Original scientific paper
https://doi.org/10.31141/zrpfs.2017.54.123.023
Nature of things and Rule of Law
Daniel Giltard
Abstract
The nature of things is an expression which doctrine uses to describe the description of the state of administrative dispute which makes a clear distinction between a dispute of full jurisdiction and a dispute for an evaluation of legality, the division of powers between administration and judge, ban on judges in procedures on evaluation of legality that go beyond quashing. This „nature of things “ is the result of the choice of administrative court policy. For a long time, it has been the dominant trend, right up to the end of the 20th century, in which dispute resolution in general relied on whether it belonged to the administrative matter of one or another of the big categories of disputes. Aim: Rule of Law. In disputes which, taking into account the nature of things, look like they belong to full jurisdiction dispute, a good reason has always existed as to why the judge did not execute full jurisdiction powers: subject expertise, new disputes, damages of minor amounts disputes. In reality, it concerned the opportune choice which justified the historical weight of a lawsuit for an evaluation of legality, favourable instrument in the creation and development of a state of law. I. Nature of things and judicial duty. An important change has occurred since 1995 when the legislator gave the administrative judge power to issue court orders to the administration for implementing enforceable decisions. A- Judicial Duty. The judge is used to taking into account the consequences of his/her decisions on quashing, implementing powers which seem most appropriate for effective dispute resolution given the nature of things. B- Tools adapted to the nature of things. 1. Full jurisdiction dispute represents only one possibility. 2. Quashing due to an evaluation of legality completed with the definition of consequences. Today, the judge has at his/her disposal other tools in the dispute on evaluation of legality and not just to change administrative decisions by his/her judgement. However, together with these tools is putting the claimant before administration to reach a new decision. 3. Opportune choice of full jurisdiction dispute. Some subjects demand shifting to full jurisdiction dispute. In recent court practice we can differentiate two types of solutions which match two different types of claimant demand situations. A) Control of legality and after examining the legal situation. B) Only examining the legal situation.
Keywords
nature of things; administrative court policy; nature of things and judicial duty; tools adapted to the nature of things
Hrčak ID:
175794
URI
Publication date:
23.2.2017.
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