The Master's thesis deals with the legal institution of exceptio illegalis, with a special focus on its use in interpreting administrative regulations. As an introduction, the contents of the said institution are defined, and the basis of judicial review of regulatory provisions is presented. Furthermore, the unsuccessful constitutional reform is described, with which the proposer intended to pass on the judgment of constitutionality and lawfulness of executive regulations from the constitutional judiciary to ordinary judiciary. Despite the reform’s unsuccess, the idea was later partially reflected in the structure of the Spatial Management Act, which the thesis dedicates a separate section to. Following is an overview of judicial and administrative practice. A separate chapter features a comparative analysis. The thesis is completed with a commentary on potential amendments of the field in question (de lege ferenda).
Exceptio illegalis is an institution defined by Article 125 of the Constitution of Slovenia, which states that judges are (only) bound by the constitution and by law. Since the court must reject the use an executive regulation if the said regulation is unlawful, this poses a deviation from valid legal acts. The position is different for administrative authority, while theory and legal practice differentiate between the so-called absolute and relative bindings. It is essential that a disregard of an illegal administrative regulation is exhausted with a concrete case. In other words, the deviation only has an inter partes effect – the regulation is binding until the Constitutional court eliminates or nullifies it. Taking into consideration constitutional juridical practises, successfully rebutting executive regulations is anything but an easy task.
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