Suchergebnisse

Under the reform of article 1 of the Federal Constitution (June 10, 2011), all government authorities have the obligation to respect human rights. The main inquiry of this essay is whether the Executive can, ex officio, revoke administrative acts for violations of human rights or stop enforcing a law it deems unconstitutional. Following this line of inquiry, for the purposes of this essay, the hypothesis is affirmative. The first part of this work analyzes several techniques and their comprehensive interpretation. Doctrine and comparative law are used to frame the issue. The second part consists of a constitutional analysis of article one under several legal interpretation theories to obtain preliminary results. The third part focuses particularly on revocation in the Administrative Procedure Act and the Mexican Federal Tax Code, in addition to relevant case law. Lastly, it is concluded that, in certain cases involving legal certainty, revocation can apply; however, refusal to enforce a law deemed unconstitutional cannot.

The administrative act, a legal institution of rare preeminence in any legal system of the democratic world, represents a symbol of the structured activity of administration. It involves the manner of transposing the imperative, unequivocal, and unidirectional will of superordinate state structures into objective reality. This will enters specialized legal relations and is characterized by the exercise of public power.
The administrative act represents, in this manner, a representative and well-defined means of imposing the will of organized state structures at every level of society by transposing informed but conceptualized will into a materialized and easily perceptible resort.
As conceptualized in Romanian doctrine, the specific act of administrative law represents the primary and revealing form of public administration activity. It is the only legal act issued/adopted by authorities, institutions, or other public bodies that produces concrete effects concerning its recipients and beyond.
However, this distinct type of legal act is characterized by a series of distinctive features that individualize it within the framework of internal legal relations and reveal its specific aspects, as well as the effects emanating from its content.
Not all administrative acts have the same form, structure, effects, characteristics, purposes, and certainly, not all have the same impact on the individualized legal order at the level of society.
Therefore, in specialized doctrine followed by the practice of national courts, a series of distinct criteria have been imposed for crystallizing distinct typologies of administrative acts.

The material scope of arbitration in administrative matters has recently been considerably enlarged, especially in regards to the administrative act. It was recognized that the Arbitral Tribunal has the power to appreciate the legality of an administrative act. Traditionally, the legality of administrative acts was reserved for state courts. However, the legal incongruity was notorious. Article 180 (1) (c) of the Code of Procedure of the Administrative Courts (CPTA), 2002, provided that arbitral tribunals could enounce "matters relating to administrative acts that could be revoked without grounds for invalidity". We could diagnose two types of legal failures. First, within Administrative Law, it was incomprehensibly admissible to arbitrate the legality of administrative acts pertaining to the contractual sphere and exclude all others from the control of arbitration law. The other flaw suffered by the regime of arbitrability of administrative acts related to the possibility of arbitrability of tax acts3 and the imposition of strong limitations on the control of the legality of administrative acts in Administrative Law. The revision of the CPTA in 2015 implied a change in the legislative paradigm in the matter of administrative arbitration, providing for the possibility by the arbitral tribunals of assessing the legality of the administrative act, thus putting an end to a doctrinal dispute about the admissibility of the same. However, a literal interpretation of the precept would lead us to subsume within the jurisdiction of the arbitral tribunals the assessment of the legality of any administrative act. Considering the legislative scope of the legal prediction enunciated, the present work will have as its objective to answer three key questions. The first is to assess to what extent the arbitral tribunals may rule on the merit and legality of the administrative act. The second is to determine whether all administrative acts are arbitrable. The third concerns the search for a criterion of arbitrability of the administrative act, especially in matters related to legality.

The relevance of the topic has been determined by the entry into force of the Law of Ukraine «On Administrative Procedure». The article is aimed at analyzing the approaches on understanding the features of an administrative act existing in Ukrainian legal doctrine and formulating recommendations oriented on building their universal system. Various methods of scientific cognition, including comparative and legal, systematic and structural, analysis, synthesis, and others constitute the research methodology. It makes it possible to systematically and consistently solve scientific problems, to study and compare the standpoints of scholars, the provisions of legal acts of the relevant countries, caselaw and to formulate the author's conclusions. A number of systematic problems related to the incorrect understanding of the essence and features of administrative acts has been revealed in the research process. This situation, according to the author's opinion, is largely related to the imperfection of legal definition of an administrative act, which was enshrined in the Law of Ukraine «On Administrative Procedure». Further analysis of the works of Ukrainian authors has demonstrated that in order to formulate relevant scientific provisions they in the vast majority use the results of Soviet authors. According to the author, such an approach is wrong; it blocks the development of modern, practically oriented concepts and conclusions. The author of the article has separately emphasized the fact that the features of an administrative act perform very important practical function. They help to solve comprehensive objectives primarily arising at the legal enforcement level. The author provides relevant detailed explanations on this matter. The article's center of attention is the detailed presentation of the features of an administrative act. While performing this objective, the author has widely used the achievements of Western European authors, as well as refers to certain decisions of the judicial power to demonstrate the validity of the formulated conclusions and recommendations. As a result of the conducted research, the author comes to a sound conclusion that an administrative act should be characterized by the following features: 1) it represents a decision; 2) it is taken by an administrative agency; 3) it is oriented on the application / implementation of the norms of public (administrative) law; 4) it causes legal consequences in the form of establishing the rights or obligations for its addressee (regulatory nature); 5) it has a concrete and individual character; 6) it is characterized by an external orientation of the action. The conducted research allowed to draw the following conclusion:the features of an administrative act play a constitutive role by helping to solve various theoretical and practical problems. The features of an administrative act are universal in nature. It means that they do not depend (should not depend) on the national peculiarities of legal regulation and ideas about it. Ukrainian authors must be extremely responsible while formulating their own conclusions in regard to those categories and provisions having a supranational nature.

The administrative act represents one of the forms through which the public authority accomplishes its mission, being the most important of these from a legal point of view. The Administrative Code introduces new concepts and regulates the administrative activity that represents all individual and normative administrative acts, administrative contracts, real acts and administrative operations performed by public authorities in public power, thus making it possible to organize law enforcement and direct law enforcement.

İdari işlemin kimliğini oluşturan icrailik karakteri, idari işlemin üçüncü kişiler üzerinde doğrudan doğruya çeşitli hukuksal sonuçlar doğurmasını sağlamaktadır. İdari yargıcı tarafından idari işlemin icrailiği ile kesin ve yürütülebilir olma şartı birlikte kullanılmaktadır. İcrailik karakteri zincir işlemler ve ayrılabilir işlemler kuramlarının oluşmasında rol oynamıştır. Böylece iptal davalarının uygulama alanı genişlemiştir. İcrai olmayan idari işlemler kural olarak iptal davasına konu olmamaktadır. Ancak somut olayda ilgili idari işlemin icrailik karakterine sahip olup olmadığı değerlendirilmelidir. ; The executability character that make up the identity of the administrative act provide the administrative act cause a variety of legal results directly on third parties. The executability of the administrative act and the condition of being final and executable for administrative act are used in conjunction by the administrative judge. The executability character played a role in the formation of theories of chain acts theory and severable acts theory. Thereby, the application area of action for annulment is expanded. As a rule, non-executory acts are not subject to action for annulment. However, whether or not having the executability character of the administrative act should be considered for the present case.