Review of Administrative Acts and Remedies in Administrative Law
Review of Administrative Acts
Automatic Review. Administrative Remedies.
The review of administrative acts starts from an existing administrative act and raises the possibility of its modification or replacement. This can take place either on the administration’s own initiative or at the request of the interested party. We are located at all times within the administrative phase.
Against decisions and procedural measures, if the latter directly or indirectly decide the merits of the case, determines the impossibility of continuing to produce helplessness or loss of rights or legitimate interests, one may find optional replacement and remedy, which will fit within the grounds of nullity or annulment.
The appeal is brought up as a general rule and really comes to replace the hitherto existing ordinary appeal.
The administrative appeal is a discretionary remedy, meaning you may have it or you can go directly to the administrative courts. In principle, it is addressed to the bodies that have no higher authority.
Review of Office
Review of office is the one made by management, without a requirement by interested parties. The purpose is to prevent arbitrary conduct executed by it, which would generate legal insecurity. The Constitution in its Article 9.3 develops this theme, where the law obliges the administration to follow procedures that are essential in character, so that its omission would result in the nullity of the act which it reviews. The official review process was founded on a ground of invalidity.
To declare an act void, the government may provide the same resolution, declaring the nullity and recognizing appropriate compensation to stakeholders. After the deadline for resolving, if no resolution has been passed, it can be understood that this is contrary to the revision of the act.
A review of voidable acts was carried out by the government on its own initiative or upon request, after consulting the council of state or body of the c. The acts are autonomous and declare rights when given these characteristics: that they violate any laws or regulations and that the review procedure was initiated before 4 years from the opinion.
In other cases, the annulment of the declaratory acts rights requires prior notification of harmfulness to the public interest and the previous challenge to the contentious administrative order. The declaration of harmfulness must be taken within 4 years since the issuance of the administrative procedure.
Once the automatic review has started, the court may have jurisdiction to suspend the execution of the act, when it may cause damage that is difficult or impossible to repair.
Article 105 of Law 30/92 says that the government may withdraw at any time their actions, express or suspected, provided that such revocation is not contrary to law. The government will also amend, at any time, ex officio or at the request of stakeholders, material errors in fact or in existing arithmetic.
Article 106 determines that the powers of review may not be exercised when the prescription of actions, by time or other circumstances, exercises it to equity, good faith, the right of individuals, and laws.
Administrative Resources
Administrative resources are created to defend the rights of citizens. It is a remedy against acts and provisions of the administration. Note that administrative actions enjoy a presumption of validity, according to article 57.1 of Law 30/92.
A definition of resource can be: an act by which a person entitled to government requests a review of an administrative decision or, exceptionally, a preparatory act, within the time limits and rules in force. Administrative remedies are three: optional or replacement, sight, and review.
- Gouging: acts that do not end the administrative authority.
- Authority or replacement: acts that end the administrative authority.
- Review: firm against administrative acts.
The person filing shall be made (art110 of the Act):
- The name of the appellant
- The act that is being appealed and the reason for the objection
- Place, date, and signature
- Identification of means
- Body to which it is addressed
And other special requirements.
Finally, the administrative body ruling on the appeal has to issue a resolution, under the rules of Law 30/92 art 113: it considers all or part of the claims, dismissing them or declaring the action inadmissible. When there is no defect, it is considered from a substantive decision to order the feedback of the procedure when the service was committed.
“The outcome of the appeal body will decide how many questions, both in form and substance, raising the procedure whether or not put forward by stakeholders. In the latter case, they are heard previously. However, the resolution will be consistent, but in no case can worsen the initial situation.”
Despite being very theoretical, explaining the resource definition and detailing the three types which, traditionally, are distinguished, I would conclude by saying that since forever, but lately is changing, management decisions, in the words of Abel García Tena and David Rebelo, have an enormous social impact and it is difficult for a citizen to have not ever faced, at some point in their lives, an administrative act in which they have been seen, in one form or another, injured.
“No need to fear those who have another opinion, but those who have another opinion but are too cowardly to express it.” – Napoleon Bonaparte