Әкімшілік құқық: мемлекеттік органдар қызметін реттеу

Branch of law governing administrative agencies

Administrative law is a division of law governing the activities of executive branch agencies of government. Administrative law includes executive branch rule making (executive branch rules are generally referred to as "regulations"), adjudication, and the enforcement of laws. Administrative law is considered a branch of public law. Administrative law deals with the decision making of such administrative units of government that are part of the executive branch in such areas as international trade, manufacturing, the environment, taxation, broadcasting, immigration, and transport. Administrative law expanded greatly during the 20th century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction. Civil law countries often have specialized administrative courts that review these decisions. In the last fifty years, administrative law, in many countries of the civil law tradition, has opened itself to the influence of rules posed by supranational legal orders, in which judicial principles have a strong importance: it has led, for one, to changes in some traditional concepts of the administrative law model, as has happened with the public procurements or with judicial control of administrative activity and, for another, has built a supranational or international public administration, as in the environmental sector or with reference to education, for which, within the United Nations' system, it has been possible to assist to a further increase of administrative structure devoted to coordinate the States' activity in that sector.

Unlike most common law jurisdictions, most civil law jurisdictions have specialized courts or sections to deal with administrative cases that as a rule apply procedural rules that are specifically designed for such cases and distinct from those applied in private law proceedings, such as contract or tort claims.

In Brazil, administrative cases are typically heard either by the Federal Courts (in matters concerning the Federal Union) or by the Public Treasury divisions of State Courts (in matters concerning the States). In 1998 a constitutional reform led by the government of President Fernando Henrique Cardoso introduced regulatory agencies as a part of the executive branch. Since 1988, Brazilian administrative law has been strongly influenced by the judicial interpretations of the constitutional principles of public administration (Art. 37 of Federal Constitution): legality, impersonality, publicity of administrative acts, morality and efficiency.

In Chile the President of the Republic exercises the administrative function, in collaboration with several ministries or other authorities with ministerial rank. Each ministry has one or more under secretaries that act through public service to meet public needs. There is no single specialized court to deal with actions against the administrative entities, but there are several specialized courts and procedures of review.

In Germany, administrative law (Verwaltungsrecht) has been differentiated from other branches of public law by scholars, courts, and legislators, since the late 19th century; the precise delimitations of the term, however, are in contention (which is especially relevant because German legal scholarship uses a terminological approach to conceptualizing the law). Administrative law defines all aspects of public administration in the modern German state. German legal scholarship does not have an agreed upon definition for public administration. All that is administration, and is thus subject to administrative law, might be deemed to extend to all state activity of a certain type (material definition of public administration). Where the parliament imposes a fine on one of its members for misbehavior, or a presiding judge directs a disruptive member of the public to be removed from the viewing gallery, the question arises whether to treat these acts of public authority as acts of administration (and therefore executive in nature), even though they are performed by component parts of the state (that is to say, the government) that the law formally classifies as a legislative or a judicial body, respectively. The opposite approach – the formalist definition of public administration – begins its examination by considering all those public authorities intended (judging by their lawful charter, organizational context, internal structure, and performed tasks) to do the work of public administration, and equates their functioning with public administration. There is some danger of circular reasoning, since the formal categorization of the organizational unit may in turn derive from some material conception of its function. Some functions that might, in the material view, be seen as not of the executive type, and thus not as belonging to the field of administration (such as the creation of rules with the force of law, which are usually thought of as legislative), would then be held to the standards of administrative law, and not another field of law. This discussion is of seen as being of particular importance when considering the role of administrative law in maintaining the division of government powers. A traditional, negative approach tries to define administration by subtracting those operations of the state which cannot be called administration, namely law making and adjudication. Using this negative definition, though, requires law making and adjudication to be defined first, and leaves some activities that are a poor fit for the term "administration", such as the cabinet government's political leadership decisions, within the bounds of the definition. Positive definitions abound, but none has won out over the others, or been entirely convincing to scholars of German administrative law. Nonetheless, certain features may be seen as being charactersitic of administration: According to Maurer and Waldhoff, administration is social engineering (exerting influence on the non state, societal domain) oriented towards some conception of the (ever changing) public interest; it consists of taking action in the present, with a view to engineering the future; and it is the taking of concrete measures to regulate individual cases and to realize particular plans. Administrative law, then, determines the organizational pre conditions, the action and forms of action, and the completion of which duties and the fulfillment of which purposes will determine the face of public administration. German scholarship on administrative law usually presents its description of Germany's body of rules for public administration in two parts: General doctrines of administrative law (allgemeines Verwaltungsrecht), and doctrines pertaining to particulate fields of administrative law (besonderes Verwaltungsrecht).

The Law on Administrative Procedure (VwVfG) was enacted in 1977, where it regulates the main administrative procedures of the federal government. The VwVfG contains the regulations for mass processes and gives legal power against the authorities. The VwVfG applies for public administrative activities of federal agencies as well as federal state authorities—in where federal laws are made. Paragraph 35 of the VwVfG defines the administrative act as the most common form of action in which the public administration occurs against a citizen. It states that an administration act is characterized by the following features:

It is an official act of an authority in the field of public law to resolve an individual case with effect to the outside. Paragraph 36–39, 58–59, and 80 show the organization and structure of the administrative act. Paragraphs 48 and 49 state the prerequisites for redemption of an unlawful administration act (§ 48) and withdrawal of a lawful administration act (§ 49 VwVfG).

Administration procedural law (Verwaltungsgerichtsordnung [VwGO]), which was enacted in 1960, rules the court procedures at the administrative court. The VwGO is divided into five parts, which are the constitution of the courts, action, remedies and retrial, costs and enforcement15 and final clauses and temporary arrangements. In absence of a rule, the VwGO is supplemented by the code of civil procedure (Zivilprozessordnung [ZPO]) and the judicature act (Gerichtsverfassungsgesetz [GVG]). In addition to the regulation of the administrative procedure, the VwVfG also constitutes the legal protection in administrative law beyond the court procedure. § 68 VwVGO rules the preliminary proceeding, called "Vorverfahren" or "Widerspruchsverfahren", which is a stringent prerequisite for the administrative procedure, if an action for rescission or a writ of mandamus against an authority is aimed. The preliminary proceeding gives each citizen, feeling unlawfully mistreated by an authority, the possibility to object and to force a review of an administrative act without going to court. The prerequisites to open the public law remedy are listed in § 40 I VwGO. Therefore, it is necessary to have the existence of a conflict in public law without any constitutional aspects and no assignment to another jurisdiction. The social security code (Sozialgesetzbuch [SGB]) and the general fiscal law are less important for the administrative law. They supplement the VwVfG and the VwGO in the fields of taxation and social legislation, such as social welfare or financial support for students (BaFöG) etc.

In Italy administrative law is known as Diritto amministrativo, a branch of public law whose rules govern the organization of the public administration and the activities of the pursuit of the public interest of the public administration and the relationship between this and the citizens. Its genesis is related to the principle of division of powers of the State. The administrative power, originally called "executive", is to organize resources and people whose function is devolved to achieve the public interest objectives as defined by the law.

In the Netherlands administrative law provisions are usually contained in the various laws about public services and regulations. There is however also a single General Administrative Law Act (Algemene wet bestuursrecht or Awb), which is a rather good sample of procedural laws in Europe. It applies both to the making of administrative decisions and the judicial review of these decisions in courts. Another act about judicial procedures in general is the Algemene termijnenwet (General time provisions act), with general provisions about time schedules in procedures. On the basis of the Awb, citizens can oppose a decision (besluit) made by an administrative agency (bestuursorgaan) within the administration and apply for judicial review in courts if unsuccessful. Before going to court, citizens must usually first object to the decision with the administrative body who made it. This is called bezwaar. This procedure allows for the administrative body to correct possible mistakes themselves and is used to filter cases before going to court. Sometimes, instead of bezwaar, a different system is used called administratief beroep (administrative appeal). The difference with bezwaar is that administratief beroep is filed with a different administrative body, usually a higher ranking one, than the administrative body that made the primary decision. Administratief beroep is available only if the law on which the primary decision is based specifically provides for it. An example involves objecting to a traffic ticket with the district attorney (officier van justitie), after which the decision can be appealed in court. Unlike France or Germany, there are no special administrative courts of first instance in the Netherlands, but regular courts have an administrative "chamber" which specializes in administrative appeals. The courts of appeal in administrative cases however are specialized depending on the case, but most administrative appeals end up in the judicial section of the Council of State (Raad van State).

In Sweden, there is a system of administrative courts that considers only administrative law cases, and is completely separate from the system of general courts. This system has three tiers, with 12 county administrative courts (förvaltningsrätt) as the first tier, four administrative courts of appeal (kammarrätt) as the second tier, and the Supreme Administrative Court of Sweden (Högsta Förvaltningsdomstolen) as the third tier. Migration cases are handled in a two tier system, effectively within the system general administrative courts. Three of the administrative courts serve as migration courts (migrationsdomstol) with the Administrative Court of Appeal in Stockholm serving as the Migration Court of Appeal (Migrationsöverdomstolen).

In Taiwan the recently enacted Constitutional Procedure Act (憲法訴訟法) in 2019 (former Constitutional Interpretation Procedure Act, 1993), the Justices of the Constitutional Court of Judicial Yuan of Taiwan is in charge of judicial interpretation. As of 2019, this council has made 757 interpretations.

In Turkey, the lawsuits against the acts and actions of the national or local governments and public bodies are handled by administrative courts which are the main administrative courts. The decisions of the administrative courts are checked by the Regional Administrative Courts and Council of State. Council of State as a court of last resort is exactly similar to Conseil d'État in France.

Administrative law in Ukraine is a homogeneous legal substance isolated in a system of jurisprudence characterized as: (1) a branch of law; (2) a science; (3) a discipline.

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so called semi public bodies, such as non profit corporations, disciplinary boards, and other decision making bodies that affect the legal rights of members of a particular group or entity. While administrative decision making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decisions is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries. The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is unreasonable (under Canadian law, following the rejection of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v New Brunswick), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U. S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts, namely legitimate expectation and proportionality. The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain common law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.

In the United States, many government agencies are organized under the executive branch of government, although a few are part of the judicial or legislative branches. In the federal government, the executive branch, led by the president, controls the federal executive departments, which are led by secretaries who are members of the United States Cabinet. The many independent agencies of the United States government created by statutes enacted by Congress exist outside of the federal executive departments but are still part of the executive branch. Congress has also created some special judicial bodies known as Article I tribunals to handle some areas of administrative law. The actions of executive agencies and independent agencies are the main focus of American administrative law. In response to the rapid creation of new independent agencies in the early twentieth century (see discussion below), Congress enacted the Administrative Procedure Act (APA) in 1946. Many of the independent agencies operate as miniature versions of the tripartite federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the United States Constitution sets no limits on this tripartite authority of administrative agencies, Congress enacted the APA to establish fair administrative law procedures to comply with the constitutional requirements of due process. Agency procedures are drawn from four sources of authority: the APA, organic statutes, agency rules, and informal agency practice. It is important to note, though, that agencies can only act within their congressionally delegated authority, and must comply with the requirements of the APA. At state level the first version of the Model State Administrative Procedure Act was promulgated and published in 1946 by the Uniform Law Commission (ULC), in which year the Federal Administrative Procedure Act was drafted. It is incorporated basic principles with only enough elaboration of detail to support essential features, therefore it is a "model", and not a "uniform", act. A model act is needed because state administrative law in the states is not uniform, and there are a variety of approaches used in the various states. Later it was modified in 1961 and 1981. The present version is the 2010 Model State Administrative Procedure Act (MSAPA) which maintains the continuity with earlier ones. The reason of the revision is that, in the past two decades state legislatures, dissatisfied with agency rule making and adjudication, have enacted statutes that modify administrative adjudication and rule making procedure. The American Bar Association's official journal concerning administrative law is the Administrative Law Review, a quarterly publication that is managed and edited by students at the Washington College of Law.

The agricultural sector is one of the most heavily regulated sectors in the U. S. economy, as it is regulated in various ways at the international, federal, state, and local levels. Consequently, administrative law is a significant component of the discipline of agricultural law. The United States Department of Agriculture and its myriad agencies such as the Agricultural Marketing Service are the primary sources of regulatory activity, although other administrative bodies such as the Environmental Protection Agency play a significant regulatory role as well.