Ideové základy správního soudnictví

In the introductory part of his article Vladimír Mikule wrote about ideological problems of administrative judiciary. First, he deals with the relationship between public power and an individual in ancient time and the medieval ages and with the development towards sovereign absolutism and the police state. Criticism of despotism and its ideas by John Locke is an initial part of Mikule’s comments on theories about the division of powers and material functions of a state as a basic of the Middle European concept of a legal state. The author especially concentrates on the principle of legality in public administration, as it was expressed by some Austrian, German and French lawyers; he deals with the distinction between private and public law and with the division of judiciary and administration. The next part describes the concept of “administrative judiciary”. It appears to be an expression covering various phenomena, although all of them have the same principal objective to ensure an effective protection of the subjective public rights of an individual. Thus, administrative judiciary is used in connection with “judicialized” administrative proceedings, with deciding legal matters by special bodies where a lay or civic element is directly applied, and also with the performance of special bodies established within the administration (French type). Administrative judiciary can also be considered a decision-making activity of special tribunals (separated from “regular” courts), or, in contrast, the activity of regular courts (in that case it is important whether the court acts within general civil procedure, or whether the judicial review of administrative decisions is regulated separately, as it is now in the Czech Republic). The author creates a special category for the Italian type od administrative judiciary based on so-called double jurisdiction. The third part describes the history of administrative judiciary in totalitarian states in the 20th century. The situation in nazi Germany and fascist Italy as well as in the Soviet Union and its satellite countries is characterized. Finally, the author mentions the significance of international documents on human rights for the development of the system of legal control and protection, and analyses the principles of lawful regulation of public administration and judicial protection against it, as it is stated in constitutional regulations in the Czech Republic, namely the Bill of Fundamental Rights and Freedoms. The author presents some initiatives de lege ferenda in relation to establishing the Supreme Administrative Court, and he expresses his firm conviction that persevering, competent and efficient administrative judiciary, recognized by the administration due to its formal and informal authority, could be very effective through its mere existence if it were a part of a wide and complex system of combined operations directed towards one objective, which is enforcement and protection of a legal order.