İptal Davalarında İhmal Kurumu: Fransız Örneğiyle Karşılaştırmalı Bir İnceleme

Abstract

Action for annulment aims to ensure the legality of administration through reviewing conformity of administrative acts with law. International treaties, constitution, legislative codes and regulatory acts are taken into account as a reference in this review. While the theory of hierarchy of norms requires each rule to be in conformity with superior norms, they might be in contradiction as well. According to lex superior principle, any rule that doesn't conform to its superior needs to be set aside in judicial argumentation. However, ignoring a rule that has not been abrogated by a judicial decision may cause problems in legal theory. The last sentence of the 90th article of Turkish Constitution, which was prescribed by the 2004 Amendment, stipulates that legal provisions that violate international treaties on fundamental rights and liberties should be disregarded in judicial review. The 55th article of the French Constitution recognizes an absolute priority over national legislation. In Turkey, because of constitutional exception, which is an a concreto way of consitutional control, national law which is incompatible with Constitution can not be omitted by tribunals but only be cancelled by Constitutonal Court. In France same situation prevails due to loi-écran hypothesis, which provides that tribunals have no authority for constitutional control. An administrative regulation, which is considered illegal by an administrative judge, is oftenly disregarded and the relevant law is directly applied when solving the litigation. Nevertheless, this practice has been subject to various critics in the doctrine, mostly those of positivist jurists. What ought to be done is to establish a system that would allow the superior judicial authority to review the legality of rules that should be applied in action for annulment.