Administrative Action and Procedures in Comparative Law / Vincenzo De Falco.

Format:

Book

Author/Creator:

De Falco, Vincenzo, 1965- author.

Series:

Comparative public law treatise (Series)

Comparative Public Law Treatise Series

Language:

English

Subjects (All):

Comparative law.

Physical Description:

1 online resource (281 pages)

Edition:

First edition.

Place of Publication:

The Hague, The Netherlands : Eleven International Publishing, [2018]

Summary:

This volume analyzes the evolution of the main elements of administrative procedures through a methodology that overcomes the established observations within each legal tradition.The author identifies the role played by subjective legal positions in the formation of the rules on procedures, and examines the primary characteristics thereof.

Contents:

Intro

Prologue Notes

Table of Contents

1 Methodological Profiles

1.1 Legal Traditions and Methodological Problems

1.1.1 The Distinctions in Common Law

1.1.2 Administrative Action in the Civil Law Tradition

1.2 The Activity - Procedure Symbiosis

1.2.1 The Legal Sources of Proceedings

1.2.2 Legal Families and Method Clarifications

1.3 Administrative Functions and the Crisis of Classical Methodology

1.3.1 The Force of Legality and the Rule of Law

1.4 The Influence of Community Principles

1.5 International Convergence Factors

1.6 The Search for Procedural Models

2 The Power of Principles

2.1 Basic Elements of the Comparative Analysis

2.2 The Origins in the Austrian Experience

2.2.1 The First Procedural Rules

2.3 The Principles of Administrative Action in France

2.3.1 The Development of the erreur manifeste d'apprèciation

2.3.2 Limits to Executive Power and Codification

2.4 Rule of Law and the Anglo-Saxon Experience

2.4.1 Controlling Administrative Power in English Juridical Thinking

2.4.2 Natural Justice and Fairness

2.5 Rights and Privileges in the United States

2.5.1 The Genesis of Rights in Rulemaking

2.5.2 Administrative Procedure Act and Due Process of Law

2.6 Administrative Power and Procedural Rules in Germany

2.6.1 The Crisis of Authority and the Centrality of an Administrative Act

2.6.2 Proceedings and Legitimatisation of Power

2.7 The Composite System in Italy

2.7.1 The Theoretical Setting

2.7.2 Evolution of Principles

2.8 The Spanish Experience

2.8.1 The Positivistic Approach

2.8.2 Rights in Proceedings

2.9 The Diffusion of the Spanish System in Latin America

2.9.1 The Evolutionary Context in Argentina

2.9.2 The Strong Inquisitorial Characterisation

2.9.3 The Spreading of the Principles.

2.9.4 The Influence of Common Law in Colombia

2.9.4.1 Case Law and Procedural Principles

2.9.4.2 The Binding Force of the Unification Rulings by the Consejo de Estado

2.10 The New Tendencies of Central-Eastern Europe

2.10.1 The Extended Coding

2.10.2 The Espansion of the Austrian Approach

3 Access and Transparency

3.1 Secrecy and Disclosure in Administrative Action. The Models

3.1.1 The Transition Towards Transparency

3.1.2 The Hidden Differences

3.2 The Open Government Model

3.2.1 The Nordic System and the Internal Acts

3.2.2 Transparency the United States

3.2.3 Evolution and Divergences with the Swedish System

3.2.4 Procedural Aspects

3.2.5 Balancing Test and Elements in Regression

3.3 The Reserved Access Model

3.3.1 Forms in Expansion: A Comparison between the Germany and United Kingdom Experiences

3.3.2 The Innovative Tendency in Spain

3.3.3 Right of Access and Transparency: The Italian Case

3.3.4 Latin America and Central Europe Experiences

3.4 Assonance and Applicative Problems: The Relationship with the Discretionary Power

3.5 Spreading of Models and Synchronic Perspectives

4 Participation and Right to Defence

4.1 Investigation within Administrative Action

4.2 The French Experience

4.2.1 Rights and Interests in Proceedings

4.2.2 Débat public and enquêtes publiques

4.3 Hearing in United Kingdom

4.3.1 The Flexibility of Natural Justice

4.3.2 The Expansion of Participation Rights

4.3.3 Freedom of Procedural Forms

4.4 Right to Defence and Formal Adjudication in the United States

4.4.1 Informal Procedure and Balancing Test

4.4.2 Rulemaking and Participation

4.5 The Regulatory Framework in Germany

4.6 The Spreading of the Right to Defence in Proceedings

4.6.1 Procedural Guarantees in Comparative Law.

4.6.2 Investigation and Discretionary Power

4.7 The Models

5 The Duty to Give Reasons

5.1 The Apparent Convergences

5.2 The Link between Participation and Duty to Give Reasons in France

5.2.1 Features and Soft Formalism

5.3 The German Juridical Thinking

5.4 The Evolution of Substantial Elements in Italy

5.5 The Spanish Approach and Its Influence in Latin America

5.6 Fairness and Duty to Give Reasons in the English System

5.7 The Characteristics in the United States

5.8 Discordances in Diachronic Analysis: Three Models in Transformation

6 Limits to Discretionary Power

6.1 Logic and Administrative Action

6.1.1 Wednesbury and Soft Unreasonableness

6.1.2 The Australian Variable

6.2 The Proportionality

6.2.1 Cogency and Proportional Action in Italy and France

6.2.2 The Different Implementation in the United Kingdom

6.2.3 The American Exception

6.2.3.1 Logic and Balancing Test in Adjudication Procedures

6.2.4 The Idea of Proportionality in Latin America

6.3 The Links between Reasonableness, Proportionality and Impartiality

6.3.1 Bias and Logic in the Anglo-American Experience

6.4 The Principle of Good Faith and the Strengthening of Legal Positions

6.4.1 Withdrawal of Acts and Legitimate Expectation in Germany

6.4.2 The Spreading in the European Context

6.4.3 Procedural Expectation. The Spanish Case

6.4.4 The Soft Reception in France

6.4.5 The Problematic Application in Italy

6.4.6 Estoppel and Legitimate Expectation in Great Britain

6.4.7 The Conservative Approach in the Anglo-American Experience

6.4.8 Self-Restraint in Australia

6.4.9 The Expansion in Spanish American Countries

7 Administrative Inertia and Procedural Delay

7.1 The Times of the Administrative Action

7.2 The Inertia as a Mere Fact

7.2.1 Characteristics of the English Experience.

7.2.2 Administrative Delay in the United States

7.3 The Legal Effects of Silence. Rejection in the French Experience

7.4 Different Approaches in Spain and Italy

7.5 The Complexity of the Tacit Consent

7.6 Administrative Procedures for Tacit Acts in Latin America

7.7 Applicative Problems in Central-Eastern Europe and Evolutionary Tendencies

8 Administrative Action and Procedural Models

8.1 Classification Elements

8.2 The Narrow Investigation Model

8.2.1 Characteristics and Distinctive Traits in the Civil Law Tradition

8.2.2 The Flexible Intensity in Common Law

8.3 The Open Investigation Model

8.3.1 Distinctive Profiles

8.3.2 The American Experience between Crisis and Innovation

8.3.3 New Tendencies in Spain

8.3.4 Rulemaking and Participation in Latin America

8.3.5 Consensus and Administrative Action in Japan. The Evolutionism of Soft Law.

Notes:

Description based on print version record.

Description based on publisher supplied metadata and other sources.

ISBN:

94-6274-847-0

9789462748477

OCLC:

1124610073