การผ่อนคลายความเคร่งครัดของผลย้อนหลังของคำพิพากษาเพิกถอนนิติกรรมทางปกครอง (L'atténuation de l'effet rétroactif de l'annulation des actes administratifs) ในประเทศฝรั่งเศส

Abstract

Abstract

According to the principle of legality and the principles of judicial review, administrative acts that are contrary to or inconsistent with the law may be revoked by the Administrative Court. Besides, this revocation shall have a retroactive effect from the date on which the act was issued, as if the administrative act had never existed. The benefit is to eradicate unlawfulness from the legal system and to protect the rights of plaintiffs who are adversely affected by unlawful administrative acts, in accordance with the judgments of the Conseil d'Etat (Rodière, 26 December 1925). Such a harsh judgment could however seriously damage the rights of people and the public interest. Thus, the gradual relaxation of these principles by the Administrative Courts was therefore taking place. Judges increasingly consider the principle of legal certainty and the principle of legitimate expectations and the public interest. At present, the Conseil d'Etat has relaxed the strictness of the retrospective effect of the judgment revoking administrative acts through the use of sophisticated legal techniques for ensuring the proper administration of justice. For example, the use of the fonctionnaires de fait theory (M. Mtimet 2001), Conditional revocation by requiring the administration to review, improve, and correct any defects that have occurred (Titran 2001), or revocation of unlawful acts, but this revocation will be effective in the future after the date of the judgment (Association AC ! 2004).