We call the branch of law which sets the rules related to the activity’s field and organization of administration and also regulating the relationship between the state legal entity and the individual on the axis of public benefit and individual fundamental rights and freedoms as Administration Law.
Administration can be defined as an organization established under the auspices of a state legal entity for the purpose of achieving public interest and those employed in this organization. According that, the state needs a settlement to carry out public services which need to be realized within the duty of state on providing order. We call the totality of this settlement as administration.
Administration Law is a new branch of law. The foundation of Administration Law was laid by establishment of a state council on the grounds that arisen of an unfair situation like the implementation of the rules in which the courts do not decide to the solution of the conflictions between the individual and the administration, but the administration, which is a party to dispute, examines conflictions in France after French Revolution. The disputes between the administration and the individual, which had been resolved according to the rules of private law beforehand, have been removed from the task of the ordinary courts in this way and Administration Law has emerged as a separate legal entity.
It should be noted that the old method still continues in the Anglo-Saxon legal system and it cannot be mentioned about a separate Administration Law. With the establishment of a council under the name of the State Council in the act of regulating state organization in 19th century, this amendment in European Land Law Systems, which also showed its influence in our country, has resulted in bringing an institution into action. But this council had not been a very long-standing initiative and this was abolished along with other state institutions on November 1, 1992, when was the date of abolition of the sultanate. In addition to this, it was also included in the Constitutional Law, dated 1924, in the Republican period. A separate legal system, as Administration Law, has been developed in the legal system of our country thanks to the court established in this way and also in our later constitutions with the name of Council of State.
If it is necessary to mention about qualifications of Administration Law, we can say that this branch of law is a legal entity based on court practices. Accordingly, the rules in this respect have generally been based on decisions made by administrative courts. Also, the rules under Administration Law have not been arranged as a special law by putting together, they have scattered in various laws. Apart from that, Administration Law is an area that has different characteristics from private law as it is an independent legal entity. While bilateralism and freedom of will are valid in the field of private law, the general legal situations and unilateralism, which are determined beforehand and do not depend on the will of person (to carry out a transaction of the will by means of public power privileges without depending on the will of the person affected by that transaction), are valid in the Administration Law. The last point that needs to be addressed is the supervision of administration, which is in the executive organ within the scope of the principle of separation of powers, by administrative courts that are regulated separately within judicial organ.
The relationship between the administration and the individual can be resolved within the scope of the rules of administration law as well as within the scope of the rules of private law. This issue is totally depending on context of situation. The administration of only one of parties does not bring the dispute into the scope of Administration Law.
The Cases of Confiscation without Expropriation
The fact that the fundamental rights and freedoms defined in the Constitution can be limited by certain conditions and not interfering with the core area is also valid for the right of property. According that, the right of property, as included in the 46th article of Constitution, can be restricted by paying price in advance and for the purpose of the benefits of public. We call this method as expropriating. According to our Constitution and our laws, the limitation of the right of property other than expropriation is not possible. But, in this practice, the situations which we call as confiscation without expropriation, such as confiscating immovable property even if expropriating is not completed, despite expropriation has been made suitable to its procedure, going beyond its boundaries and allocation of immovable subject to regulation during construction applications for public services, realize.
We call these situations as confiscating without expropriating. Since we can explain the confiscating without expropriating as legally unfair limitation of person’s fundamental rights and freedoms by an administrative transaction of administration, the legal protection that can be requested will be included in Administration Law and the solution of the confliction will be resolved in this field. The people, whose right of property has been restricted unfairly, can demand for prevention of confiscation by the case they will open in administration courts. Apart from that, if they demand compensation for the price, it can be reconciled by the administration. If the reconciliation has been rejected by administration, they can demand the compensation for the price by a case they will open.
Public Power in Administration Law
The administration is the organization that the state has done duty for public affairs. It is necessary to have certain privileges to be able to carry out the operations of this organization. The phenomenon which we call as the public benefit may cause some individuals to get hurt. It would not be right that struggling for getting on an agreement with these individuals one by one of administration. For that reason, these actions must be carried out in order to realize the general benefit and in order to carry out these actions, administration must have some privileges. Here, we call privileges and superiorities, which stand outside of this private law and also have the authority of unilateral action, as public power. We can exemplify the tasks and actions such as law enforcement, expropriation, confiscation as elements embodied in public power privileges.
Because Administration Law rules are scattered in the Constitution and other laws and it is a branch of law based on court practices, there is a need for a specialist assistance to resolve disputes relating to this branch of law. In Topo Law Firm Office, our lawyers who are competent in case-law search and dominant to the rules in this field have acquired the profession to solve your problems on this issue.
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