Presentation on theme: "Application of the law LLB. Notion of the application of the law The application of the law is a conventional act of a state authority (court, administrative."— Presentation transcript:
Application of the law LLB
Notion of the application of the law The application of the law is a conventional act of a state authority (court, administrative authority) involving the resolution of specific and individual cases and decision – making (court judgments, administrative decisions) on the legal consequences of proven facts, based on legal norms, on behalf of the state.
Notion of the application of the law The law is also applied by competent public authorities, outside courts and administrative authorities, by the police, the public prosecutor's office, the control authorities and the tax office.
Courts Courts settle cases and administer justice. They generally resolve legal disputes related to the breach of norms by specific entities. They resolve conflicts related to private interests. Sometimes, they only define the rights and duties of entities.
Courts They conduct criminal, civil and commercial proceedings, proceedings on family matters (family courts), labour law matters, social insurance, military issues (military courts), as well as administrative proceedings (administrative courts), etc. They also perform other tasks in terms of legal protection (e.g. registry cases).
Courts Courts are organized in accordance with the principle of instance. Judgments and decisions of courts of first instance can be appealed against in appeal proceedings to the court of the second instance.
Courts Courts pronounces judgments and decisions on behalf of the state. Decisions that cannot be appealed against are final and binding and should be executed.
Courts Courts proceedings in democratic states based on the concept of the rule of the law follow general principles expressed in international conventions (for example the European Convention of Human Rights) and in constitutions.
Courts The „fair trial” in a democratic state are proceedings ensuring that its participants are respected as the subjects of the law while creating the conditions for just decisions. The process is based on the principle of equality before the law and before the court, the right to a reliable court procedure, the right to judgment, contradiction, the indepedence of the judiciary, the openness of proceedings and the principle of two instances.
Public administration authorities Public administration authorities (central and local authority) resolve individual administrative cases. They result in administrative decisions issued on behalf of the state, supported by the state authority and if necessary, forcibly implemented by the respective state authorities (for example a notice of eviction, a decision to issue a driving licence, a decision to issue a concession or a water law permit).
Public administration authorities Administrative proceeding also have two instances. The parties have the right to appeal against the decision pronounced by the first instance to the authority of the next level. Decisions that cannot be appealed against in administrative proceedings are final.
Public administration authorities In democratic states of law, final administrative decisions that are inconsistent with the law can be appealed against to the independent administrative court. Regional administrative courts and the Supreme Administrative Court operate in Poland.
Similarities and differences in the application of the law by courts and administration Irrespective of the many differences, there are also many similarities between the proceedings before the court and the administrative authority.
Similarities Administrative and court proceeding involve at least two instances; the case examination phase includes hearing of evidence – the determination of the actual status in the specific case is based on the principle of material truth, it is necessary to identify the applicable norms enabling the case to be resolved, the fact recognized as proven is subject to qualification into norms,
Similarities Which means a confirmation that the proven fact is one of the cases to which the term „legal norm” applies. Finally, the decision on the application of the law is defined, which can be verified in the second instance. The decision on the application of the law is of an individual nature.
Differences The administrative authority not only makes a decision, but is also usually a „party” to the case, while in the court proceedings the parties are equal, the court is not a party and stands above the parties.
Differences The administration enforces the policies of the state, while the court often exclusively protects private interests.
Differences The administrative authority is managed and supervised by superior authorities, it operates within the structure of organizational and formal subordination – the court is independent and in terms of the judicial decision, is subordinated only to the law.
Differences Administrative proceedings, unlike court proceedings, are not of a contradictory nature (dispute between equal parties before an objective court).
Stages of the process of the application of the law The process of applying the law can be divided into stages, including the definition of the actual status in the specific case, the identification of the legal basis of the decision, qualification of the norm of the actual status, the passing of the final decision and its justification.
The definition of the actual status The definition of the actual status in the specific case requires the hearing of evidence. In principle, evidence is heard during the hearing and sometimes during the proceedings in camera. It consists of three phases: the admission into evidence, the presentation of the evidence and recording the outcome of the hearing of the evidence. The court has a legal obligation to identify the material truth. Facts are the subject of the evidence.
Evidence Evidence conforming the existence of the facts that are material to the case are categorized into personal, originating from people, material and direct evidence(for example an eyewitness and an original document) and indirect evidence (for example a hearsay witness or a copy of the document).
Evidence Exceptionally, if no evidence is available, facts are identified on the basis of circumstantial evidence. Commonly known facts, as well as facts known to the court ex officio, or facts acknowledged by the other party if the acknowledgment does not raise any doubts, do not need to be proved.
Evidence Evidence conforming facts in the case are evaluated in accordance with the principle of the free evaluation of evidence. „Free” does not mean „discretionary”; the judge evaluates it on the basis of regulations and the accepted principles for identifying facts in the science, in accordance with the principle of correct reasoning, recommendation of knowledge and life experience.
Evidence Exceptionally, in states of law, the identification of the actual status is based on the principle of a formal truth (legal evaluation of evidence); the legislator defines principles and rules of the evaluation of specific facts in the regulations and in the specific case and the court is obliged to evaluate the evidence in the manner required by the law.
Evidence Legal presumptions are an example of the identification of the truth in line with the principle of formal truth. These are regulations that require the recognition of the specified facts as proven, based on the proof of other facts, for example presumption of paternity.
Evidence During the hearing evidence, the court considers and simultaneously determines which norms should be applied to the specific case, determines the legal grounds for the decision. Consequently, the court determines their formal validity, conducts legal inference, and interprets the legal regulations. It interprets the law itself, as far as possible taking advantage of the authentic, legal and doctrinal interpretation.
Evidence The key moment in the process of application of the law is qualification of the legal norm of the actual situation in the specific case. It is based on the correct allocation of the identified facts to the appropriate general legal norm, qualification of the given case to the certain type of conduct defined by legal regulations.
Legal syllogism Kind of legal inference. The major premise is formed by the legal norm; the minor premise – by identified facts; the logical conclusion.
„decision margins” The legislator deliberately leaves some margins (the so – called decision margins) in the law, in order to provide the authority applying the law with a certain amount of freedom in defining the content of the decision (vague terms are used in texts, such as „vulnerable person”, „appropriate compensation”, as well as general clauses, such as „principles of correct management”, etc.). Margins are also a result of the natural features of the language of the text.
Syllogistic model and argumentation model Consequently, the syllogistic model of the application of the law is being abandoned in legal doctrine in favour of the argumentation model.
Syllogistic / argumentation model Obviously, the decision in the specific and individual case is always the decision to apply the valid law, but it is stressed that this would not be a „mechanical” deduction of the legal consequences of norms (syllogism).
Syllogistic / argumentation model This is more like finding the best solution and conviction of the optimal, well – argued decision (hence, there is talk of the „argumentation model”), justified by the applied legal regulations, models and values expressed in them, although not reconstructed automatically, but based on a variety of (sometimes controversial) rules of legal reasoning (inference and interpretation).
Syllogistic / argumentation model The authority applying the law is obliged to use all of its methodological techniques not to breach the principles of legal culture in order to ensure that the decision is justifiable on the grounds of the applicable legal regulations. Therefore, the court has significant discretionary power, but is bound by many internal, cultural rules that must be followed. This is because the decision on the application of the law is verified, justified and shold maintain not only the letter, but also the spirit of the law.
The act of applying the law The final decision, the act of applying the law, involves the binding identification of the legal consequences of facts that took place. The authority formulates the specific and individual norm that can have a form of, inter alia, a constitutive decision (changing the legal situation of the subject, dissolution of a marriage by divorce) or declarative decision, conforming rights or duties.
„justified” The decision on the application of the law usually needs to be justified in writing. The justification summarises the outcome of the hearing of the evidence, justifies the selection of the legal ground and recapitulates the reasoning presented and the course of the process of interpreting the law.
Implementation of the decision to apply the law It is possible that the subject (addressee of the decision) voluntarily performs the duties resulting from the decision (voluntarily bears responsibility). This refers to the duties specified in civil – law decisions and administrative decisions, whereas in case of criminal decisions – this applies to fines.
Implementation of the decision to apply the law The subject – despite the decision – does not need to voluntarily fulfil the duty. In such a situation, the state initiates an extensive system of coercion measures, specialized enforcement officers operate. Court enforcement proceedings and court bailiffs are used in civil, commercial and labour law cases. Administrative enforcement authorities, such as tax office, tax collectors and the executor are used in administrative cases. Police, the penitentiary court and the prison administration operate in criminal cases.
Implementation of the decision to apply the law Sometimes the implementation of the decision requires means of coercion (for example placement in a penal institution), then coercion mechanism is also used.