Organization of State Administration

Posted on Nov 17, 2024 in Law & Jurisprudence

Part 2: The Organization of State Administration

This section examines the management of legal relationships and the subjects of administrative law. Having explored the sources and rules of administrative law, we now analyze the entities to which these rules apply. Public law subjects hold two basic positions due to its reporting-based nature:

  1. Active Subject of Power (Rulers): The entity exercising power.
  2. Passive Subject of Power (Governed/Citizens/Managed): The recipients of administrative actions.

Administrative law governs both active and passive subjects. In contemporary states, rulers exercise power through organized groups, presenting a unified external image. This organized structure operates as a unit, with decisions appearing as singular pronouncements. The organization acts as an autonomous entity, distinct from its members. This is the concept of a legal person. Individuals within the organization act as organs of the legal person. Their actions are attributed to the legal person through the principle of imputation.

In administrative law, we find three basic subject categories:

  1. The Administrator/Citizen: An individual with rights and obligations.
  2. Public Legal Persons: Entities like the state, municipalities, etc.
  3. Organs: Individuals acting on behalf of legal persons (e.g., mayor, minister).

Public Legal Persons

The concept of administration as a legal person was a significant advancement. Historical precedents include Castilian law’s concept of the Crown, a legal person distinct from the monarch, designed to protect royal patrimony. The double personality of the State treasury theory furthered this concept, allowing the state to be subject to legal obligations and judicial enforcement. The organismic theory views legal persons as analogous to natural beings, with various organs fulfilling different functions.

Recognizing the state as a legal person has significant consequences:

  1. Facilitates legal relationships between the state and individuals.
  2. Simplifies interactions with large government entities.
  3. Enhances asset security and the rule of law.
  4. Supports the development of territorial government systems.

Classification of Public Legal Persons

Multiple public legal persons exist (state, municipalities, etc.), each with distinct characteristics. Classifications include:

  1. Public vs. Private Law Persons: This distinction has blurred, with the focus shifting to the specific legal regime applicable to each entity.
  2. Territorial vs. Non-Territorial Entities: Based on the German doctrine of public corporations, this distinguishes entities based on their territorial or functional focus.

Administrative Bodies

The theory of the body explains the relationship between individuals and the legal person. Public officials are not representatives of the state but rather integral parts (organs). The organ comprises a person and their assigned competencies. Actions are attributed to the legal person, not the individual. Imputation can be total (act and effects) or partial (only effects, as in liability cases).

Limitations of imputation include:

  1. The official must act within their jurisdiction.
  2. The act must comply with legal procedures.
  3. The official must be duly invested in their office.

Challenges arise with irregular appointments, temporary illegality, and de facto officials (those assuming public functions without official appointment). The principle of good faith often dictates recognition of actions in the first two cases. De facto official situations are more complex, with imputation generally denied in cases of gross usurpation.

Administrators/Citizens

This concept highlights the relationship between the administration (active subject) and the individual (managed subject). However, this model has limitations:

  1. Legal relationships can involve various entities (legal persons, associations).
  2. Relationships exist between public persons (e.g., regional government and municipality).
  3. Administrative legal relations can occur between individuals (e.g., tax withholding).
  4. Individuals possess powers, duties, guarantees, and constitutional actions against the administration.

Classification of Managed Individuals

Managed individuals are classified as simple or qualified. Simple administrators have a general position, subject to general power relationships. Qualified administrators (e.g., soldiers, public officials, inmates) have a stronger bond with the administration, granting the administration more assertive powers. This distinction aimed to relax the principle of legality for interventions involving qualified administrators, but it has led to concerns about potential abuses.

Managed individuals are also classified by territorial belonging (national or foreign), which impacts their rights and obligations.

Theory of the Legal Relationship in Administration

Legal situations can be active (power) or passive (duty).

Active Legal Situations (Power)

  1. Freedom: A fundamental right, viewed positively (the right to act without restriction) and negatively (protection against interference).
  2. Public Authority: The ability to alter the legal position of others.
  3. Individual Right: The power to require a specific benefit from another party.
  4. Interests: A stake in a particular outcome.

Passive Legal Situations (Duty)

  1. Restraint: The correlative of power.
  2. Obligation: The correlative of individual rights.
  3. Burden: A duty in one’s self-interest, the non-performance of which leads to loss of benefit.

Status of Freedom

Freedom is a fundamental right, present in both public and private law. It encompasses autonomy, contractual freedom, and property rights.

Public Authority

Public authority is the power to alter the legal position of others, even without their consent. It can involve legal or material actions. It is distinct from the power to act, which is the exercise of authority. Public authority is a unilateral power, derived from legal rules, not individual consent.

Parallel Between Authority and Individual Right

Key differences:

  1. Origin: Public authority originates from legal rules, while individual rights can arise from rules, contracts, or administrative acts.
  2. Object: Individual rights have specific objects, while public authority has a generic object.
  3. Interest: Individual rights serve the holder’s interest, while public authority serves third-party interests.
  4. Transferability: Individual rights are generally transferable, while public authority is inalienable.
  5. Prescription: Individual rights can be acquired by adverse possession and extinguished by statute of limitations, while public authority is not subject to these.

Classification of Powers

Powers can be public (attributed to public legal subjects) or private (e.g., parental rights). They can also be specific (clearly defined) or general (broadly described, raising legal certainty concerns).

Regulated Powers and Discretions

Regulated powers have all elements defined by law, while discretionary powers leave elements to the administration’s judgment. Discretion is considered a necessary evil, but it raises concerns about control. Indeterminate legal concepts (e.g., public order, national security) are distinct from discretion. Discretion involves multiple legitimate options, while indeterminate concepts involve classifying a factual situation with a single outcome.

Discretion is controlled through:

  1. Judicial review of regulated elements.
  2. Scrutiny of the power’s purpose (misuse or abuse of power).
  3. Review of determinant facts.
  4. Application of general legal principles.

Legal Rights

Subjective rights have specific objects and determined subjects. They can arise from various sources (legal rules, contracts, harmful acts, administrative acts). They are generally prescriptive and transferable. They exist in both public and private law, with some unique to each sphere.

Interests or Legitimate Interests

Interests are distinct from, yet also a form of, subjective rights. They represent a legal position of power. Legitimate or direct interests arise when administrative action significantly impacts an individual’s legal sphere. This concept emerged in the context of judicial review of administrative acts, allowing individuals to challenge acts based on interests, even without direct infringement of rights. The doctrine considers interests as reactionary rights, arising from administrative harm. Two elements are necessary for a reactionary right:

  1. An illegal act by the administration.
  2. Damage or injury.

Classification of Interests

Interests can be individual or collective. Collective interests pose challenges, as their defense traditionally fell to public bodies. However, the social state model recognizes the right of private entities (especially associations) to defend collective interests in administrative and judicial procedures.

Passive Duty Situations

  1. Restraint: The correlative of power.
  2. Obligation: The correlative of subjective rights.
  3. Burden: Involves a duty in one’s self-interest, the non-performance of which leads to loss of benefit (e.g., burden of proof).

Public Duty

Public duty is a complex and ambiguous concept. It is distinct from obligation. Obligations are concrete and specific, serving a particular subject’s interest. Public duties are abstract and generic, serving the general interest. Examples include compulsory military service and voting.

Mixed Situations

Some situations involve both active and passive elements, such as the status of public officials, which encompasses a set of rights, duties, and sometimes public powers.

Administrative Organization

Administrative organization involves structuring the administration based on legal principles and specific systems. Key aspects include:

  1. Legal principles governing administrative organization.
  2. Administrative systems.
  3. Administrative organization in Chile.

Legal Principles of Administrative Organization

These principles structure state bodies. They include:

  1. Legality: State bodies exist and act only as authorized by law.
  2. Competence: Bodies must act within their defined powers.
  3. Unity: Achieved through hierarchy and supervision.

Principle of Legality

Article 6 and 7 of the Constitution establish this principle. State bodies are artificial creations of law. The principle of legality governs both the existence and actions of the administration.

Principle of Competence

Legal persons act through organs, which comprise a natural person and their defined competencies. Competence is determined by:

  1. Matter: The set of tasks entrusted to the body.
  2. Territory: The spatial domain of the body’s authority.
  3. Degree: The body’s position within the administrative hierarchy.

Principle of Unity

Article 5 of Law 18,575 establishes this principle. Unity is achieved through hierarchy (centralized systems) and supervision (decentralized systems).

Hierarchy

Hierarchy involves a relationship of power and obedience between superior and subordinate bodies. It ensures unity of action. The superior has powers of command, legislation, sanction, appointment, removal, direction, and control. Subordinates have a duty of obedience, but it is relative (they can refuse illegal orders). The superior can review and invalidate acts for legality or expediency. They also handle hierarchical appeals and jurisdictional disputes.

Supervision

Supervision is the control exercised by state agents over decentralized bodies. It ensures compliance with the law, prevents abuses, and protects the national interest. The intensity of supervision determines the degree of decentralization (real or fictitious). Supervision also coordinates between decentralized bodies.

Administrative Systems

Administrative systems structure the relationships between bodies and legal persons. They are classified as:

  1. Centralization.
  2. Decentralization (political or administrative).