Transcript AdmInistrative Law (part I)

ADMINISTRATIVE LAW
(PART I)
Class: 2
PUBLIC ADMINISTRATION
1. Public administration plays various roles in the
contemporary society:
- the most important are implementing laws and
policies and acting as their adjudicators.
2. Hence, it is important to study public administration
with an open mind and without prejudices to
appreciate the full nature, role, importance and
relevance of the administration.
THE HISTORY OF PUBLIC ADMINISTRATION
1.
Public administration has a very long history: it is traced back to
the ancient and medieval times.
2.
There has been a considerable shift in the way the public
administration was carried out in ancient and medieval times
when the initiatives were nothing more than sporadic
administrative functions like maintaining law and order and
collecting revenues with little or no welfare activities.
3.
The people who carried out those activities were selected by
the monarchs and were no better than their personal servants.
PUBLIC ADMINISTRATION:
• According
to Jan Boć ”Public administration is understood to be overtaken by
the state and realized by its pending bodies and also by the bodies of the local
self-government fulfilling collective and individual needs of citizens, resulting
from the people’s coexistence in communities”.
• Under
the negative definition public administration is everything that is not
legislative power or administration of justice (read about the principle of the
distribution of authority in Montesquieu's division).
• Public
power.
administration is an operational instrument in the hands of a political
Basic definitions of public administration
• The
positive definition of public administration. This definition
stresses those elements that perform administrative function. The
main element of public administration, in accordance with this
definition, is public interest which identifies the structure of the
subjects which perform the administration.
• Subjective definition of public administration. This definition takes
the perspective of the subjects of public administration in order to
define those bodies that exercise administration and the nature of
their structure.
• Polish scientist Franciszek Longchamps thought that the term
public administration is linked with the administrative law.
ETYMOLOGY OF THE WORD ’ADMINISTRATION’
1.
2.
3.
4.
The word administration is etymologically linked to the Latin word
ministrare, strenghtened by the preposition ad-, meaning 'to
serve’.
Above mentioned word minister and ministrations also confirm
'servant’ aspect of the derivates of ministrare.
The word ministrare linked with the word administro, administrare,
means to serve, conduct or manage.
Due to this etymology administration always means a certain
service of executive activity, carried out with respect to somebody
and/or something more important or decisive. It is also an
instrument serving to achieve a goal and/or to execute a will of a
superior.
Features of public administration
it is a social phenomenon (all of its other features stem from this fact),
regulates social coexistence,
3. acts on behalf of and on account of the state or the local self-governing
community,
4. has a political nature (the principle of political booty developed in the
USA)
5. always acts as a non-profit entity. Even if it conducts profit-oriented
activities (managements), these do not constitue its main purpose but
they are rather an idinrect pursuit of the public interest,
6. performs public tasks,
7. it is always characterized by its purposelfulness action and initiative,
8. employs mainly professional personel (clerical staff).
1.
2.
Classification of public administration in reference
to its function
1.
Regulatory administration (classical administration) – is realized by issuing
administrative decisions and other administrative acts.
2.
Servicing administration – it is not connected with a regulatory activity, is an
activity conducted without the direct use of authority (empowered
intervention). Examples of such activities include running a registry, public
rallies, informative and organizational activities, social assistance, social help
and aid in natural disasters.
3.
Managaments of the administration conducting owner and managing their
rights of public administration. This type of administration is connected
primarily with changes with the political system in the 1990 s and the phasing
out of socialist state and free market rules. Administration conducts the
owner’s rights of the State Treasury, which comprises mostly public property
under diffrent forms (partnerships, agencies and other bodies).
Public administration vs. private administration
1.
Business (private) administration is the process of managing a
business or non-profit organization so that it remains stable
and continues to grow. This consists of a number of areas,
ranging from operations to management.
2.
There are many different roles related to business
administration, including business support, office manager,
and Chief Executive Officer, among others.
3.
Most companies have a dedicated group of administrators.
Public administration vs. private administration
How similar are they?
How different are they?
According to Paul H. Appleby the public administration is
different from private administration in three important
aspects:
1.
political character,
2.
the breadth of scope,
3.
impact and consideration and public accountability.
These differences seem to be very fundamental and valid.
Peter Drucker sums up differences between public and
private administration in more comprehensive manner:
He says that the very intuition which governs both kinds of
administration is different from each other. While the public
administration functions on service intuition the private
administration follows the business intuition. They also have
different purposes to serve, with different needs, values and
objectives. Both of them make different kind of contribution
to the society as well. The way the performance and results
are measured is different in a public administration than that
of private one.
Similarities between public and private administration
1.
2.
3.
4.
5.
6.
the managerial aspects of planning, organizing, coordinating
and controlling are the same for public and private
administration
the accounting aspects like maintenance of accounts, filing,
statistics and stocking are the same
both of them have a hierarchical chain of command or
reporting as the organizational structure
both get influenced, adopt and reform their own practices in
the light of best practices of the other.
they share the same pool of manpower
they share similar kinds of personnel and financial problems .
Similarities between public administration
and private administration
1.
Authors like H. Fayol, M. P. Follet, L. Urvick didn’t treat
private and public administration as different.
2.
H. Fayol wrote that all kinds of administration function
on some general principle irrespective of them being
public or private.
3.
The planning, organizing, commanding and controlling
are similar for all administrations.
ADM. LAW AND PUBLIC ADM.
1.
Public (administrative) law and public administration are always linked.
2.
Adm. law istn’t the law of public administration.
3.
The link between public administration and law consist in the
submission of all executive power, and public administration operating
therewithin, to the law.
4.
Public administration is an instrument of implementation of provisions
of the statues and other sources of law.
5.
Above mentioned idea is connected with the prinicple of legality, which
means that each action of administration must have a legal basis – the
stricter the legal basis, the most intensive the administrative
intervention in rights of the administered.
PUBLIC ADM. AND ADM. LAW IN POLAND:
1.
2.
3.
Polish public administration is nowadays quite converged with
European public administration (as a result of the process of its
transformation and integration with the European Union).
Polish public administration remains quite specific in its
administrative and organizational arrangements and structures.
The specifity of Polish public administration has arised from the
pre-war traditions and their continuation in the present sociopolitical system in Poland (after the year 1989).
Not only Polish public administration has it own specific
arrangements. Domestic administrations in EU Member States also
have their own specific organizational systems of public offices and
public bodies.
The following changes (after the year 1989) have shaped Polish
public administration:
1.
Radical introduction (legislation of March – May, 1990) of the territorial selfgovernment at the municipality level, which meant total abandoning of the
”orthodox” socialist principle of the unity of state power,
2.
Reconstruction, according to the expriences of the liberal democracies, of the
”centre of Government” (legislation of 1996-1997, including the laws on the
Council of Ministers and on the branches of governmental administration),
3.
New territorial division of the state (modelled on the relevant division shaped
before 1939) and introduction of the self-government in newly created units,
districts and voivodships (regions/provinces), with a modification of the role of
voivods in these new conditions (legislation of 1998, which came into effect
on the 1st of January, 1999);
5.
6.
7.
8.
9.
Harmonistation of the Polish law, in particular numerous
pieces of administrative-law legislation, with the law of
European Union;
Adopting legislation on access to public information
(2001);
Introduction of single, directly elected, executives of
municipalities instead of traditional boards elected by
respective councils (2002);
Introduction of two-instance system of administrative
courts (with the effect since 1st January, 2004);
Accession Poland to the European Union (1st May 2004).
SELECTED THEORETICAL INSTITUTIONS
OF ADM. LAW
1. Legal administrative situation:
 Administrative law shaped the legal status of
a person, natural or legal,
and of other units which are not legal entities administrated by the
State.
2. Legal administrative relationship:
Legal administrative relationship is a legal relation.
In legal theory legal administrative relation is considered as a situation,
in which one subject has an obligation (duty) to behave towards another
(the obligation exists due to a norm in force).
LEGAL ADMINISTRATIVE RELATIONSHIP
 According to F. Longchamps legal relation forms
when the subjective law has such meaning for two
subjects that under certain conditions, the legal
situation of one subject is combined in some way with
the status of the other. When the subjective law is
also admin based, we deal with it as an administrative
legal relationship.
Elements of legal administrative relationship
1) subjects (actors or entities) of the administrative relationship
(e.g., administrative authorities, parties and other
participants),
2) objects of the administrative relationship (demeanour of the
entities), and
3) content of administrative relations (rights and duties of the
entities).
Legal administrative relationship
Administrative authority conducting the proceedings
Administrative power
Administrative and legal situation
OBLIGATION / RIGHT
Party to the proceeding
(natural person, legal person, imperfected artificial person)
Legal administrative relationship
1. In administrative legal relationship public administrative
body acting in a particular legal relationship may
simultaneously posses and exercise the dominant state
power.
2. So, in administrative legal relationship parties don’t have
equal legal status.
3. This feature of administrative legal relationship
distinguishes this relationships from civil ones.
Subjects of the administrative legal relationship:
public administration body
Public administration body can be defined as:
1. a person or a group of people in case of a collective organ,
2. being in the organizational structure of the state or in a local self-governing body,
3. appointed in order to realize administrative norms in the manner and results
appropriate for that law,
4. acting within the granted legal competences.
(due to the definition given by J. Boć)
 A public administration body is always an individual person or a group of people.
 Until a certain person / group of people will be appoinment for the office of a public
administration body we can only think about the set of competences which are related
to the office of a public administration body.
ESTABLISHING A LEGAL ADM. RELATIONSHIP
1. Ex lege:
- it takes place, for example, on the basis of tax statues, traffic on
roads, use of public appliances and other things,
- it is not necessary for public administration to issue an additional
administrative act (decision).
2. Ex actu (through adm. acts or decisions):
- is established by unilateral and authoritarian statement (act in law) of
adm. organ.
- the most common methos of establishing adm. relationship.
3. Through other legal acts:
- it may takes place due to other such legal events as:
- entering into relationship via a party claim for a specified behaviour
on the part of the administrative organ, and
- entering into a relationship through an action (not an act of law), such
as when a police oficer stops a vehicle.
3. Adm. power:
 this term is linked to the term sanction,
 it is possible to use the power of state control (coercive measures) to
secure fulfillment of an obligation included in administrative law,
 the common aim of administrative power is preserving the superiority
of public authorities so that they may effectively carry out their tasks.
Thank you for your attention!
The presentation is based on:
1. Administrative law and Policy of the European Union, Hoffman
H.C.H. , Rowe G.C., Türk A., Oxford University Press 2012.
2. Duniewska Z., Administrative law, [in:] Introduction to Polish law,
Wyrozumska A., (ed.), Łódź 2005.
3. Metzler E.L., The Growth and Development of Administrative. Law,
avaiable at:
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3
911&context=mulr
4. Możdzeń-Marcinkowski M., Introduction to Polish administrative
law, Second revised edition, C.H. Beck, Warszawa 2012.