employee and then researching the phenomenon of financial and administrative corruption in state departments and the concept of judicial pardon and the authority of the administrative investigation authority to offer amnesty to the accused, it became clear to us that offering judicial pardon to the accused is the jurisdiction of the investigative judge alone, in exchange for obtaining the testimony of the accused against other perpetrators, and that the administrative investigation authority does not have the authority to offer amnesty to the accused employee, and this pardon does not have any obligatory effect for the investigative judge, and the research concluded with the development of proposals represented in updating laws to confront major developments in the field of methods of committing crimes, by proposing to amend Article (10) From the Law of Discipline of State and Public Sector Employees No. (14 of 1991) and Article 129 of the Code of Criminal Procedure No. (23 of 1971).
5
Kovács-Szépvölgyi, Enikő. "The Role of the State in Child Protection in Hungary during the Period of the Austro-Hungarian Monarchy". In Mezinárodní konference doktorských studentů oboru právní historie a římského práva. Brno: Masaryk University Press, 2022. http://dx.doi.org/10.5817/cz.muni.p280-0156-2022-11.
Abstract (sommario):
The complex, multi-jurisdictional regulation of child protection in Hungary, coordinating the activities of the competent bodies in this field, emerged during the period of the Austro-Hungarian Monarchy (1867–1918). Legislation reflected the change in the way childhood were perceived, recognising that children need additional protection in accordance with their age-related physical and psychological characteristics. In the narrower framework of child protection, administrative child protection dealt with children who had been declared abandoned by the authorities, while judicial child protection dealt with juveniles and children who had been debauched. The two areas were in some ways linked, the legislator’s aim was to ensure cooperation between the public administration and the justice system for the protection of children.
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Kovaļevska, Anita. "Faktiskās rīcības seku novēršana tiesību uz efektīvu tiesas aizsardzību kontekstā". In Latvijas Universitātes 81. starptautiskā zinātniskā konference. LU Akadēmiskais apgāds, 2023. http://dx.doi.org/10.22364/juzk.81.26.
Abstract (sommario):
In order to ensure that the right to effective judicial protection is respected, the court must have the power to order that the consequences of the authorities’ real action be remedied. In Latvia, such competence of administrative courts is recognised. However, there is no uniformity in the case law as to whether the court deals with this issue as one of the issues to be decided in an action for the cessation of a real action or an action for a declaration that a real action is unlawful, or whether the court treats it as an action for taking a real action. A comparison of the two options leads to the conclusion that both are legally permissible, but that the first option has some advantages.
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Rapajić, Milan. "UPRAVNOPRAVNI ASPEKTI ZAŠTITE PRAVA POTROŠAČA U SRPSKOM PRAVU". In XIX majsko savetovanje. University of Kragujevac, Faculty of Law, 2023. http://dx.doi.org/10.46793/xixmajsko.759r.
Abstract (sommario):
In the work, the author pays attention to the administrative and legal aspects of consumer rights protection in Serbian law. Namely, the protection of consumer rights can be divided into public law and private law forms. In that division, administrative legal protection of consumer rights is included in public law forms. It is pointed out the already stated position in theory that one of the differences between administrative and judicial protection of consumers is the fact that the administrative authority has greater freedom in interpreting the protection goals, and at the same time, greater responsibility for the implementation of the goals. However, the views on the shortcomings of the administrative legal protection of consumer rights were also pointed out. In the Serbian legal system, the protection of the collective interests of consumers is entrusted to the administrative body in a special administrative procedure. This procedure shows quite a few deviations from the general administrative procedure. The advantage of the administrative procedure compared to the civil procedure should be efficiency and economy. Once established, the trader's behavior as a violation of the collective interest affects all consumers, so in case they repeat such practice, the others can join the already established violation, which is now directly sanctioned with the help of inspection supervision, without the need to be examined in a specific case. Inspectional supervision is reduced to the totality of activities of state administration bodies by which they examine the implementation of laws and other regulations, through direct insight into the operations and actions of natural and legal persons and, depending on the results of the supervision, pronounce the measures for which they are authorized. It is regulated by a special law and is a form of legal supervision, which is carried out with administrative powers by state administration authorities over non-authoritative activities of controlled subjects. The paper indicates that inspection supervision is an institutional form of consumer rights protection.
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Zhang, Chao. "Risk of Shareholders Contributing Land Management Right as Capital under Separation of Land Ownership, Contract Right and Management Right and the Risk Avoidance". In 2nd International Conference on Judicial, Administrative and Humanitarian Problems of State Structures and Economic Subjects (JAHP 2017). Paris, France: Atlantis Press, 2017. http://dx.doi.org/10.2991/jahp-17.2017.67.
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Sviridenko, M. V. "INFRASTRUCTURAL AND ECONOMIC OPPORTUNITIES FOR THE DEVELOPMENT OF A MUNICIPALITY IN THE CONDITIONS OF CHANGING ITS ADMINISTRATIVE STATUS: THE POTENTIAL OF THE KOLTUSH RURAL SETTLEMENT OF THE LENINGRAD REGION". In Regional economy and territorial development. INSTITUTE OF PROBLEMS OF REGIONAL ECONOMICS OF THE RUSSIAN ACADEMY OF SCIENCES, 2021. http://dx.doi.org/10.52897/978-5-8088-1636-7-2021-15-1-102-114.
Abstract (sommario):
The article presents the results of comparing the socio-economic development of the Koltush rural settlement with some urban settlements of the Leningrad region. It is demonstrated that the considered municipality demonstrates the pace of development in some cases even higher than similar urban settlements of the Leningrad region. The infrastructural and economic opportunities for the development of the municipality are identified. The results of the study can be used in practical activities of regional authorities and local self-government as well as serve for further scientific researches in the field of effective separation of the powers between different levels of government.
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Selz, Allen. "Section XII of the ASME Code—Transport Tanks". In ASME 2003 Pressure Vessels and Piping Conference. ASMEDC, 2003. http://dx.doi.org/10.1115/pvp2003-1790.
Abstract (sommario):
In December 1996, the United States Department of Transportation requested that ASME create a new code for transport tanks. ASME formed Subcommittee XII to fulfill this request. The scope of the subcommittee is the development of codes and standards covering the construction, in-service inspection, alteration and repair of transport tanks used for the carriage of dangerous goods by all means of transport; to develop criteria for accreditation of manufacturers of these tanks; and to develop codes and standards that are suitable for reference by regulatory authorities and safety organizations world-wide. Some significant code issues are the separation of technical and administrative requirements, third-party inspection, minimal impact on the industry’s current way of doing business, and the technical issues associated with pressure relief for vessels that can overturn. The first edition is in the hands of ASME Technical Publications and is scheduled to be issued in late 2003.
Rapporti di organizzazioni sul tema "Separation of administrative and judicial authorities":
1
Lewis, Dustin, Radhika Kapoor e Naz Modirzadeh. Advancing Humanitarian Commitments in Connection with Countering Terrorism: Exploring a Foundational Reframing concerning the Security Council. Harvard Law School Program on International Law and Armed Conflict, dicembre 2021. http://dx.doi.org/10.54813/uzav2714.
Abstract (sommario):
The imperative to provide humanitarian and medical services on an urgent basis in armed conflicts is anchored in moral tenets, shared values, and international rules. States spend tens of billions of dollars each year to help implement humanitarian programs in conflicts across the world. Yet, in practice, counterterrorism objectives increasingly prevail over humanitarian concerns, often resulting in devastating effects for civilian populations in need of aid and protection in war. Not least, confusion and misapprehensions about the power and authority of States relative to the United Nations Security Council to set policy preferences and configure legal obligations contribute significantly to this trajectory. In this guide for States, we present a framework to reconfigure relations between these core commitments by assessing the counterterrorism architecture through the lens of impartial humanitarianism. We aim in particular to provide an evidence base and analytical frame for States to better grasp key legal and policy issues related to upholding respect for principled humanitarian action in connection with carrying out the Security Council’s counterterrorism decisions. We do so because the lack of knowledge regarding interpretation and implementation of counterterrorism resolutions matters for the coherence, integrity, and comprehensiveness of humanitarian policymaking and protection of the humanitarian imperative. In addition to analyzing foundational concerns and evaluating discernible behaviors and attitudes, we identify avenues that States may take to help achieve pro-humanitarian objectives. We also endeavor to help disseminate indications of, and catalyze, States’ legally relevant positions and practices on these issues. In section 1, we introduce the guide’s impetus, objectives, target audience, and structure. We also describe the methods that we relied on and articulate definitions for key terms. In section 2, we introduce key legal actors, sources of law, and the notion of international legal responsibility, as well as the relations between international and national law. Notably, Security Council resolutions require incorporation into national law in order to become effective and enforceable by internal administrative and judicial authorities. In section 3, we explain international legal rules relevant to advancing the humanitarian imperative and upholding respect for principled humanitarian action, and we sketch the corresponding roles of humanitarian policies, programs, and donor practices. International humanitarian law (IHL) seeks to ensure — for people who are not, or are no longer, actively participating in hostilities and whose needs are unmet — certain essential supplies, as well as medical care and attention for the wounded and sick. States have also developed and implemented a range of humanitarian policy frameworks to administer principled humanitarian action effectively. Further, States may rely on a number of channels to hold other international actors to account for safeguarding the humanitarian imperative. In section 4, we set out key theoretical and doctrinal elements related to accepting and carrying out the Security Council’s decisions. Decisions of the Security Council may contain (binding) obligations, (non-binding) recommendations, or a combination of the two. UN members are obliged to carry out the Council’s decisions. Member States retain considerable interpretive latitude to implement counterterrorism resolutions. With respect to advancing the humanitarian imperative, we argue that IHL should represent a legal floor for interpreting the Security Council’s decisions and recommendations. In section 5, we describe relevant conduct of the Security Council and States. Under the Resolution 1267 (1999), Resolution 1989 (2011), and Resolution 2253 (2015) line of resolutions, the Security Council has established targeted sanctions as counterterrorism measures. Under the Resolution 1373 (2001) line of resolutions, the Security Council has adopted quasi-“legislative” requirements for how States must counter terrorism in their national systems. Implementation of these sets of resolutions may adversely affect principled humanitarian action in several ways. Meanwhile, for its part, the Security Council has sought to restrict the margin of appreciation of States to determine how to implement these decisions. Yet international law does not demand that these resolutions be interpreted and implemented at the national level by elevating security rationales over policy preferences for principled humanitarian action. Indeed, not least where other fields of international law, such as IHL, may be implicated, States retain significant discretion to interpret and implement these counterterrorism decisions in a manner that advances the humanitarian imperative. States have espoused a range of views on the intersections between safeguarding principled humanitarian action and countering terrorism. Some voice robust support for such action in relation to counterterrorism contexts. A handful call for a “balancing” of the concerns. And some frame respect for the humanitarian imperative in terms of not contradicting counterterrorism objectives. In terms of measures, we identify five categories of potentially relevant national counterterrorism approaches: measures to prevent and suppress support to the people and entities involved in terrorist acts; actions to implement targeted sanctions; measures to prevent and suppress the financing of terrorism; measures to prohibit or restrict terrorism-related travel; and measures that criminalize or impede medical care. Further, through a number of “control dials” that we detect, States calibrate the functional relations between respect for principled humanitarian action and countering terrorism. The bulk of the identified counterterrorism measures and related “control dials” suggests that, to date, States have by and large not prioritized advancing respect for the humanitarian imperative at the national level. Finally, in section 6, we conclude by enumerating core questions that a State may answer to help formulate and instantiate its values, policy commitments, and legal positions to secure respect for principled humanitarian action in relation to counterterrorism contexts.