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Register a new userControl of Administrative Judiciary on decision of administration by penal cancellation of administrative contract (comparative study)
رقابة القضاء الإداري على قرار الإدارة بالفسخ الجزائي للعقد الإداري (دراسة مقارنة)
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Aِl-Baath University ورقة بحثية
Publication date
2017
fields
Law
and research's language is
العربية
Authors
حسام فيصل( باحث )
Created by
Shamra Editor
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نتعرض في هذا البحث لتحديد القضاء الإداري المختص بالرقابة على قرار الفسخ الجزائي للعقد الإداري (أولا), و بيان نطاق تلك الرقابة (ثانيا), وصولا لتحديد ما للقضاء الإداري من سلطات في مواجهة قرار الفسخ الجزائي للعقد في حالة عدم مشروعيته (ثالثا).
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).
References used
د.جورج شفيق ساري القرارات القابللة للانفصال في العقد الإداري دار . النهضة العربية القاهرة, عام 2002.
حكم المحكمة الإدارية العليا رقم (117)- القضية رقم 50 لعام 1987.
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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.
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.
It gives the public law of the administrative powers the permit to
carry out a series of actions to ensure the satisfaction of public needs,
thereby achieving the public need. Generally, these acts of
administrative and business are the availability of public power element
which clearly shows the composition of the administrative decision and
the administrative contract.
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 .
In this research, we examined the
nature of these contracts. The research dealt with its concept and the
reasons for the emergence of this type of contract, which is not very
different from the traditional contracts in terms of its structure,
method of conclusion and methods of implementation and proof.
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