Subjective Legal Situations in Administrative Law

Posted on May 12, 2024 in Law & Jurisprudence

Parties’ Subjective Legal Situation

A) Active Power Situations

Freedom

The situation of freedom has two defining aspects:

• Positive: The delimitation of the norm of a functional area or set of activities inherent in the personality of a subject in which it can act without constraint.
• Negative: The situation of freedom involves the general prohibition of immission or disturbance of such possibility of action.

The technical concept of freedom must be carefully differentiated from other related figures:

• This concept is not identical to that of freedom as one of the “higher values” of the legal system.
• It is different from concepts of power and subjective law.
• It is also different from the concept of public freedoms, fundamental rights, or public rights recognized constitutionally.

The subjective legal situations of freedom exist both in the field of public law and in private law. Typical of the latter is the so-called autonomy or contractual freedom.

Power

a) Concept and Characters

By power, we mean that position of authority that enables the holder to impose behavior on others through the creation, modification, or termination of legal relations or by modifying the physical state of affairs. Its hallmarks are:

• Power always has its origin in a rule of law, which gives the subject ownership of it, usually emanating from the subjective right of a particular legal relationship, but can also be granted directly by statute and even created by the power of exercising a subjective right.
• The exercise of a subjective right has a specific object, concrete and determined, and its content is performing a specific and concrete behavior.
• It is also due to one or more passive subjects.
• The personal right is in a position of power that leads to meeting an iterator of his own head; as a result, its content is freely editable by the owner, and even renunciable.
• The legal right is, by nature, transmissible to others, except those of a personal nature. By contrast, power is inalienable by the holder; by any individual under certain conditions, the exercise may be transferred.
• Its mere legal right is usually susceptible to adverse possession and extinctive.

b) The Different Types of Powers

Authority is capable of so few elements that classifications are the same.

The distinction between public and private powers is distinguished. Powers, as authoritarian powers to intervene in the legal field of others, are usually publicly owned. There are still some powers in private hands: most of them are inherent in the commanding position held by certain people within the private sector, but the unique phenomenon of regulatory authority inherent in the collective bargaining right of labor has also been noted.

By their way of attribution, powers can be classified into hetero-attributed powers and conferred powers, as they have been created and awarded by a body or entity other than the owner or consignee or created for the same reason.

Addressed the way manifestation can be distinguished, with the powers expressed, implied, or inherent powers, that is, without being stated explicitly in the rule of attribution, can reasonably be inferred from it by a systematic interpretation or runner which would give it coherence.

Because of its scope, specific powers have to be considered generic or general competition clauses. The allocation of powers and the rule must be assessed concretely, by specifying in the greatest detail possible the power and authority in general terms that are acceptable. These consist under two conditions:

• They are formally established by law.
• It is not admissible in general terms the existence of implicit powers, based on an alleged “nature of things” in a purported or “normal” or “natural” Administration that is not possible or desirable degree of accuracy above normal in the definition of the terms of seizure.

c) In Particular, the Distinction Aware Regulated and Discretionary Powers

The issue of discretion is one of the central issues of all public law. The delimitation of regulated and discretionary is simple. By attributing a power, the law may set conditions in full of exercise, so that their use is checked in an almost automatic process.

Discretion is not generally a feature that can be predicated of a power, but some of its elements or exercise conditions. In any discretionary power to call, there are elements and others that are regulated. The elements of all authority regulated are always the fact of their existence, the factual situation that entitles it to use, competition, and the end of the power.

Discretion is not the product of the recognition of an area of freedom to the Administration but the consequence aware of a reference standard. Discretion is to be understood as the result of a deliberate decision.

Discretion, as a conscious decision of the legislature, should not be confused under any circumstances with the degree of indeterminacy of legal concepts. Today, doctrine and jurisprudence are unanimous in recognizing that discretion and indeterminate concepts are made different, although the government may make an initial determination of the existence or otherwise of the concept; this assessment may be revised and replaced by a judge or Tribunal.

The discretion of the creation of an area of law relating indifference: the indifference is not total; the decision taken must always respect the basic constitutional principles that determine the administrative and general principles themselves.

The use of discretionary powers is fully capable of control, which may take place at three levels:

• Through the judicial control of the regulated elements, together with discretionary power.
• Control up to the decisive facts, i.e., the existence and reality of the event made to enable the use of background check power.
• Background check of the discretionary decision by the general principles of law, a technique that represents a quantum leap over the previous capital. This form of control squarely into the untouchable realm of discretionary decision, whose legality can not be contracted with a written rule, but with the unwritten rules which are general principles of law.

The Legal Right

a) Concept and Character

The subjective right may have its origin in a rule, in the exercise of a power or a particular legal relationship, has a specific purpose and specific, and its content is the realization of a concrete and specific also conduct required of a passive subject, is a position of power that leads to the satisfaction of an interest of its own owner.

There are three details to mention:

• Individual rights exist in the field of administrative law.
• These rights are structurally very similar to typical private individual rights, while no other parallel in private traffic.
• Constitutional rights or subjective public rights do not exhaust all rights to claim against the Administration, which form but a subset.

b) The Different Types of Subjective Rights

Rights are susceptible to multiple classifications based on various elements of the peculiarities of their legal status. The most important:

By reason of its owner, one can distinguish the individual rights of the Administration and administered. The sole purpose is to remember that not only managed, but public authorities have subjective rights.

Because of their backgrounds, individual rights can be directly attributed by a rule of law, born of contracts or harmful acts, or arise from administrative acts in the exercise of power.

Reason content rights can be classified into three types:

• Obligational or credit rights, in fall, with the most typical and common, so-called performance rights or obtain benefits and services of public services and some of the constitutional rights whose main content is the right to make no real Administration.
• Real rights both the Administration and the administered.
• Participation rights confer the power to intervene in the public organization or participate in the process of constitution of its organs well integrated into them, either by starting their own benefit activity.

c) The Subjective Rights or Legitimate Interests Reactional

Administrative law is often mentioned as a legitimate interest. His words, simultaneous and alternative to the subjective right, seem to imply that it is a legal status distinct from it, although less consistent.

The origin of this concept lies in the peculiar evolution of the administrative proceedings has had on countries that adopted the French model of administrative control of legality. To be regulated this way in his rise to civil rights as a process, leaving outside its scope all violations of the rules that are not attributes of subjective rights, which prevented individuals to initiate actions based on these infractions.

The form to resolve this apparent mess has been the denial of the individuality of interest, which is not an autonomous status, but an atypical form of subjective right, which is described as a reactive subjective right. There are differences between individual rights and individual rights reactional typical:

• These are titles of power that exist before an eventual conflict, and whose content is also default.
• The reactional rights are not born but at the moment and as a result of the conflict that is also determines the content material.

Legitimate interests are subject to a fundamental classification, collection in recent times by our legislation, depending on whether or colectivos.En individual interests as individual interests, because classic respond to interest rate, it is those cases where the administrative action directly affect the legal rights of a person, considered as a individualidad.

Collective interests provide a major issue. In the ideological framework of the liberal state, the defense of all the interests that transcend the individual level of each of the citizens understand natural and exclusive jurisdiction of public institutions.

B) The Duty or Passive Situations

Subjection

Subjection is the passive counterpart of the authority, consisting of a duty to support the exercise of power over their own legal matters. It is a static condition, a member of a legal situation status.

The Legal Obligation

The legal obligation is the legal requirement to perform a particular behavior, do or not do, that the regulatory system provides the benefit or utility a third person, who holds the power to require.

Charging

Status has a profile called load somewhat hybrid between the situations of power and duty: is the legal necessity of performing a specific behavior. The charge usually carries positive behavior; the legal compulsion to do the above behavior is set in its own interest in the subject on which figure weighs.

The charge stemmed from procedural law. The burden is very common in the legal sector as procedimentalizado as administrative law; such charges are in an administrative hearing to be held by interested, the request for extension of deadlines, or appeals.

The Public Duty

The characterization of public duties is usually made based on three circumstances:

the obligation has a specific and concrete content, while the conduct or activity that is the duty is described in the abstract and genéricola obligation tends to serve the interest of a particular subject, while the conduct of public duty is imposed in the public interest or obligation colectividadla corresponds to an individual right which is owned by another person, compensation that is not in the public duty.