Dell'interesse pubblico e di altri "incidenti" nell'annullamento d'ufficio e nella convalida delle fattispecie precettive di diritto amministrativo

COTZA, PAOLO

2012-01-01

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Abstract

The jurisprudential and doctrinal tradition of Italian administrative law emblematically conceives the ex officio annulment and validation as impressed by an all-encompassing consideration of the illegitimacy of the particular provision more than the public interest in deciding whether “to withdraw or to cure”. However, this understanding is not reflected by current experience, in national, as well as in comparative or "community" practices. The lack of theoretical updating has adversely impacted studies of positive law which "codified" the institutes, especially, with regard to the effects and the limits on the exercise of the particular administrative power. Therefore, a twofold "revisiting" approach is proposed, an epistemological approach (ranging from the exaltation of the potential of the "hermeneutic circle", to the emergence of a disciplinary model which is consequentialist rather than casuistic) and a systematic approach. A condition of "consubstantiality" is re-established between the evaluations of legitimacy and the evaluations of reasonableness; thus overcoming the traditional preclusions concerning the "divergence" (from the legislative model) of the administrative act subject to re-examination, the discretionary nature of the act of "withdrawal", and the profile of the institutes’ effects.