The foundations of administrative Law ― From the French concept of service public to Herrschaft and German administrative law ―

서지정보

· 발행기관 : 강원대학교 비교법학연구소
· 수록지 정보 : 강원법학 / 42권 / 1 ~ 24페이지
· 저자명 : Spyridon Flogaitis

초록

The development of administrative law in Europe started with the Napoleonic reforms and the establishment of a powerful administration governed by Law. That administration would, however, follow a special regime of public law and its action would be exonerated from the realm of the ordinary courts; the action of public administration should only be subject to adjudication organized within public administration, and especially by the Conseil d’Etat. In accordance with the developments which took place in France in the century that followed, public administration was composed of services publics, and served as a democratic raison d’être of the State. It was German theory which introduced yet another element to this way of thinking; Herrschaft, meaning ‘the public power’, was a way of thinking which, in its turn, influenced French legal thought through the writings of Maurice Hauriou.
The decision of the Tribunal des Conflits, Mlle Blanco introduced the idea that jurisdictional competence is the result of the nature of the case (“la competence suit le fond”). Since the decision Blanco, theory and practice fed and developed the idea that there was a system behind all this after all, a matrix idea, according to which public law is of a special nature and thus requires a special judge; this judge will either be designated by the law or presumed by the judge himself.
The tradition of understanding public administration as exclusive to the realm of public law was subject to drastic change shortly after the end of the First World War, in 1921.This was thanks to the decision of the Tribunal des Conflits, Société commerciale de l’Ouest-Africain, known also as the decision Bac d’Eloca. Rather than negating the character of public service of the ferryboat activity, instead, it reaffirmed it. It also declared that an activity of public administration - a public service - could be organized and function under private law. From that time forward, public law would not have a monopoly in public administration, because public administration, - in other words the public services - could equally be organized under private law. The exception acquired equal status to the general principle.
However, the main characteristic of public administration according to Hauriou and his School of thought, is the “regime administratif”, which is composed of the administrative power (“pouvoir administratif”), the objective of this administrative power, the administrative function (“accomplissement de la fonction administrative”), and a method, the administrative operation (“l’entreprise de la gestion administrative”). The idea was coming from Germany.
After the 19th century, foundations of a strong state underpinned German legal science due, in large part, to positivism and the so-called Dogmatik. These were served by very important, world-renown figures of legal science. The Administrative Procedure Act 1977 was a major event for German public law scholarship and practice for obvious reasons, and influenced the many other legal systems of Europe and beyond. Most importantly, in the long years of its preparation, it lent fresh possibilities to German administrative law, allowing it to mature and, simultaneously, to gather considerable pace in the new era into which Germany was entering, so painfully. The American idea of having codified the fundamentals of administrative action took on a new shape, and this time, it was European.

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