Browsing by Author "Kmieciak, Zbigniew"
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Item EUROPEJSKIE STANDARDY PRAWA I POSTĘPOWANIA ADMINISTRACYJNEGO A USTALENIA ORZECZNICTWA NACZELNEGO SĄDU ADMINISTRACYJNEGO(Wydział Prawa i Administracji UAM, 1998) Kmieciak, ZbigniewItem ROZSTRZYGANIE SPORÓW POMIĘDZY JEDNOSTKĄ I ADMINISTRACJA˛ W SYSTEMACH COMMON LAW (REFLEKSJE NA KANWIE KSIĄŻKI SARY BLAKE ADMINISTRATIVE LAW IN CANADA)(Wydział Prawa i Administracji UAM, 2012) Kmieciak, ZbigniewThe paper presents issues that are the main subject of Sara Blake’s ‘Administrative Law in Canada.’ Sara Blake has practiced general civil litigation since 1997. She is a lawyer with the Ontario Ministry of the Attorney General, Crown Law Office – Civil Law, where she acts for the government ministries and agencies in appeals, civil actions, applications for judicial review and tribunal hearings. In her opinion: ‘Administrative law is the law that governs how these decisions are made in individual cases’ (p. 4). Therefore, her book concerns the proceedings before administrative tribunals and a review of their actions. The book is divided into two parts. The first part (chapters 2 to 5) describes the rules according to which tribunals are expected to operate. The generic term ‘tribunal’ is used to include all public officials, boards and agencies who exercise statutory authority. The second part (chapters 6 to 9) explains the types of redress that are available and how they may be obtained. Tribunals belong to the administrative, not the judicial, arm of government, even though at times they may appear to be remarkably court-like. The specific kind of tribunals (the appellate tribunals) may, and do, engage in review of the merits of a decision and usually have the powers to vary, or substitute with another, the decision of the original decision-maker. Except to the extent authorised by statute, members of adjudicative tribunals should be independent of those who appoint them and pay their salaries. Only in that way can they adjudicate each case free from interference. However, as Sara Blake underlines, ‘There is no constitutional right to a hearing before independent and impartial tribunal’. In her view, the test for independence of judges, which has a constitutional basis, cannot apply to tribunals, ‘which are creatures of statute and operate as part of government’. Administrative tribunals cannot be as independent as judges because ‘tribunals are established to implement and, often, to make government policy’ (p. 107). The requirement for independence was developed in the adjudicative context of the courts. It cannot be strictly applied to a policy-making context, said Sara Blake. The author of this paper is of the opinion that the idea of external review by independent but non-judicial bodies opens promising perspectives for the development of administrative law also in Poland.Item Umowa cywilnoprawna i porozumienie administracyjne jako formy działania organów administracji w sferze zarządzania gospodarką państwową(Wydział Prawa i Administracji UAM, 1987) Kmieciak, ZbigniewThe realization of the management tasks by the administrative agencies in conditions of a decentralized model of the economy requires the tools adjusted to the wide range of self-dependence of enterprises. The instruments which undoubtedly meet the above requirements are a civil law contract and an administrative agreement. The author has carried out the analysis of the said acts defining their characteristic features and pointing out to the differences between the two insruments. According to the author, common features of both acts are relatively equal status of participants (parties) and their unanimous expression of the will to conclude an act on cooperation. In the author's opinion, the law in force seems to point out to the tendency of a further development of a civil law contract and an administrative agreement as forms of the administrative agencies' activity in the management of the state economy. He indicates that the appearance of new types of bilateral acts and the transformation of the traditional ones is a natural course for the evolution of legal forms of the administrative activity. He stresses the need to work out a consistent conception, expressed in legal norms, of applying those acts by the administrative agencies. He presented some elements of such a conception and formulated some postulates as to the future law. Finally, he is against an excessively detailed legal regulation of the said instruments.