监管机构与法院之间的冲突与协议:对监管治理的影响

IF 2.7 4区 管理学 Q2 PUBLIC ADMINISTRATION
Jeovan Silva, Tomas Aquino Guimaraes
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引用次数: 0

摘要

关于监管机构运作及其与政府行政部门相互作用的文献已经建立。对这些机构和法院之间的关系的关注要少得多,特别是在对监管机构的决定进行司法审查的情况下。本文考察了监管决定的司法审查如何在监管机构和法院之间产生冲突和协议,以及这些关系对监管治理的影响。该研究在巴西进行,共采访了21人,包括6个联邦监管机构的8名官员,5个机构的7名律师和6名联邦法官。监管治理、制度理论和监管重叠是本研究的主要分析框架。对数据进行内容分析。研究结果表明,司法审查在法院和监管机构之间的重叠范围中起着重要作用。监管治理的制度细节对监管机构的运作至关重要。尽管存在这些冲突,但法官们寻求与监管机构进行更多的协调,因为他们对监管政策的细节有了更深入的了解。监管机构的律师在监管机构和法院之间的对话中发挥着关键作用,特别是通过弥合技术协议和法律协议之间的差距。监管诉讼为强大的经济主体提供了成功缴纳罚款的机会,从而削弱了监管机构执行监管的能力。司法审查是监管机构与法院之间唯一的协调机制,在制定监管政策和控制行政行为方面发挥着至关重要的作用。在司法审查过程中,监管机构面临着不确定性,这些不确定性标志着国家行为者和当局在处理监管时所扮演的角色之间的界限模糊。通过研究巴西的案例,这项研究揭示了监管治理,并探讨了司法机构与正式独立的监管机构之间的权力平衡。研究结果表明,在监管机构越来越多地被要求对高度敏感的公共问题做出重要的技术和社会选择的背景下,监管机构与法院之间进行更密切对话的价值。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Clashes and agreements between regulatory agencies and courts: The influence on regulatory governance
Literature on the operation of regulatory agencies and their interactions with the executive branch of government is well established. Much less attention has been devoted to the relationship between these agencies and the courts, especially in case of judicial review of regulators’ decisions. This paper examines how judicial review of regulatory decisions produces clashes and agreements between regulatory agencies and the courts, and the influence of these relationships on regulatory governance. The research was conducted in Brazil with 21 interviews, consisting of eight officials of six federal regulatory agencies, seven attorneys from five agencies, and six federal judges. Regulatory governance, institutional theory, and regulatory overlap were the main analytical frameworks for this research. Data was subjected to content analysis. The findings showed that judicial review plays an important role in the overlapping scopes between courts and regulatory agencies. The institutional details of regulatory governance are crucial for the regulatory bodies to function. Despite the conflicts, judges seek more coordination with regulators, because of a greater awareness of the specifics of regulatory policies. Attorneys of regulatory bodies perform a key role in the dialogue between regulators and courts, especially by bridging the gap between technical and legal protocols. Regulatory litigation provides powerful economic agents with the opportunity to obtain a successful remittance of fines, thereby diluting the regulators’ ability to enforce regulation. Points for practitioners Judicial review is the only coordinating mechanism between regulatory agencies and the courts and plays a crucial role in defining regulatory policies and in controlling administrative behavior. In the process of judicial review, regulatory bodies confront the uncertainties that mark the blurred boundaries between the roles performed by state actors and authorities in dealing with regulation. By examining the Brazilian case, the research sheds light on regulatory governance and deals with the balance of power between the judiciary and formally independent regulatory bodies. The findings indicate the value of closer dialogue between regulators and courts in a context where regulatory agencies are increasingly called upon to make important technical and social choices on highly sensitive public issues.
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来源期刊
CiteScore
6.10
自引率
4.30%
发文量
0
期刊介绍: IRAS is an international peer-reviewed journal devoted to academic and professional public administration. Founded in 1927 it is the oldest scholarly public administration journal specifically focused on comparative and international topics. IRAS seeks to shape the future agenda of public administration around the world by encouraging reflection on international comparisons, new techniques and approaches, the dialogue between academics and practitioners, and debates about the future of the field itself.
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