الفهرس 
ماهية الإجراء والشكل في القرار الإدارييوجد فقط 14 صفحة متاحة للعرض العام
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المستخلص
Summary
Administration depends in order to direct function assigned to it on a lot of legal and physical means, legal means adopted by management, are administrative contracts, administrative decisions. As the lasted one considered as the most important and the most effective means which used by the administration to achieve its goals, and the administrative decisions considered as one of forms of management is embodied as a public authority and that’s by what imposed on individuals of Commitments. And the rights granted to them.
However, the administration as the executive is nominated more than others to assault on rights and freedoms of individuals, often the administration falls in errors - Whether intentional or unintentional- like deviate the authority granted to them or use it offend. Which would threaten the rights and freedoms of individuals and their security, at the same time violation of the principle of administrative legality, Adopted by countries at the present time have a platform and a beacon, This principle means that the administration should respect and abide by all the laws in force in the State. In whatever form and source, written or unwritten, and in accordance with the hierarchy of the rules in force in that State, and make every legal and physical actions are consistent with those texts and rules in its spirit and in its concept.
So the legislator came, and after it the elimination In many ever-duplication law system countries, and limited Administration authority When issued administrative decisions with a set of conditions and controls, So that if the management has made a decision and don’t follow those terms and controls, and Its decision was illegal. Thus, be voidable or non-existent, Depending on the gravity of the defect, and the concerned people go to court to demand its cancellation, or redress it, or do both together.
It must be noted that the Libyan legislator takes an average hybrid system is mixed with a system of law and the judiciary, and mixes with the duplication of law and the justice system; where the legislator established One civilian courts jurisdiction in all disputes and crimes, Except those exempted special text of Article 14 of Law 51 of 1976 repealed, and Article 20 of Law No. 6 of 2006.
Then a project established called a legislator in the civil courts to eliminate the administrative departments, It comes to Law No. 88 of 1971, regarding Administrative Justice, And gave jurisdiction to adjudicate in administrative disputes stipulated in this Law, for the Chambers of Administrative Justice, Accordingly; If issued an administrative decision is illegal and hurt one of the individuals, to the person concerned in a bid to take the Chambers of the administrative court of appeal courts to request cancellation of this decision.
The Libyan Supreme Court has defined administrative decision in the first case brought, on date 04.05.1954, that: ”Disclosure point of administration for binding her will, with its authority under the laws and regulations, in order to bring about a particular legal status, when it was possible and legally permissible, and was spurred by the public interest in order. ”
After the Supreme Court defined, the administrative decision came - in the same resolution - and set the terms, as follows:
- Disclosure of the will in the form required by law,
- The issuance of an administrative decision of a person, or body, or a competent authority by issuing,
- To have a reason, any realistic case, legal or suggest to management intervention and decision-making,
- To have a legitimate reason,
- To have a legitimate purpose, namely, that aims to the common good. ”
Hence, the administrative decision in order to be true and legitimate, must meet the following conditions: competence, shape, and reason, place, and the purpose, so that the consequent failure of one of these conditions; that the decision becomes faulted defect of illegality and worthy of cancellation.
Hence acknowledged the people of jurisprudence and the judiciary - and before them the legislator - on the existence of five aspects to challenge the revocation of administrative decisions, namely: lack of jurisdiction defect, defect shape and defect shop, and the reason defect or lack thereof, and defect abuse of power. Researcher and he saw that the subject of this study is limited as a president of the defects referred to, a defect in the form of administrative decision.
Controversy and disagreement among scholars has erupted, on defect figure includes procedures considered a defect, or that each of them is independent of the other, and each team tried to justify his point of view different advocacy, sometimes the views of scholars, and at other times of the provisions of the judiciary.
That the views of scholars and court rulings, have discriminated between the formalities and substantive procedures, which entail overlooked the invalidity of the administrative decision, and between those formalities and procedures is essential, which do not result in overlooked the invalidity of the decision, or do not affect the integrity of, and to reduce the stringency of the restrictions formal and procedural so as not to be hampered by management, thus restraining them in creativity and development on side, on the other hand, there are some formalities and procedures even if they have been neglected, or ignored by the administration, they do not affect nor detract from the assessed individuals guarantees.
However, even if the people of jurisprudence and the judiciary, hardly compile the need to distinguish between the formalities core and non-core and procedures, but there is variation in what is this form, or that a fundamental procedure, and what is not, but that the administrative court disagreed on the penalty Rapporteur of the decision defective defect shape, Supreme Court Libyan made - almost - all the formalities and substantive procedures source of absence, while we do not see this expansion in the absence of the Egyptian State Council or the French with respect to this defect shape, although the courts in France have been expanded in that, in order to extend its jurisdiction over the maximum amount of management decisions, and tighten the screws on the French Council of State, but in recent times, have limited the expansion, and modified slightly from the previous jurisdiction, no doubt to determine the impact of the decision defective defect form impact, in terms of lack and nullification, is an important issue, and entail very important results, whether in terms of administration, or in terms of the judiciary.
where the competent administrative exporter of ownership defective defect shape, if came to the point where lack broad powers, such as drag-and-cancellation, without adherence to a given time, and that this decision was not up to the point of absence, told management withdrawn or canceled, but before expiry of the deadline set, and even said corrected her, to rescind its decision to avoid defective, or take advantage of the possibility of turning the theory of administrative decisions.
The administrative courts broad powers to the decision defective defect shape, he can erase it, and has at the same time avoid judgment erase it, as it is to govern compensation with him, no doubt that if the result of this decision absence, the administrative courts broad powers, and adhere to during addressing him, any date, but also the civil justice becomes competent to address such decisions
The importance of the subject of the study, in that the legal rules in general, adopt a basic degree on formalism, these rules formalism has a very important role in protecting the rights and freedoms of individuals, but also of great importance for all individuals, and spend, and management; as the knowledge formalities core and procedures, and non-core, allow individuals out their hand, but that the German jurist ”Ohreng” believes that freedom and formal twins are inseparable, and on the other hand, recognize management formalities and procedures that must be respected, and adhere to when issued to its decisions, and those that can condoned, and this in turn contributes to the reduction of faulty decisions, which avoids the elimination of a lot of congestion suits, and can also monitor the actions of management, and compliance with the principle of legality
The administrative court control over the defect form the administrative decision, differ from spending to another and from one country to another tightening and softening, is no secret that when the display provisions of the Administrative Justice related, and comparing judicial systems in other countries, of great importance, in terms of that stand on the aspects of the agreement, and the differences between the provisions of Libyan administrative Justice and Comparative, has a great impact on the Libyan administrative Justice - which is still in the process of growth- and in order to keep pace with the administrative our judiciary development of the administrative Judicial Comparative, whether in France, or in Egypt.
This study aims to clarify the nature of defect form the administrative decision, the Libyan Administrative Justice, and Comparative, and to highlight the points of agreement and disagreement between them in this regard, and are the most important written sources, and unwritten, of the form and procedure in administrative decision, with the legal nature of a statement to defect shape, statement the core of the formalities and procedures, and non-core, and the statement of the effect of a defect in the form of administrative decision, with the authorities to clarify the administration and the judiciary on it.
This study has been divided according to the traditional plan of bilateral, taking in consideration the preservation of the formal and logical balance; the contents of the search as much as possible, where the department subject to 2 sections, ensure each section split to three seasons, The name of the first section: formalities core and non-core and procedures address, was this presentation formalities and procedures with an indication of the provisions of the Libyan Administrative Justice and Comparative, particularly the provisions of the French Council of State, and Egyptian, and second section: The Impact of defect form the administrative decision administratively and judicially, both in terms of nullity and the lack, or in terms of management authorities and the judiciary to the defect shape, is that the two sections preceded by an introductory section, he talked about the shape and nature of the procedure and their importance in the administrative decision, which was to talk about the concept of form and procedure in administrative decision, and the sources of form and procedure in administrative decision, and the definition of defect form and a statement of legal nature. And reached at the end of this study - like any researcher - to a number of results, attached some of the recommendations, which i saw that it gain benefit for everyone (individuals, manage, and Elimination) that the most important of these results was the following:
1- The defect form the administrative decision, comprising both form and procedure, which is independent from the rest of other defects, so that the administrative judge can overturn the decision defective defect figure based on him alone, though caused no decision flaw else, and with that the defect shape may interfere with other defects defect such as lack of jurisdiction, and defect abuse of power, but that does not negate the independence of the defect shape, but the Libyan administrative Justice departments have made defect shape, of public order, contrary to what was the case with the French and Egyptian State Council.
2- Almost all of Juristic and eliminating administrators agree, that the previous procedures to take the administrative decision such as legal advice, and preliminary procedures for disciplinary decisions, and the rules of the formation of councils and administrative committees, are essential actions very important, and the administration respected even if no paragraph of them; As for the formalities , the rule is freedom administration to choose the look you see fit, as long as the law was not necessary in a certain way or a certain format, it is essential formalities emphasized by the administrative court, writing the decision, and, tobacco consumption, and sign it, and must be noted that the French legislature passed a law the heart of which rule upside down; where the administration has committed thereunder, causing all the decisions that cause harm to individuals.
3- With regard to the substantive formalities and procedures, it is apparent after viewing the position of the administrative court, it makes the form or procedure substantially in the following cases:
- If the law explicitly described as essential or what is useful.
- If arranged penalty for violating the law or the form of a particular action.
- If it regards breaching the shape or procedure that affects individuals guarantees (rights and freedoms).
- If the form or procedure would breach the impact on the conduct of administration, it specifies the content of the resolution, or the impact on the safety objective.
The secondary formalities and procedures, they are the opposite of what has been mentioned above.
Administrative Justice broad powers to the decision defective defect format; where it is to avoid the judgment to rescind it, and it may abolish it, during the Sixty-two days in both Egypt and Libya, and two months in France, as the event is an important development in this period in France; where extended promised to four months, if the contested decision individually frank establishing of the right, since the year 2006, under the rule of the French Council of State in the case of Tcrnon, the cancellation decision does not comply with a given time, and by a lawsuit absence report, as to the civil courts also become a specialist the report of the lack thereof, and the administrative court in France, saw another development was the possibility of direct orders of the administrative body or replace it, something that was prohibited on the judiciary, but the French State Council saw the need for intervention in some cases, to bind the administration to respect its provisions, and justice Individuals who are not helpless in front of the grave administration authorities, and did well, and we hope that our Supreme Court to recognize this principle, and tracking the impact of the French Council of State, the Council of State of Egypt, look to him some of the sentences handed down recently stating his penchant for this new trend. And Administrative Justice can finally, be judged on the administration to compensate for the defective decision defect shape, as long as the consequent harm to individuals, and there was a causal relationship between the fault and the damage, and it was an extremely fault.