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Zásada úměrnosti v judikatuře prvorepublikového Nejvyššího správního soudu

Authors: Šejvl, M. (Michal);

Zásada úměrnosti v judikatuře prvorepublikového Nejvyššího správního soudu

Abstract

This text focuses on the use of proportionality principle in the case-law of the Czechoslovak Supreme Administrative Court (SAC). Theoretical introduction, inter alia, recapitulates “genealogy” of proportionality principle in German legal science and practice of German administrative courts in the 19th century and the first half of the 20th century. We can conclude from this “genealogy” that the principle of proportionality (Verhältnismäßigkeit) was understood mainly as a “test” of necessity or minimal impairment (Erforderlichkeit) and other “steps” of present-day proportionality “test” were not yet fully developed and “isolated” from the “test” of necessity. As far as interwar Czechoslovak legal science is concerned, it was probably Jiří Hoetzel who dedicated some place in his writings to proportionality principle, especially in the field of police measures and expropriation. The analysis of SAC case-law shows that SAC used the proportionality “test” in the review of individual administrative acts rather exceptionally, probably because the SAC’s opinion was that questions of usefulness or suitability (that are closely connected with proportionality understood as necessity) are outside the scope of judicial review, since these questions were rather connected with factual situations and were not understood as questions of normative standards. When the issue of proportionality of individual acts was used by SAC, it happened mainly in the field of police measures and expropriation decisions and the use was not systematic. The author could not find plausible explanation for this unsystematic use.\n

Country
Czech Republic
Related Organizations
Keywords

Czechoslovakia, proportionality, administrative law, courts, administrative courts

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
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