1 The definition Administrative Law Ultra vires Procedural fairness Public Interest Administrative Procedures Administrative Procedures Administrative procedures are a set or system of rules that gove[.]
1 The definition: - Administrative Law - Ultra vires - Procedural fairness - Public Interest - Administrative Procedures Administrative Procedures Administrative procedures are a set or system of rules that govern the procedures for managing an organization These procedures are meant to establish efficiency, consistency, responsibility, and accountability The Importance of Administrative Procedures Administrative procedures are important because they provide an objective set of rules by which an organization is governed They also help establish the legitimacy of management action by ensuring the application of management rules and decisions is done in an objective, fair, and consistent manner Finally, they help ensure that managers are held accountable for decisions that deviate from the procedures The situation we discussed when talking about the principle that: "An administrative violation is sanctioned only once" Article Interpretation of terms In this Law, the terms below are construed as follows: Administrative violation is a faulty act which is committed by an individual or organization in violation of the state management law but does not constitute a crime and, therefore, must be administratively sanctioned in accordance with law Sanctioning of an administrative violation means that a person with sanctioning competence imposes a sanction(s) on and applies a remedial measure(s) to an administrative violator in accordance with the law on sanctioning of administrative violations Administrative handling measure is a measure applicable to an individual who commit a violation of the law on security, order and social safety which does not constitute a crime These measures include education in commune, ward or township; consignment to reformatory; consignment to compulsory education institution, and consignment to compulsory detoxification establishment 4 Measure in substitution for administrative violation handling is an educational measure to be applied in substitution for an administrative sanction or administrative handling measure against juvenile administrative violators These measures include admonition and management at home Recidivism means that an individual or organization that has been handled for an administrative violation and after completely executing the sanctioning decision or decision on application of an administrative handling measure or after the statute of limitations for execution of such decision expires, re-commit the same violation, while the duration upon the expiration of which he/she/it will be regarded as having never been administratively handled has not expired Repeated administrative violation means a case in which an individual or organization repeats an administrative violation which he/she/it has previously committed without having been handled while the statute of limitations for handling such violation has not expired Organized administrative violation means that an individual or organization colludes with another individual or organization to jointly commit an administrative violation License or practice certificate is a paper granted by a competent state agency or person to an individual or organization in accordance with law so that the latter can business, operate, practice a profession or use a tool or means Licenses and practice certificates not include business registration certificates and certificates linked with the personal backgrounds of holders not for the purpose of practice licensing Place of residence is a home, facility or another house used by a citizen for his/her residence Places of residence may be owned by citizens, or leased or lent by agencies, organizations or individuals to citizens or allowed to be used by citizens for residence 10 Organization is a state agency, political organization, socio-political organization, socio-politicoprofessional organization, social organization, socio-professional organization, economic organization, people’s armed forces unit or another organization which is established in accordance with law 11 Emergency is a circumstance in which an individual or organization that, for the purpose of warding off a practical threat to the interests of the State or another organization, his/her/its own or another party’s legitimate interests, has no choice but to cause a damage smaller than the damage to be prevented 12 Legitimate defense is an act of an individual who, for the purpose of protecting the interests of the State or an organization, his/her own or another person’s rights and legitimate interests, fights in a necessary manner against a person who is committing an act of infringing upon such rights and interests 13 Unexpected event is an event in which an individual or organization cannot foresee or is not obliged to foresee consequences of his/her/its act which is dangerous to the society 14 Force majeure event is an event which occurs objectively and is unforeseeable and irresistible despite the exercise of all necessary measures and capabilities 15 Person having no administrative liability capacity is a person who commits an administrative violation while suffering mental illness or another disease which deprives him/her of the ability to perceive or control his/her acts 16 Drug addict is a habitual user of a narcotic, habit-forming or psychotropic drug who is dependent on such drug 17 Lawful representatives include parents or guardian, lawyer and legal aid provider Administrative violation means an administrative agency has taken a final action finding that an individual, or a legal entity that the individual is part of, violated a regulation of that administrative agency Topic: Analysis of administrative sanction principles: "The sanction of administrative violations shall be conducted for only administrative violations regulated by the law An act of administrative violation shall be sanctioned only once If many persons commit the same act of administrative violation, each of violators shall be sanctioned If a person commits many acts of administrative violation, or administrative violation in many times he/she shall be sanctioned for each act of violation." Take for example An administrative violation can only be recorded and issued a sanctioning decision once In case the violation has been recorded in writing but the sanctioning decision has not been issued yet, but the individual or organization fails to comply with the request or order of the person with sanctioning competence, still intentionally commits such violation , the person with sanctioning competence must apply measures to prevent and ensure appropriate handling of administrative violations in order to terminate the violations When making sanctioning decisions for such acts, persons with sanctioning competence may apply additional aggravating circumstances or impose penalties for acts of failing to comply with requests and orders of persons with sanctioning competence and sanction for violations that have been recorded but have not yet issued sanctioning decisions In case a violation has been issued with a sanctioning decision but the violating individual or organization has not yet implemented or is executing the decision and then continues to commit such violation, this violation considered a new violation Thus, with the provisions of Decree 81/2013/NĐ-CP then, if an administrative violation has been recorded and sanctioned but has not yet been complied with or is being executed but continues to violate, that violation will be determined as a new act and will be recorded administrative violations, sanction according to regulations Example: Mr Nguyen Van A participating in traffic without wearing a helmet was administratively sanctioned by the traffic police but did not keep the vehicle, then Mr A continued to participate in traffic when he met the traffic police and asked Stopping the car to present documents, Mr A reported that he had just been fined, but the traffic police continued to punish Mr A for not wearing a helmet Because this is considered a new violation, a record of administrative violations will be made and sanctioned according to regulations The different between administrative law and constitutional law? Definition Administrative Law The establishment and administration of government entities are governed by administrative law It defines the authorities of administrative agencies, the substantive regulations they create, and the legal relationships that bind them to other government organizations and the general public Definition Constitutional Law Constitutional law deals with the powers, rights, and liberties established by a legally passed constitution or a charter It comprises the powers of the several branches of the government and the rights of the people Difference between Administrative Law and Constitutional Law In his seminal work, Ill-Assorted Musings about Regulatory Takings and Constitutional Law, Maurice J Holland emphasizes that the main difference between constitutional law and administrative law is that constitutional law governs the legislative and executive branches, but administrative law governs their operations In his magnum opus, The British Constitution, Ivor Jennings believes that administrative law is concerned with the organization, functions, powers, and responsibilities of administrative authorities On the other hand, he opines that constitutional law is concerned with the broad principles; guiding the structure and powers of the various state organs and their relationship with the citizens Another difference between constitutional law and administrative law is that in countries with a written constitution, constitutional law is derived from the constitution However, administrative law is derived from legislation, administrative regulations, executive decrees, circulars, letters of instruction, conventions, etc Constitutional Law Administrative Law The ultimate law of any nation-state is constitutional Administrative law is ancillary to the ultimate law law Deals with the actual functioning of the organs of the State It has a wide scope and deals with the powers of the It has a narrow scope and only deals with the State, general principles of governance, and the powers and functioning of the administrative relationship between the citizens and the State bodies It is codified into a single text in countries with a It is not codified There might be hundreds of written constitution thousands of administrative laws Administrative law defines its legal roles and Constitutional law establishes an administrative body limitations Therefore, it can be seen as the action arm of constitutional law Deals with the organs of the State and its structure According to Prof S P Sathe, administrative law is a subset of constitutional law, and all administrative law concerns are constitutional law issues As a result, constitutional law has a broad scope, with a plethora of administrative laws accounting for a sizable component of it This is the difference between administrative law and constitutional law FAQs on Difference Between Administrative Law and Constitutional Law Q.1 Why is it difficult to entirely differentiate between administrative law and constitutional law in a country like India? In India, constitutional laws, directly or indirectly, limit the powers of administrative entities It scrutinizes administrative acts Therefore, it becomes difficult to completely separate administrative law from constitutional law in a society with a codified constitution and judicial review Q.2 Does administrative law and constitutional law belong to different watertight compartments? No Some scholars have pointed out that there exists a zone of overlapping between constitutional law and administrative law Here, constitutional law deals with the operation part- organization, functions, powers, and responsibilities of administrative authorities Examples: Articles 32, 136, 227, 262, 263, 267, 280, and 311 of the Constitution of India Q.3 From where does administrative law derive its authority? Administrative law is derived from different sources in different countries The sources of administrative law in the United States are statutes, common law, executive orders, etc In England, the sources of administrative law are statutes, precedent, subordinate legislation, etc However, in India, constitutional law is the most important source of administrative law, among others like executive orders, delegated legislation, ordinances, judicial pronouncements, etc Q.4 What is the relationship between administrative law and judicial review? In some ways, judicial review of administrative action is central to administrative law It decides whether the administrative laws are congruent with constitutional law Therefore, judicial review is part of the basic structure of the Constitution of India However, some are concerned that excessive judicial scrutiny will weaken the administrative law and jeopardize the constitutional principle of separation of powers The different between administrative law and labour law?