Viešasis administravimas kaip Lietuvos administracinės teisės reguliavimo dalykas: kai kurie probleminiai aspektai

Abstract

The authors of the present article analyse the specific features of the structure of the system of public administration subjects and public administration instruments as constituent elements of the subject matter of administrative law that are formed in the doctrine of comparative administrative law. On the basis of the experience of comparative administrative law, the authors evaluate the problematic aspects of the conception of public administration as established in the positive law in order to reveal and critically evaluate their impact on the scope of the regulatory function of the Lithuanian administrative law.
In summary of the results of the research, the authors conclude that the system of public administration subjects and the forms (instruments) of their activity as established in the Lithuanian law groundlessly narrow the scope of activities attributed to public administration as well as the subject matter of the Lithuanian administrative law itself. The absence of a possibility to recognise private persons performing functions that, on the basis of their nature, are attributable to public administration activity as public administration subjects does not allow the application of the institute of the delegation of public administration authority that is established in the law of foreign countries and, therefore, prevents from ensuring a closer interrelation between public and private capital in the implementation of the functions of the state and the municipalities by using the regulatory powers of administrative law. The authors also pay attention to the fact that the absence of an official establishment of administrative contract as a public legal form of public administration in the Law on Public Administration of the Republic of Lithuania not only narrows the scope of practical application of the conception of public administration, but also is one of the factors that impede the formation of a unified case-law.
With reference to the abovementioned conclusions, the authors of the present article state that the existing legal regulation laid down in the Law on Public Administration must be changed by extending the system of the subjects of public administration as well as the legal forms (instruments) of their activity. It is recommended to establish legal regulation that would allow recognising private persons as public administration subjects, i.e. acting on the basis and within the purview of administrative law in so far as the function they perform is attributable, on the basis of its character (legal nature), to the activity of public administration. The authors also recommend, with reference to the case-law under formation, to officially establish administrative contract as a legal form of public administration equivalent to an administrative act in the Law of Public Administration.