PAPERS ASSOCIATED TO THE ADMINISTRATIVE ACTS AND LEGAL UNILATERAL WILL IN THE FRAME OF THE ADMINISTRATIVE DECISIONAL MECHANISM

PAPERS ASSOCIATED TO THE ADMINISTRATIVE ACTS AND LEGAL UNILATERAL WILL IN THE FRAME OF THE ADMINISTRATIVE DECISIONAL MECHANISM PhD. student Dumitru Ştefan COMAN1 Abstract Administrative acts’ related problems are widely analyzed in the specialty doctrine, in the context where this one represents the essential form of materializing the entire activity of the public administration. The administrative acts represent the unilateral manifestation of will through which the administrative authorities define their practical character, expressing in order to do that, in a regime of public power. Administrative acts’ characteristics present those features which, by resulting out of the cumulative reunion of the essential elements and of the validity conditions, they differentiate these acts from other categories of legal acts. When we say characteristics of the administrative acts we understand those features which individualize these acts from other legal acts. Keywords: administrative act, administrative law, legal effect, unilateral character. JEL Classification: K23 1. Preliminary considerations The administrative acts represent the main legal form of the activity of the public administration authorities, starting with the executive power authorities: President, Government, and ministries, and ending with the public administration authorities and institutions functioning in public power regime. The acts issued by these authorities in public power regime are generically called administrative acts2. The administrative acts represent the unilateral manifestation of will through which the authorities of the public administration define their practical character, and their express themselves, in order to do that, in regime of public power. Depending on the number of will manifestations, contained by them, and according to their legal regime, the public administration’s acts can be classified in the following categories: a) Unilateral legal acts: 1. Unilateral administrative acts issued in regime of public power (administrative acts of authority); These can be classified in two subcategories:  Individual administrative acts (or of individual character);  Normative administrative acts (or of normative character). 2. Unilateral acts of common law. b) Bilateral or of administration legal acts: 1. Public administrative acts (administrative contracts); 2. Private administrative acts (common law acts); 3 Administrative acts’ characteristics, they represent these features which, by resulting out of the cumulative reunion of the essential elements and of the validity conditions, they differentiate these acts from other legal acts categories4. Gathering together the essential elements and complying with the validity conditions established by law, the administrative acts have the following characteristics: they are unilateral, legal, mandatory, and they are executor and opportune (up to date). Dumitru Ştefan Coman - West University of Timisoara, Romania, . Trăilescu „Drept administrativ”, 4th ed., Ed. C.H. Beck, Bucharest, 2010, p. 189. 3 Idem., p. 190. 4Antonie Iorgovan, Tratat de drept administrativ”, Vol. II, Ed. Nemira, Bucharest, 1996. 1 2Anton Perspectives of Law and Public Administration Volume 8, Issue 1, May 2019 146 2. The unilateral nature of the administrative act The Unilateral Character represents that quality of the law act according to which it is issued without the participation or the consent of the law subjects, to whom the act is destined, or concerning the rights and the obligations generated by it. Unlike other law acts (the civil law acts, for instance), the unilateral character of the administrative acts it is determined by their issuing on the ground and for exercising the state power. This unilateral character it is specific to all power acts, in the category of which fall also the administrative acts, together with the acts of the legislative power, of the justice courts, and of the prosecutor’s office. The unilateral character is defined by the fact that the unilateral manifestation of will takes place in the frame of the executive power, of organizing the enforcement of the law, and of concrete observing of the law, coming, for instance, from a public administration’s body. When an administrative act if issued ex officio by a state body, creating obligations on other subjects, public authorities, organizations, associations, or individuals, etc., the unilateral character of these acts it is as obvious as possible, fact that explains also the possibility of revoking the administrative law acts, even by the authority which has issued them. Having situations as: - performing a benefit or a payment by the other subject of the legal relationship, other than the issuing body, - fulfilling of some obligation by the state body, - respecting of some procedural formalities when issuing the administrative acts5, we can affirm that the mode of issuing and of executing the administrative acts can lead to the interpretation that these situations give an unilateral character to these acts. Sometime, the issuing of an administrative act is preceded, accompanied, or followed, by performing a benefit or a payment by the other subject of the legal relationship, other than the issuing body6. In this situation the amount paid it doesn’t represent the equivalent of the state body’s performance, in exchange of issuing the act, this representing actually the tax imposed by the law for issuing a license, an accord, a permit, etc. In these conditions, the military ID’s book it is issued to persons who have satisfied their service without one can say that satisfying the military service it represents satisfying an obligation of contractual nature, to which the issuing of the military ID’s book would confer the bilateral character. Likewise, the driving license it is released to the holder only after he has paid the legal taxes and the cost of the interim period; and the land owned by the state can be attributed in order to be used for building houses only after paying the fees established by the legal provisions. In these cases, there is not about an onerous benefit providing, executed by the beneficiary of an administrative act in exchange of issuing the respective decision, so that this act to receive a bilateral character. On a brief analysis, one can ascertain that there it would be an obvious disproportion between the paid amount of money and the administrative service provided, namely that what has been paid could seem too little or too much - according to the situation – related to the administrative service provided. On the other hand, in the most cases, the respective amounts of money aren’t even paid on the benefit of the state body, that is part of the legal relationship, these amounts being destined to the direct benefit of the state. The unilateral character it is maintained also on the hypothesis that the administrative act establishes obligations in charge of the (...truncated)