The purpose of the sanctioning power of the Public Administrations is to guarantee effective compliance with the current legal-administrative order, preventing the consolidation of unlawful situations and imposing administrative sanctions on those responsible for administrative offences.
What is the sanctioning power?
It can be defined as a prerogative of Public Administrations. This privilege allows them to correct non-compliance with legal mandates by imposing sanctions, as a response to conduct classified as an infraction .
Characteristics
The Administration has the power to apply existing sanctioning regulations and malaysian phone numbers can innovate the sanctioning legal regime.
This is a power subordinated to the judicial authority . This means that the organs of the Administration cannot carry out sanctioning actions on acts that may constitute crimes classified in the Penal Code or other special penal laws.
The exercise of the sanctioning power influences the fundamental rights and freedoms of the citizens; the set of rights recognized by the Constitution must be respected .
This power is purely formal and is governed by the sanctioning procedure. Procedural guarantees are very important in the punitive field.
The principles of the sanctioning power
In Law 39/2015, of October 1 , on the common administrative procedure, the principles of the administrative procedure are regulated , principles common to all types of procedure and, more importantly, the sanctioning procedure has certain principles, regulated in Law 40/2015 :
The sanctioning power will be exercised when it has been expressly recognized by a law. Who is responsible for exercising this power? The administrative bodies to which it is expressly attributed , by a legal or regulatory provision.
This power extends to the exercise by the Public Administrations of their disciplinary power with respect to the personnel in their service, regardless of the legal nature of the employment relationship.
Excluded : They will not apply to the exercise by Public Administrations of the sanctioning power with respect to those who are linked to them by relationships regulated by the legislation on public sector contracts or by the property legislation of Public Administrations.
Non-retroactivity
It is based on art. 9.3 CE (…) the non-retroactivity of sanctioning provisions that are not favorable or restrict individual rights (…) .
The sanctioning provisions in force at the time of the events that constitute an administrative infraction shall apply .
The sanctioning provisions will have retroactive effect insofar as they favour the alleged offender or the offender, both with regard to the classification of the offence and to the sanction and its limitation periods, including with regard to the sanctions pending compliance when the new provision comes into force.
Principle of typicality
Only sanctions that are defined by law can be imposed , and these sanctions must also be regulated by law.
And can it be regulated by regulations? No , the regulations will only develop what the law indicates and may not establish new violations that are not provided for in the law.
Analogy is prohibited, that is, violations cannot be applied to cases that are not contained in a law; they cannot be applied simply because they are similar.
Responsibility
Who may be sanctioned? Individuals and legal entities , as well as those who are recognized by law as having the capacity to act, groups of affected persons , unions and entities without legal personality , and independent or autonomous assets , who are found to be responsible for the same by reason of fraud or negligence.
Administrative responsibilities will be compatible with the requirement that the offender restore the situation altered by him to its original state , as well as with compensation for the damages caused , which will be determined and required by the body responsible for exercising the sanctioning power.
If there are several responsible parties? Joint liability . However, when the sanction is monetary and possible, it will be individualized in the resolution based on the degree of participation of each responsible party.
The various sanctioning regimes may classify as an offence the failure to comply with the obligation to prevent the commission of administrative offences by those who are subject to a relationship of dependency or connection. They may also provide for the cases in which certain persons will be liable for the payment of the financial penalties imposed on those who depend on them or are connected to them. Example : the responsibility that parents have for their children