The Responsibility Of The Administration For The Public Service Mistakes - A Comparative Study

Abstract

Abstract The theme of this thesis is (the responsibility of the  administration  for the public  Service mistakes, which became nowadays  an urgent and binding need for judiciary in deciding compensation  for this type of responsibility  if it was proved through the facts presented before it that there  is  a mistake committed  by the administration that, consequently,  led to the  damage. The concept of responsibility has evolved with social evolution that accompanied the civil state, because the state manages more than it orders, and it is using methods similar to those used by individuals in its administration. Thus,  there is no justification for the lack of its responsibility, until it was decided ultimately that the public administration is responsible for its mistake. There was differentiation in this regard between the public Service mistakes and personal mistake. Thus, the administration shall bear its responsibility for first error not the  second one, whose the responsibility shall be born by who  committed it. After the old jurisprudence and judicial diligence  see that responsibility of the administration is an exception to the rule that states that it is not responsible for it, the modern diligence sees that the lack of the responsibility of the administration is the exception. This has been reflected on the possibility to answer affirmatively the question about the rules applicable  on this responsibility, but according to the rules of the special administrative law and not according to the rules of civil law in this field. There is no doubt that this would cast the task of developing appropriate rules of the administrative disputes in the field of administrative responsibility taking into account the circumstances surrounding them, and keeping up with the developments that occur to the increased  administrative bodies and powers, and enabling them to use some of the privileges that increase their effectiveness in the performance of its functions, but without neglecting to maintain the rights and freedoms of individuals, and what it must have of guarantees leading eventually to serious contribution in building the special rules for administrative responsibility independent from their counterparts in the civil law. Moreover, administration does not have the complete awareness and it can not do any physical act without the mediation of the those who work in it. Thus, we can not say that tort for which the administration is responsible must be issued by a man, who is one of its employees? Then, its responsibility of the indirect nature and for the act of the third party Stating  the direct and personal nature of the responsibility of the administration, or that this responsibility has non-direct nature that results from the act of third party, leading to important implications in terms of the basis upon which this responsibility is based, thus, the personal doctrine bases on the error committed by the employee, who is attributed to the administration as acting on its behalf , or on the basis of an error of the administration directly in the diligence in controlling and monitoring  the employee, or in his choice, therefore, how correct are these two trends? While proponents of the indirect responsibility for the administration  see that it  possible to rely on modern theories such as theory of guarantee and the theory of bearing consequences and their ideas and details were branched out. thus, what is the opinion that is worth supporting in the establishment of this responsibility? And why? If a person was affected as a result of the exercise of the staff of the administration for their various activities and the victim filed suitcase against administration, thus how can the administration remove its responsible? Especially if we know that the employee can use some means to remove his personal responsibility, so, can administration use it as well to remove its responsibility? Does the administration have  special means that it can stick to and use directly against the injured (the victim)  in this regard?  We have seen that the study in this area specifically, bearing into account  the fact that legislation that addressed the issue of administrative responsibility, was marked by a sense of the generalization, which does not specify its scope and boundaries, thus,  its effects was reflected on verdicts of the judiciary, whose verdicts hesitated at first between observance  and denial, and despite the fact that the idea of ​​administrative responsibility may have currently seen stability  at the level of the judiciary and the jurisprudence, but there are a lot of its items is  still in need of further study and rooting on the one hand, and on the other hand, the practical importance of the subject reflected by the reality of suitcases filed  before the court whether was administrative or an ordinary court claiming the compensation for the damage. one of the other issues that emphasize the importance of studying this subject, is what is related to how to compensate for administrative mistakes, it has become evident at the level of legislation and jurisprudence, that the responsibility of the administration has distinct entity  and independent existence, . hence it shall be a reason that necessitates to remove the damage that it entails or mitigate its effects. On the other hand, the administration's responsibility to compensate the damage caused by individuals occupies a great importance because it is complementary to repeal to reverse the verdict, because the latter, albeit it ensures the reversal of the defective decisions, but it may be useless in practice, as it do not guarantee in sometimes covering what results from those decisions of adverse effects, especially when they are implemented. Therefore, it has become known that the reversal of such decisions may not achieve the principle of legality completely if there was  a damage occurred  to some individuals as a result of this implementation, hence compensation judiciary  is complementing to reversal  judiciary, because it makes it imperative for  the demonstration to pay compensation for what  the damages inflicted by individuals as a result of its acts from, after the availability of the pillars of other administrative responsibility which error and damage and causation is proved. moreover, there is administrative acts in which there is only one way to evade it harmful effects through the judiciary of compensation, which is reflected clearly in the physical acts carried out by the administration, without intending evoking certain legal effects, as is the case for motor vehicle accidents, which are owned by the administration, resulting in damages to the individuals themselves or their property. Thus, such actions are not administrative orders or decisions that it can be challenged and repealed by reversal before the administrative judiciary, but as we have said is purely physical in nature and cannot be removed only through the effects of compensation for the consequent damage.