Reflections on the current concept of public subjective rights as a basis for active legitimacy in administrative judicial review
Abstract
This reflection deals with the scope of the concept of public subjective rights as the basis for active legitimacy in administrative judicial review. The starting point is an outline of the concept of public subjective law as it is known to our legal science since the time of § 2 of Act No. 36/1876 Ř. z., on the establishment of an administrative court and well-known articles by Hácha and Hoetzel.
A comparison of this notion with the notions of intérêt digne de protection or schutzwürdiges Interesse (interest worthy of protection) with which the Swiss administrative judicial review operates concludes that a closer understanding of the notion of public subjective law is a matter of everyday judicial practice, not abstract theory. The interpretation therefore further focuses on the most interesting cases from current case law.
The very core of the reflection is the question of whether it is possible to construct a public subjective right to initiate proceedings ex officio, as so far the case law has been largely opposed, although it is possible that it will be substantially changed. This gives rise to a dispute as to whether the addressee of a public administration may have a public subjective right for the public administration to exercise administrative supervision in order to protect its legal sphere.
The author concludes that in some contentious cases access to the administrative court should be extended, both for the good of the addressee of the public administration and for the good of the public administration itself in the interest of its cultivation.