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Administrative Procedure and Judicial Review in Spain 西班牙的行政程序与司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0013
O. Mir
{"title":"Administrative Procedure and Judicial Review in Spain","authors":"O. Mir","doi":"10.1093/oso/9780198867609.003.0013","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0013","url":null,"abstract":"This chapter discusses administrative procedure and judicial review in Spain. The Spanish Constitution of 1978 (CE) devotes two central provisions to judicial review of administrative action. Article 106(1) CE, located in Part IV on government and administration, establishes that 'The Courts control the power to issue regulations and to ensure that the rule of law prevails in administrative action, as well as to ensure that the latter is subordinated to the ends which justify it'. On the other hand, Article 24(1) CE enshrines the fundamental right to effective judicial protection, which also includes protection against administrative action: 'Every person has the right to obtain the effective protection of the judges and the courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended'. Judicial review is usually performed by specific courts fully integrated into the judiciary, the so-called jurisdicción contencioso-administrativa (administrative jurisdiction), competent to review administrative action subject to Spanish administrative law.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129417535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 1
Administrative Procedure and Judicial Review in Hungary 匈牙利的行政程序和司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0009
A. Varga
{"title":"Administrative Procedure and Judicial Review in Hungary","authors":"A. Varga","doi":"10.1093/oso/9780198867609.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0009","url":null,"abstract":"This chapter studies administrative procedure and judicial review in Hungary. Section (1) of Article XXVIII of the Basic Law of Hungary (the Constitution of 2011) regulates the right to a fair trial reproducing the text almost word-for-word as found in Article 6 of the European Convention on Human Rights (ECHR). Consequently, anyone effected by an administrative measure has the (constitutional) right to judicial review. Section (7) guarantees the right to legal remedy against decisions of the courts, the public administration, or other authorities that infringe their rights or demonstrable interests. The two regulations are effective even separately, but their combined effect is that the judicial review of administrative action is an incontestable constitutional right. Administrative courts decide on the legality of the administrative action from the point of view of substantive and procedural administrative law, the judicial review is regulated by Act I of 2017 on the Code on Judicial Review of Administrative Actions, while a lawsuit for damages is heard by the ordinary court in a civil law procedure regulated by Act CXXX of 2016 of the Code of Civil Judicial Procedures.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122490113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
European Union Member States and Other European Countries 欧盟成员国和其他欧洲国家
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0019
J. Ziller
{"title":"European Union Member States and Other European Countries","authors":"J. Ziller","doi":"10.1093/oso/9780198867609.003.0019","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0019","url":null,"abstract":"This chapter focuses on the relevance of a distinction between European Union (EU) Member States on the one hand and non-EU member states on the other when trying to identify the common core of the law regarding judicial review of administrations in Europe. It begins by looking at how EU membership impacts on the issues of substance and process in the Member States' laws of judicial review of administration. The chapter then considers how the differences and similarities between EU Member States can be interpreted. It also studies the cases of Switzerland and Ukraine in greater detail. There is very little commonality between Ukraine and Switzerland, apart from the fact that both countries are Members of the Council of Europe (CoE) and thus parties to the European Convention on Human Rights (ECHR), and that they are not members of the EU, which might be an especially good reason to compare them.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128194745","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Procedure and Judicial Review in the European Union 欧盟的行政程序与司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0006
Matteo Gnes
{"title":"Administrative Procedure and Judicial Review in the European Union","authors":"Matteo Gnes","doi":"10.1093/oso/9780198867609.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0006","url":null,"abstract":"This chapter assesses administrative procedure and judicial review in the European Union. The requirement of judicial oversight of administrative action, which results from the common constitutional traditions of the Member States of the EU, is a general principle of EU law, and it is applicable both to proceedings before the Court of justice and before national courts, when EU law is invoked before them. The EU courts carry out a generalized review on any binding acts. Although there are certain differences between acts that may be challenged according to the different remedies provided by EU law, in order to be challengeable, the acts must fulfil several conditions. The most important are: they must be binding and produce legal effects, be definitive and be taken by EU institutions in the exercise of their competencies. Article 263 TFEU provides that the acts of EU institutions may be annulled on grounds of 'lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers'. Acts or failure to act may give rise to the liability of EU institutions.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121582382","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Judicial Review of Administrative Action: Europe and Latin America 行政行为的司法审查:欧洲和拉丁美洲
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0020
M. P. Chiti
{"title":"Judicial Review of Administrative Action: Europe and Latin America","authors":"M. P. Chiti","doi":"10.1093/oso/9780198867609.003.0020","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0020","url":null,"abstract":"This chapter provides a comparison of the discipline of judicial review of administrative action in Latin America and in Europe. In terms of judicial review in Latin America, international organizations did not exercise an 'integrative influence' as the Council of Europe and the European Union did in Europe. It may be said that the relative homogeneity of the systems of judicial review in Latin America is mainly the result of the cultural polity formed by many states resulting from the disintegration of the Spanish and Portuguese domains. The chapter then considers the main points of the general part of Professor Brewer-Carias's report on the discipline of judicial review of administrative action in Latin America, which shows a situation very similar to the European one. These include the nature of judicial review; administrative procedure and judicial review; procedural infringements; administrative appeals; monism and dualism; and judicial proceedings.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126316970","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Procedure and Judicial Review in Austria 奥地利的行政程序和司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0003
Stefan Storr
{"title":"Administrative Procedure and Judicial Review in Austria","authors":"Stefan Storr","doi":"10.1093/oso/9780198867609.003.0003","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0003","url":null,"abstract":"This chapter discusses administrative procedure and judicial review in Austria. In Austria, there exists a principle of the 'exclusivity of legal sources'. Legal protection is only possible against certain administrative legal sources. In general, Article 130 B-VG pronounces judgments on complaints by the administrative courts against rulings by administrative authorities for unlawful acts; against the exercise of direct administrative power and compulsion to carry out unlawful acts; and on the grounds of breach of the duty to reach a decision by an administrative authority. In principle, the administrative court has to examine the case comprehensively; in general, there is no exclusion for specific administrative matters. It is of fundamental significance for the Austrian administrative judicial system that an administrative court of first instance generally decides on the merits of the case. Only in very exceptional cases does it set aside the contested act by the authority and refer the case back to it.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132128366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Law and the Chinese Legal System: Some Issues on Judicial Review of Administration Activity 行政法与中国法制:行政行为的司法审查若干问题
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0021
Danilo Pappano
{"title":"Administrative Law and the Chinese Legal System: Some Issues on Judicial Review of Administration Activity","authors":"Danilo Pappano","doi":"10.1093/oso/9780198867609.003.0021","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0021","url":null,"abstract":"This chapter explains how, in the current phase of development in the Chinese legal system, administrative law has emerged. China is undergoing a process of subjecting power to the rules which, for administrative law, concern the relationship between state and citizen, and more generally that between state and society. The current evolution is particularly rapid and favoured by changes to the economic structure in recent years, and this explains the fact that administrative law in China is on the eve of great expansion. The chapter examines some theoretical issues relating to judicial review of the exercise of administrative activity, an area which has seen the manifestation of the process of legalization of administrative power, as has happened in Western legal systems. Over the last few years, the development and interpretation of the instruments available has progressed while the availability of instruments has tended to broaden, even if currently legal protection is still in its early stages. However, all this will naturally require a long period of settling, as in Western countries; hence the evident need for gradual change as the fruit of a realistic approach.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"203 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120864226","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Procedure and Judicial Review in Belgium 比利时的行政程序与司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0004
David Renders, Luca Ceci, S. Koval
{"title":"Administrative Procedure and Judicial Review in Belgium","authors":"David Renders, Luca Ceci, S. Koval","doi":"10.1093/oso/9780198867609.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0004","url":null,"abstract":"This chapter evaluates administrative procedure and judicial review in Belgium. The Belgian Constitution embodies, in particular, two constitutional provisions for the judicial oversight of unilateral administrative measures. A Council of State was established pursuant to Article 160 of the Constitution. Under the Act adopted on the basis of this provision, the Council of State is responsible for judicial review, on condition that such review has not been attributed to another ordinary or administrative court. Moreover, Article 159 requires judges not to apply any unilateral administrative measure that would be unlawful in the context of a dispute that they are called upon to settle. All unilateral administrative provisions, whether regulatory or individual, may be reviewed. A procedural error does not necessarily lead to the censure of the unilateral administrative provision in question. However, the breach of a requirement that the administration has to fulfil leads not only to the censure of the provision but can, as the case may be, give rise to compensation.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114523610","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Procedure and Judicial Review in Lithuania 立陶宛的行政程序和司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0012
Agnė Andrijauskaitė
{"title":"Administrative Procedure and Judicial Review in Lithuania","authors":"Agnė Andrijauskaitė","doi":"10.1093/oso/9780198867609.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0012","url":null,"abstract":"This chapter reviews administrative procedure and judicial review in Lithuania. The introduction of administrative justice into the Lithuanian legal system happened against the backdrop of Lithuania's 'unflinching' desire to join the European Union and was meant to strengthen the protection of individual rights and administrative accountability. Two cornerstone acts in this regard, the Law on Public Administration and the Law on Administrative Proceedings (APA), were adopted in 1999. Administrative courts were also established in the same year. Article 3 (1) APA spells out the general rule that administrative courts settle disputes arising in the domain of the public administration. All the acts and measures excluded from the competence of administrative courts are listed in Article 18 APA, which establishes the so-called negative competence of administrative courts. Meanwhile, Article 91 (1) (3) APA provides that the impugned administrative decision may be quashed if 'essential procedural rules intended to ensure objective and reasonable adoption of an administrative decision were breached'.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125388355","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Administrative Procedure and Judicial Review in the United Kingdom 英国的行政程序与司法审查
Judicial Review of Administration in Europe Pub Date : 2021-08-23 DOI: 10.1093/oso/9780198867609.003.0016
S. Nason
{"title":"Administrative Procedure and Judicial Review in the United Kingdom","authors":"S. Nason","doi":"10.1093/oso/9780198867609.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780198867609.003.0016","url":null,"abstract":"This chapter focuses on administrative procedure and judicial review in the United Kingdom. Initially, it should be stressed that administrative law is different across the UK due to devolution. The UK Supreme Court generally acts as a final court of harmonizing case-law principles. As the UK constitution is uncodified, the existence of constitutional provisions concerning judicial review remains somewhat controversial, but the necessity of judicial review is thought to be required by the rule of law. The scope of judicial review is generally governed by judicial precedent. Under section 84 of the Criminal Justice and Courts Act 2015, the High Court must refuse to grant a remedy 'if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred'. In general, there is no right on judicial review to claim damages for losses caused by unlawful administrative actions. It is usually only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review.","PeriodicalId":147116,"journal":{"name":"Judicial Review of Administration in Europe","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114954791","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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