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Register a new userThe criteria for distinguishing administrative decision in the jurisprudence and the judiciary A Comparative Study (Syria, Egypt, France)
معايير تمييز القرار الإداري في الفقه و القضاء دراسة مقارنة (سوريا, مصر, فرنسا)
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كان للانتقال إلى مبدأ فصل السلطات بمفهومه النسبي أثر واضح في تحقيق الخلط بين الأعمال القانونية لسلطات الدولة, فكان لا بد من البحث عن معيار واضح يحدد الطبيعة القانونية لتلك الأعمال, خاصة و أنها تتمايز من حيث النظام القانوني الذي يحكمها. و تبرز أهمية هذا المعيار في تمييز القرارات الإدارية عن غيرها من الأعمال الأخرى التي تأتيها سلطات الدولة كأداة فعالة بيد الإدارة لممارسة سلطتها في مواجهة الأفراد, كونها تخضع لرقابة القضاء من جهة, و تعد قابلة للإلغاء و التعديل من قبل الإدارة من جهة أخرى, إضافة لمسؤولية الدولة عما تلحقه تلك الأعمال من ضرر بالأفراد, فيترجح الفقه و القضاء في ذلك بين معيارين, و إن رجح أحدهما على الآخر, لذا يهدف هذا البحث إلى تبيان المعيار المستخدم في تمييز القرار الإداري عن غيره من الأعمال القانونية, و موقف الفقه و القضاء السوري المصري و الفرنسي من ذلك.
The move to the principle of separation of powers in its relative meaning has a clear impact in achieving the confusion between the legal works of the state authorities. Therefore, it was necessary to search for clear criteria to identify the legal nature for those works, especially that they differ in terms of the legal system governing them. These criteria are important in distinguishing the administrative decisions form the other works which the state authorities do, especially that they are an effective tool within the hand of the administration in the face of individuals being subject to the judicial control on the one hand, and that they are liable to be canceled and modified by the administration on the other hand. In addition, the state is responsible for the harm caused by these acts to individuals. The jurisprudence and the judiciary are swinging between the two criteria even if one of them overshadows the other. This research aims to demonstrate the criteria used in distinguishing the administrative decision from the other legal works, as well as the standpoint of the Syrian, Egyptian and French jurisprudence and judiciary regarding this issue.
References used
حسين عثمان. القانون الإداري ( أعمال الغدارة العامة). الدار الجامعية , مصر, 1990.
محمد فؤاد عبد الباسط. القرار الإداري. دار الفكر الجامعي, مصر, دون عام طباعة.
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The trend of taking the dual judiciary system and the emergence of the administrative
judiciary ، specialist to look at the administrative disputes، did not prevent the normal
judiciary to exercise its role in the protection and preservation of the
principle of legality
and its control over the illegal resolutions and such limited control over the control of
abstinence preclude the contribution of the normal judiciary in the application of illegal
text ، and the late application of the legal text and justice .
The administrative judiciary is specialized with halting the
implementation of the defected administration resolutions with
unlawfulness to provide protection for people who are subject to
these resolutions. However such protection requires the av
ailability
of several conditions which are required by the administrative
judiciary lest prohibiting any abuse in halting the implementation of
the administration resolutions, or disabling them without
reasonable cause. As this research will introduce and discuss the
concept of these conditions and their influence on halting the
implementation.
In this research, we will define competent administrative judiciary
for control on decision of penal cancellation of administrative
contract (at first) and clarifying span of control (at second), until
reaching to define of what administrative judiciary has powers
against decision of penal cancellation of contract in case of its
illegality (at third).
This study aims at identifying the differences between Syrian commercial public and
private banks regarding the role of client's creditworthiness criteria and their relative
importance in the credit decision-making process, in addition to recognizi
ng the
differences in empowerment between bank's branches in credit decision.
To achieve the objectives of the study, a questionnaire is designed to cover the
creditworthiness fields according to 5Cs model, which includes (Character- Capability –
Capital – Collateral- and Condition). A Descriptive approach is used where hypotheses are
tested by Independent Sample T-test from SPSS.
The results showed that all 5Cs criteria are important in the credit decision- making
process, but their importance differs among private and public commercial banks except
for the collateral, where private banks place more weight to this criterion. Both types of
banks have a high degree of centralization regarding credit decision, and restrict the power
of their branches in dealing with lending files.
Law's general principles play a significant role which cannot be
denied in the field of the efficacy of judicial surveillance over
administrative resolutions issued on the administration's past. In this research we will illustrate its role in the f
ield of controlling
administrative resolution in terms of the cause factor which it is one of the components of internal legitimacy of resolution.
Undoubtedly the role of general principles is gaining greatness
in the case of the absence or shortcoming of texts, where the judge
tends to fill in the gaps by inventing public legal rules which
complement the legal construction and bridge the gaps, and figure
out the necessary solution for the dispute at land.
As for the factor or the motive for resolution issuance, the most
important legal principles set by administrative law are embodied in
the principle of the announcement of the reasons for the
administrative resolution and the principle requiring that every
administrative resolution has its cause which justifies in a truthful
manner, namely, in reality and in terms of the law.
The principles operate in the case where the legislator fails to
mention the event - events which emerge as cause - causes that
motivate the resolution taken, and where he fails to mention the
need for announcing it within the administrative resolution taken.
The resolution is regarded as legitimate in the case of their
existence either in the events or the legal teats, or illegitimate in the
case of their absence or efficacy. The illegitimacy is here manifested
in the as well law's general principles.
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