Review Article: 2022 Vol: 25 Issue: 2S
Hisham Hamed AL-Kasasbeh, Al-Zaytoonah University
Rami Ibrahim Hasan Alzwahreh, Civil Law
Citation Information: AL-Kasasbeh, H., & Alzwahreh, R. (2022). The extent to which the status of the plaintiff applies to the individual and the administration claiming the annulment "A comparative study”. Journal of Legal, Ethical and Regulatory Issues, 25(S2), 1-14.
The administration enjoys privileges, it is natural that these privileges affect in one way or another conduct of the administrative litigation, especially the evidentiary procedures. Because the administration, by excluding these privileges, is considered the strongest party in the lawsuit and is usually dominant over the evidence. In most cases, this makes her take the position of the defendant, which is the easiest and easiest position, while the person who is defenseless from any privileges and mostly devoid of evidence, stands the plaintiff in the administrative case, which is the most difficult position. Consequently, these privileges affected the positions of the two parties in the administrative lawsuit and created the phenomenon of imbalance between them, given that the administration of the strong party is the holder of the left position, but this does not prevent the administration from standing in the position of the plaintiff in some cases. So we will try to centralize the two parties in an annulment lawsuit.
Annulment Lawsuit, Plaintiff, Defendant, Direct Execution Privilege
The formulation of the theory of proof in the administrative law on the basis of the conditions of this law and the nature of the administrative case, relates to administrative ties to which the administration is a party. It is dominated by the principle of legality, which means that the administration in all its actions is subject to the provisions of the law, in a manner that suits this distinctive nature of administrative lawsuits, and is compatible with it in order to achieve administrative justice; This is because the administration cannot be considered a normal party in any dispute in which it is involved. This is due to the vital role played by the administration, and the lofty goal that it seeks to achieve, so it enjoys certain privileges, with which a fair balance between the two parties is negated (Ahmed, 1995).
The individual stands as a plaintiff in the administrative lawsuit on a permanent basis, which does not prevent the administration from being a plaintiff in certain cases dictated by the nature of its position, and its desire to obtain its rights towards individuals without resorting to the privilege of direct execution. This is in order to avoid the responsibility incurred by it, and from these lawsuits; Disciplinary cases, criminal cases, and some purely administrative cases (Badawi, 1969).
Objectives of the Study
The study aims to clarify to whom the plaintiff description of an annulment claim applies, the realization of its elements, the exchange of the claimant's character, when the administration is a plaintiff, and what is the claim through which it can be a plaintiff (Nada, 1972).
The Problem of the Study
The problem of the study lies in clarifying the difference between the plaintiff individual and the plaintiff administration, and showing the effect of the privileges enjoyed by the administration on the character of the plaintiff for each of them (Fouda, 2011).
Questions of the Study
1) Defining a plaintiff as annulment, interchangeability and fulfillment of the elements of an annulment?
2) What are the types of lawsuits that the administration resorts to in order to obtain its rights without resorting to the privilege of direct execution?
The Study Method
As for the method of the study, the researcher will follow the comparative approach of the legislation and judicial trends regulating this issue and indicate its shortcomings, if any (Rashwan, 2005).
Division of the Study
The applicability of the plaintiff adjective to the annulment case will be dealt with in two independent sections: the first topic: the individual claimant, and the second topic: the claimant administration, as follows (Al-Shaer, 2008):
The First Topic
Booting and Partitioning
It is clear from the follow-up to the annulment lawsuit that there is a clear phenomenon before the administrative court, to the effect that the individual who is not provided with evidence in advance stands in the annulment lawsuit usually in the position of the plaintiff. Whereas the administration occupies the position of the defendant stands as an advocate in the case, knowing that the individual is originally the plaintiff 1. Therefore, we try in this topic to refer to the definition of the plaintiff in the first requirement, and exchange the attribute of the claim with the second requirement, the effects of achieving the attribute of the plaintiff in the third topic, as follows (Al-Tamawi, 1965):
The First Requirement
Definition of Plaintiff
Plaintiff is that person who applies to the judiciary seeking judicial protection; That is, he is the one who initiates the lawsuit and has to prove what he claims 2.
And it is expressed - the plaintiff - sometimes: “the litigants as an expression given to the parties to the litigation, and they are the parties to the lawsuit who initiate legal procedures with the judiciary, such as submitting requests, defenses and pleadings” 3.
A plaintiff may be one person or more than one person, or natural persons such as individuals and employees, or foreigners 4. For example, in the case of an administrative decision that affects more than one person, all of these persons may jointly file a lawsuit against the administrative decision issued against them, litigating the administrative authority that issued the challenged decision, in which case there are multiple plaintiffs in the lawsuit. The defendant is one person, and when there are multiple lawsuits, all of which are the subject of a single administrative decision, in this case the court may combine these lawsuits and thus there are multiple plaintiffs in the lawsuit as well 5. Plaintiff must also be clearly defined 6; and to ensure that the condition of interest is met 7. If it is a public legal person, then the representative of this legal person must be identified, and if the plaintiff has an attorney in the case, this proxy must be proven under the power of attorney in the minutes of the session, the name and address of the plaintiff must be mentioned, and the name of the lawyer, the professor, as the law stipulated that the summons be signed From a lawyer who has practiced the legal profession in this capacity for a period of no less than five years, or worked in a judicial position for a similar period before practicing law, the plaintiff delegates him to file the case, and to represent him before the court in all trial rounds and procedures, and until the issuance of the final judgment, provided that the attorney’s agency is If the agency is invalid for any reason, the case is returned in form 8 (Al-Tamawi, 1966).
Some believe: The legislator, in developing this article, and stipulating the term condition, only emphasizes the importance of litigation before the administrative judiciary, which needs a certain experience and competence that is available only in the group of lawyers to whom Article (9/a/1) referred to in the Judicial Law. This is so that the administrative decisions and government actions are not subject to unjustified accusation and sin if the matter is left unchecked. Therefore the lawyer’s signature is an essential procedure that omission results in the invalidity of the regulation9.
In the event that the lawsuit is filed by the plaintiff against one of the ministries, departments, public bodies, or public or private legal persons, it is sufficient to fulfill the capacity condition that the name of that entity appears in the lawsuit statement 10. Accordingly, the appearance of the State Litigation Authority in the case before a court of first instance, and its deposit of documents related to the case after obtaining them from the concerned administrative authority, makes the plea that the case is not accepted for filing a non-qualification without a legal basis. That is because the authority represented the owner of the correct capacity, obtained from him the lawsuit papers, and was informed of them, which makes no point in saying that his knowledge of the dispute was neglected 11.
The Second Requirement
The plaintiff may take the position of the defendant in the action if an interlocutory request is made by the original defendant in the action, in which case the plaintiff is in the defense position; Any defendant in this interlocutory request. This does not mean changing his capacity as a plaintiff in the case; this is because this characteristic remains attached to him from the beginning of the case until its end. But in the event that an interlocutory request is submitted by the defendant, the plaintiff’s position is identical to that of the defendant only, but without there being a change in his overall capacity in the lawsuit. The plaintiff remains a plaintiff, and the defendant remains as the defendant until the end of the litigation 12.
Based on the foregoing, the presence of the individual as a plaintiff in an annulment lawsuit face to face with the administration as a defendant is what is benefited from the legal texts and basic principles that apply before the administrative judiciary, and the related litigation circumstances, and the competencies entrusted to the administrative judiciary in France, Egypt and Jordan 13.
Referring to the various laws regulating administrative judicial bodies, whether in France, Egypt or Jordan, we see that they did not indicate or mention any text that defines the position of the individual as a plaintiff in an annulment lawsuit, and the administration as a defendant. This is because the existing texts show how to file and file a lawsuit, and how to submit documents and related procedures that regulate the progress of the lawsuit and the exchange of roles between the litigants in the lawsuit, either from an ordinary person, an individual or a private entity as a company or an association, or from the administration alike Facing various hypotheses and situations 14.
It does not mean that the absence of the texts regulating the administrative judiciary in France, Egypt and Jordan from any explicit text - that the individual or the ordinary person is usually the plaintiff in the administrative case - prevents it from saying that the insightful of these texts finds that they implicitly acknowledge the general principle that the individual or entity The private is usually the plaintiff of the lawsuit, and that the administration accordingly stands the defendant's position. Likewise, the absence of these texts leads us to take into account the provisions of the articles of the special law that are specified in this matter in order to find a solution, which was confirmed by the Jordanian administrative judiciary by saying: “The Law of the High Court of Justice included procedural rules that organized the conduct of the trial before the High Court of Justice. In the event that these rules are not sufficient, the General Procedures Law, which is the Code of Civil Procedures, shall be applied 15.
This clarifies what was stipulated in Article 32 of the decree issued on July 31, 1945, regarding the French Council of State, stating the jurisdiction of the Council, as it included its jurisdiction to adjudicate requests for annulment due to the excess of the authority submitted against the decisions of the various administrative bodies 16.
Referring to the texts of the Egyptian State Council law regarding the powers entrusted to it, we find that they implicitly clarify the aforementioned general origin, and reveal that the individual usually stands in a plaintiff position facing the administration. And by looking at these competencies contained in the core of the law, he finds that they included an image that clearly expresses the individual’s standing claiming, The administration is a defendant, and this is confirmed by Article (10) of the Egyptian State Council Law 17. It is also confirmed by Article (24) of the Egyptian State Council Law by setting the date for filing an annulment lawsuit, which is originally only submitted by the concerned individuals, and Article (25) of the same law stipulates that: “The petition and its attachments shall be announced to the competent administrative authority and to The concerned parties should be within a period not exceeding seven days from the date of their submission, and the notification shall be made by mail by registered letter with acknowledgment of receipt.” Also, Article (26) of the same law stipulates that: “The competent administrative authority shall deposit the court clerk’s office within thirty days from the date of its submission. The date of its announcement is a memorandum of data and notes related to the case, accompanied by the relevant documents and papers (El-Shamy, 2008).
There have been texts in the Jordanian Administrative Judiciary Law that took this direction with regard to the competencies entrusted to the court, including the text of Article (5/a) which states: “The Administrative Court is exclusively competent to consider appeals submitted by stakeholders related to the following 18: Including item (2), which relates to “the appeals submitted by those concerned with the final administrative decisions issued for appointment to public jobs, or related to the annual increase, transfer, promotion, delegation, or secondment (Khalifa, 2017).”
As well as Clause (6) related to: “The appeals submitted by any aggrieved party requesting the annulment of any system, instructions or decision based on the system’s violation of the law issued pursuant to it, the violation of the instructions to the law or the system issued pursuant to it, or the decision’s violation of the law, regulation, or instructions based on it.” And clause (7) related to: “Claims submitted by individuals and bodies for the annulment of final administrative decisions (Al-Attar, 1972).”
The text of Article (7/a) of the Jordanian Administrative Judiciary Law states: “The lawsuits are filed against the person who issued the contested decision, and it is stipulated that the lawsuit be based on one or more of the following reasons (Al-Helou, 2006):
1) Lack of jurisdiction
2) Violation of the Constitution, laws and regulations, or error in their application or interpretation
3) The association of the decision, or the procedures for issuing it, with a defect in form
4) Abuse of power
5) Defective reason
As for Article (8/a) of the same law, it states: “The summons shall be submitted to the Administrative Court (Masoud, 2009).”
It is understood from the presentation of the previous texts, whether in Egyptian or Jordanian legislation, that the judiciary is primarily concerned with two types of administrative disputes; The first type relates to the annulment of administrative decisions and compensation for them. The individual here is always in the center of the plaintiff in the lawsuit, and the second type relates to the full judiciary regarding settlement disputes for employees, and administrative contract disputes. The principle in it is that the individual is usually the plaintiff, except in some rare exceptional cases in which the administration takes the position of the plaintiff, whether by choice and of its own free will, or because the judicial path is the only way to entail its rights 19.
The Third Requirement
Plaintiffs Attribute Realization Effects
It is evident from the specification deduced from the legal texts that the individual is the plaintiff in the administrative case. And the administration is the defendant, as this is due to the basic principles of administrative law, some of which are considered factors influencing to varying degrees in the formulation of the theory of evidence in administrative law 20.
It can be said that the previous general origin combines and combines in order to achieve it, several influences are represented by the following: First: the principle of legality, second: the texts of laws regulating the jurisdiction of the administrative judiciary, third: the privileges enjoyed by the administration (Al-Kilani, 2017).
The principle of legality 21 upon which modern states are based means, in the field of public law, the administration's subordination to the law in its broadest sense 22. This is because in the case of the application of the principle of legality in the circles of public law, it entails the organization of the administrative judiciary to exercise judicial control over the work of the working administration 23..
On this natural basis, the individual has become a plaintiff before the administrative judiciary, as he is the specialist in this field of lawsuits arising between individuals and the administration on a legal basis based on the principle of legality, while what comes out of the jurisdiction of the administrative judiciary is left to be considered by the ordinary judiciary. This assures us that the individual is often the plaintiff in the administrative case, at a time when the administration is a plaintiff, a position that gives it an advantage in enjoying its privileges, the most important of which is keeping the administrative papers and possessing them, at the same time the individual remains in the plaintiff position bearing his burdens (Ahmed, 1994).
The individual often finds himself, as a consequence of the administration's prerogatives, in a situation in which he has to establish the evidence that the administration acted unlawfully, and if the plaintiff cannot give evidence of the unlawfulness of the decision -- for the unlawfulness lies in the ulterior motives of the decision. Especially since the administration is not considered obligated to show its motives, the judge can ask the administration, not only to express its motives, but to submit the entirety of the documents on the basis of which the decision was taken, and which may expressly or implicitly reveal its motives. If it refuses to provide information and documents, or is satisfied with unconvincing justifications The appellant’s appeal will be valid, and the judge will issue his judgment on this basis.” 24.
The plaintiff does not require the administrative judge to prove the inevitability of all the facts he invokes, but only to provide elements that would cause him to believe that the administration's decision may not be based on his cause. These elements which the plaintiff puts forward must give rise to doubt in the judge's mind, and the burden of proof rests on him only within these limits 25.
Based on what was previously mentioned in the statement of the administrative judge’s positive role in the administrative lawsuit, and the extent of the judge’s response in that matter to find a balance between the individual parties to the lawsuit as a plaintiff and the administration as a defendant, it is no secret that the difficult position of the plaintiff - in the face of the administration that owns documents and data crucial to the settlement of the lawsuit and enjoying the privileges of public authority - led to an imbalance between the two parties to the case. This requires the judge to remain keen on finding a true balance in the field of evidence through his positive role in the consideration of the administrative case.
The Second Topic
The Plaintiff's Administration
Booting and Partitioning
Emphasizing the general origin, which is the individual standing as a plaintiff in the administrative lawsuit, but there is an exception to it that is given to the administration to be in the position of the plaintiff, and the individual is the defendant. That is, the administration is on the side charged with the burden of proof and confirming it. These cases are few and insignificant, and they are considered an exception to the general principle. The administration does not file the case initially as a plaintiff; Because it can issue whatever decisions it wants to preserve its rights and which it deems to achieve the public interest 26.
This does not prevent the administration from resorting to the administrative judiciary as a plaintiff; where there is no legal impediment to that. The administration here must verify the physical presence of the defendant; So that if it turns out that the defendant does not exist because his legal personality is removed from him at the time of filing the lawsuit, the litigation does not take place at that time, and the court may rule not to accept the lawsuit 27.
Thus, the administration is free to take the judicial path in exceptional cases. So that it is at the center of the prosecution in three main cases, which collectively represent the usual administration cases before the administrative judiciary. These cases are not limited to, but are the most common basic cases of management lawsuits 28, which are disciplinary lawsuits with the first requirement, criminal lawsuits with the second requirement, and purely administrative lawsuits with the third requirement, which can be highlighted as follows:
The First Requirement
Disciplinary cases are: “that are filed against a worker or employee who violated the duties of his job, or who did an act forbidden to him” 29.
This is when the administration resorts to the disciplinary judiciary, which is a distinct part of the administrative judiciary, requesting the imposition of a disciplinary penalty on state employees in accordance with the rules of disciplinary responsibility. The administration under the disciplinary judiciary is always the plaintiff, and this entails proving that a disciplinary offense, or a job error, or a disciplinary offense that occurs as a result of breaching the duties of the job, positively or negatively 30.
Every employee who violates the duties stipulated by the laws - such as deviating from the requirements of the duty in the work of his job that he must perform himself, or failing to perform them with the required caution, accuracy and honesty - commits an administrative sin that requires discipline 31. And that is based on the relationship which the employee is associated with the state and is an organizational relationship governed by the laws, regulations and instructions in force. 32
The disciplinary case is brought against the employee before the competent disciplinary court by the administrative prosecution of its own accord when it sees, in light of the investigations it has conducted, that the employee’s disciplinary sin is not commensurate with the penalty that the management authority has the right to impose. The Administrative Prosecution may also initiate and initiate a disciplinary case at the request of the administrative authority to which the employee belongs for administrative violations, or at the request of the head of the Central Auditing Organization for financial violations, which are those that result in the loss of the right of the Central Auditing Organization in financial violations, and thus the loss of the right of state finances 33.
An employee's disciplinary liability differs substantially from his civil as well as his criminal liability; this is because disciplinary responsibility is a legal responsibility resulting from a violation of a legal duty, while moral responsibility is based on a violation of a moral or administrative duty, such as the duty not to be hypocritical 34.
This case of management lawsuits does not appear, of course, except for employees within the scope of the public office, in addition to the disciplinary systems for those who belong to professional unions in accordance with the laws issued in this regard 35.
The basis for placing the burden of proof in disciplinary cases on the administration is that the investigation papers and the decision issued for the penalty are in its possession, and then the administration is actually and legally obligated to submit the documents 36.
The Second Requirement
The criminal judiciary is one of the branches of the administrative judiciary of a special nature that is independent of the annulment or the full judiciary, although it is related to the judiciary of legality, as is the case with the disciplinary judiciary 37.
Within the scope of the penal judiciary, the administration takes the initiative to resort to the competent judge to impose criminal penalties for some violations committed by individuals, whether they are employees or other members of society as a result of their violation of the laws and regulations that protect public funds, and ensure their performance of what was allocated for them. Here, the criminal case is completely different from the ordinary administrative case represented in the annulment case and the full court case; where the criminal case aims to impose a penalty on a specific act. Thus, it is originally an administrative lawsuit of a special nature 38.
"In these cases, the administration's obligation to resort first to the judiciary, with the consequent standing of the plaintiff position in the case, and bearing the difficulties and burdens of proof, appears in this regard, as well as disciplinary cases, in that the administrative body proves the violation, and then its obligation to resort to the judge. The specialists - the disciplinary or penal judge - bear papers and documents to impose the appropriate penalty. This division of jurisdiction and the separation between the powers of accusation and penalty, that is, the separation between the body that is responsible for proving and presenting violations, and the body that is competent to impose the penalty, is a general principle that prevails in administrative law in such cases. Cases, as is the case in the criminal law, where the judge is competent by virtue of his position to impose the penalty in the violations or crimes presented to him by the accusing authority in accordance with judicial procedures and guarantees. Whatever the privileges recognized by the administration, it does not entitle it to impose criminal penalties as penalties originally entrusted to the ordinary criminal judge an exception to this is the administrative penal judiciary, as is the case for major road violations in France, which the administrative courts are concerned with. It is not permissible to impose some penalties similar to criminal penalties 39.
It is noted that disciplinary cases differ from criminal cases in terms of the persons subject to them; Disciplinary action applies to employees only. As for the criminal case, it can be filed against all residents of the state, and the act may constitute a disciplinary offense, and another criminal at the same time, and thus the disciplinary courts impose the penalties stipulated in the laws regulating the affairs of those being tried 40.
These criminal cases, which are familiar in France, do not exist before the Egyptian State Council or before the administrative courts in Jordan.
The Third Requirement
Purely Administrative Lawsuits
The administration stands the plaintiff position in the administrative proceeding in certain cases in which it does not have the privilege of direct execution. In these cases, she prefers not to exercise this privilege, although she enjoys it, for fear of being liable. Therefore it resorts first to the judiciary.
In this way, the cases in which the administration initially resorts to the administrative judiciary regarding purely administrative disputes can be divided into two types:
The first type: Cases in which the administration does not enjoy the privilege of direct execution:
Here, the administration is obliged to take the position of the prosecution as the only way to obtain its rights or to impose the prescribed penalty 41, since it is not permissible to invalidate the conduct or dissolution of an institution except by virtue of a court ruling 42.
- The second type: cases in which the selected administration prefers to resort to the judge in the first place, even though it enjoys the privilege of direct execution:
Here, her position is optional as a plaintiff, and not as the only means of obtaining her dues and protecting her legal position 43. A doctrinal dispute arose over the administration’s resort to the administrative judiciary as a plaintiff, among several justifications, including 44:
An opinion that says: "The administration should not be a plaintiff, and it is not permissible for it to file a lawsuit against an individual before the administrative court, because this conceals a deviation in the means" 45. This opinion is based on the fact that the administration must be a party to the administrative lawsuit and it is a defendant; This is for the reason for which the administrative judiciary was established, which is the non-interference of the ordinary judiciary in its work, and because it has a special privilege in which individuals take the initiative to issue effective administrative decisions, so this exempts her from resorting to the judiciary as a plaintiff, and she has the status of the defendant with its advantages.
There are those who believe and rightly: “The previous trend is an exaggeration due to the sincere desire to prevent deviation on the part of the administration, and it is not in line with the legal trends on which jurisprudence and the judiciary have settled, because just saying that there is a deviation in the means is justification based on a personal feeling, And because the administrative pleadings and the impartiality of the judiciary in a way that serves justice will protect the stakeholders, and the principle of confrontation or confrontation in the procedures as one of the principles of litigation provides a real guarantee for both parties, especially the weak party. It may also be the only way for the administration to obtain its dues, or to determine the legal position; Direct implementation is under the responsibility of the administration. Therefore, issuing an executable judgment instead of direct execution leads to avoiding the possibility of being liable in some cases, which is a trend worthy of adoption and encouragement” 46.
We believe that the lengthening of preventing the administration from deviation does not depend on preventing it from being a plaintiff; Because the existence of deviation does not mean that the individual has become incapable of fulfilling his rights. Resorting to the judiciary is an easy matter for individuals to confront the administration in case of deviation. Also, in the event that the administration fulfills its rights through the judiciary, this leads to the consolidation of tranquility between individuals and the administration, and consequently, the administration moves away from the consequences of resorting to direct implementation of its responsibility, which leads to the administration incurring large amounts of money as a result of compensation for what it In the face of individuals resorting to the means of direct implementation.
1) Plaintiff is that person who applies to the court for judicial protection; That is, he is the one who initiates the filing of the lawsuit and is required to prove what he claims, so he is one of the natural or legal persons.
2) The plaintiff takes the position of the defendant in the action if an interlocutory request is made by the original defendant in the action, which does not mean that his status as plaintiff in the action has changed; this is because this characteristic remains attached to him from the beginning of the case until its end.
3) The influences that lead to the realization of a plaintiff are represented by the principle of legality, the texts of laws regulating the jurisdiction of the administrative judiciary, and the privileges enjoyed by the administration.
4) The administration shall be free to take the judicial path in exceptional cases; They are not limited to disciplinary cases, criminal cases, and purely administrative cases.
5) The administration in disciplinary cases does not appear, of course, except for employees within the scope of the public office, in addition to the disciplinary systems for those who belong to professional syndicates in accordance with the laws issued in this regard.
6) Criminal cases are common in France. They do not exist before the Egyptian State Council or before the administrative courts in Jordan.
7) Cases in which the administration initially resorts to the administrative judiciary regarding purely administrative disputes can be divided into cases in which the administration does not enjoy the privilege of direct execution, and cases that choose to resort to the judge initially despite it enjoying the privilege of direct execution.
1) Taking criminal cases before the administrative courts in Jordan is similar to what is applied before the French judiciary.
2) The administration’s resort to the judiciary in purely administrative cases without resorting to the privilege of direct execution to assure the reassurance of those dealing with it that they are the weakest party due to the privileges enjoyed by the administration.
3) Emphasis on throwing the burden of proof in disciplinary cases on the administration’s shoulders because the investigation papers and the decision issued for the penalty are in its possession, and then the administration is actually and legally obligated to submit the documents.
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Received: 07-Dec-2021, Manuscript No. JLERI-21-10296; Editor assigned: 09-Dec-2021, PreQC No. JLERI- 21-10296 (PQ); Reviewed: 18-Dec-2021, QC No. JLERI-21-10296; Revised: 31-Dec-2021, Manuscript No. JLERI-21-10296 (R); Published: 07-Jan-2022