The Conceptions of the Nature of Administrative Disputes in Croatian and Comparative Law

Koncepcije o prirodi upravnih sporova postaju aktualne donošenjem novog Zakona o upravnim sporovima iz 2010. Proširen je predmet upravnog spora na način da uključuje i ocjenu zakonitosti općih akata. Time je uz kriterij cilja uveden i kriterij vrste akta kao sredstvo za određivanje zastupljene koncepcije. U radu je analizirana zastupljenost koncepcija o prirodi upravnog spora u relevantnim poredbenim sustavima te u zakonima koji su uređivali područje upravnog sudovanja u Hrvatskoj od 1874. do danas. Iako se često navodi da je objektivni upravni spor prema kriteriju vrste akta novina uvedena Zakonom o upravnim sporovima iz 2010., ova analiza pokazuje da su obje koncepcije, u gotovo jednakom opsegu, bile zastupljene i u ranijim razdobljima.Division of administrative disputes was introduced in French legal theory, primarily by Duguit. It is based on several criteria, detailing foundations of the subjective and objective conceptions of administrative dispute through a number of hypotheses. France has the most comprehensive division of administrative disputes, and according to their legal nature, they can be divided into subjective and objective administrative disputes. In short, disputes aimed at protecting individual rights of citizens are subjective, and those aiming to protect objective legality are objective. The German legislator has opted for the conception of objective administrative dispute according to the criterion as to the type of act, which is regulated in Art. 47 of the Code of Administrative Court Procedure. The same conception was adopted by the Croatian legislator. Since the enactment of the first Croatian Administrative Disputes Act from 2010, and its entry into force in 2012, division into objective and subjective administrative disputes has once again become relevant. Subjective conception of the nature of administrative dispute, determined by the criterion of the type of act, was introduced with the adoption of the 1952 Federal Administrative Disputes Act. There was no authority that would be responsible for the control of the legality of general acts. Therefore, in the period from 1952 to 2010, subjective conception of the nature of the administrative dispute prevailed, and it was based on the criterion of the type of act. Both conceptions, subjective and objective depended on the aim of the dispute. Analysis of regulations from previous periods shows that control of general acts in Croatia is not a novelty. Normative basis of administrative dispute against general acts was laid down in Legislative Article XXVI of 1896, the Judicial Authorities Act of 1874 and the Law on the State Council and Administrative Courts of 1922. However, case law did not make use of this opportunity