Subsidiary and analogous application of Law in general administrative procedure

Abstract

Considering that the expansion of legal regulation and multiplication of legal norms in the legal order of the Republic of Serbia have engendered over two hundred (substantive and procedural) legislative acts referring to the application of the General Administrative Procedure Act (GAPA), there is no general law in the Serbian legal order that could be compared to the GAPA in terms of correlation with other laws. Yet, in our judicature and legal science, there are no clear criteria for regulating the relationship between the GAPA and other (subject-specific) legislative acts referring to the application of the GAPA provisions. The relationship between the GAPA and subject-specific legislative acts may be based on the regime of legal subordination and the regime of legal referral. It further leads to the distinction between subsidiary and analoguous application of the general law, which is the author's original standpoint. Analogous application entails the application of the general law in accordance with the nature of the relationship between the legal procedure rules and the subject matter of legal regulation, whereas subsidiary application entails the application of the general law as a whole in all matters which are not regulated by a subject-specific law. In view of the obligation to harmonize subject-specific legislative acts with the GAPA, the author is of the opinion that such harmonization cannot be put into effect without amending the GAPA. Therefore, the GAPA provisions shall: (1) embody the distinction between subsidiary and analogous application of the GAPA, and (2) strengthen the direct application of the GAPA in administrative matters.