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Register a new userPrevious Controls On Contractual Penalty in administrative contracts )comparative study)
الضوابط السابقة على الجزاء التعاقدي في العقود الإدارية دارسة مقارنة سورية مصر فرنسا
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للإدارة مهمتها الوقائية ممثلة في حفظ النظم وفق ما تعارف عليه في الفقه و القضاء, من خلال الضبط الإداري فهي تمارس أيضا وظيفة جزائية. جوهر التفرقة بينهما يتمثل في أن الأولى تستهدف منع وقوع إخلال بالنظام في حين أن الثانية غايتها توقيع العقاب المستحق على المخالف. بمعنى أن الأولى تواجه الخلل قبل وقوعه في حين يلجأ إلى الثانية بعد حدوث الخلل فعلا.
The administration also has its preventive function represented in keeping the system according to what is familiar with the jurisprudence and the judiciary, through the administrative carries out a penal function. The essence of their distinction is that the former is aimed at preventing disorder, while the second is to punishing violator . In the sense that the first encounter the defect before it occurs while resorting to the second after the occurrence of the defect actually.
References used
الدكتور أمين مصطفى, النظرية العامة لقانون العقوبات الإداري, دار الجامعة الجديدة للنشر بالاسكندرية, 1994.
الدكتور جابر جاد نصار: الوجيز في العقود الإدارية, دار النهضة العربية, 2000.
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The public administration powers means, the legal means
that the administration has in the stage of executing the contract
which would make the contract achieve the purpose for which it was
concluded. When the public administration contracts with
an
individual and becomes a helper, it does not waive nor may it
waive, the rights and privileges of public authority, Enjoy them as
functions exercised under common law.
Administrative contracts are characterized by a fundamental
characteristic, namely, that the contractor performs his own
obligations imposed on him under the contract, The principle of a
person to the contractor, plays a very important role in the field of
administrative contracts due to the strong relation between
administrative contracts and Public utility.
Having the administrative contracts theory recognized the vast
powers of the administrative body against the contractor with; it
also takes into consideration, at the same time, to ensure that the
contractor's rights which are derived from the contract and the
general rules in order to ensure a balance between the administrative
body and the contractor.
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 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.
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