Judicial Review of the Legal Characterization of Facts: A Comparative Study

A Comparative Study

Abstract

Abstract

The administrative judiciary monitors the correctness of the adaptation of legal facts, whether the authority of the administration is real or discretionary, and in the disciplinary area applied by the administrative authority towards the employee who has committed a functional error. This issue does not raise a problem when the legislator indicates the cases on which the administration must base its decisions, where in this case the process of adaptation of the facts is easy and simple, so that it only requires verification of the physical existence of the incident, to reach the extent to which the rule of law applies to it. However, the legal text may be general and merely formulated and broad, it can only be determined through a comprehensive examination of the circumstances of the real case, so that it is not possible to separate the adaptation and appreciation of the facts, as in the idea of ​​an unspecified disciplinary error exclusively, it may be assessed as constituting a disciplinary error , and it may be adapted as not constituting a disciplinary error, so the administrative judge removes the ambiguity that he encounters during his control of the contested decision, with the interpretation that he deems consistent with the real intent of the legislator. In the process of interpretation or adaptation, the judge does not have the freedom to decide whether or not he wants according to his estimations, but he estimates what the legislator wants.