The process order of the court of financial administrative jurisdiction (1884-1896)

HU ISSN 1588-6735

EUROPEAN INTEGRATION STUDIES

A Publication of the University of Miskolc

VOLUME 9, NUMBER 1 (2011)

MISKOLC UNIVERSITY PRESS

I-IU ISSN 1588-6735


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EUROPEAN INTEGRATION STUDIESVolume 9, Number 1(2011)

CONTENTS

MKLOSSZABO: FOREWORD 3

JUDITBARTA: THE ROLE AND FUNCTION OF THE PAY-AS-YOU-EARN PENSIONSYSTEM IN THE HUNGARIAN PENSION SYSTEM 5-15

TIMEA BARZO: DELIBERATING THE ROLE AND PLACE OF THE ENGAGEMENT AS ONEOF THE INSTITUTIONS OF FAMILY LAW: SHOULD PARTIES WHO INTEND TO GET 17-25MARRIED BE CONSIDERED AS ENGAGED AT THE SAME TIME?

CSILLA CSAK: THOUGHTS ABOUT THE PROBLEMS OF THE ENFORCEMENT OF THE 27^0'POLLUTER PAYS' PRINCIPLE

EVA ERDOS: THE EXTENTIONAL INTERPRETATION OF THE PRINCIPLE OF PUBLICBURDEN SHARING IN THE LIGHT OF EUROPEAN TAX HARMONIZATION 41-56

JUDITFAZEKAS: SYSTEM OF LEGAL SOURCES AND LEGISLATIVE PROCEDURES OFTHE EUROPEAN UNION AFTER THE TREATY OF LISBON 5 7-72

LASZLO MAJTEWI: FREEDOM OF INFORMARTION, DISCLOSURE, PRIVACY, ANDSECRETS IN HUNGARIAN LAW 73-85

TAMAS PRUGBERGER: THE PLAN FOR NEW REGULATION OF THE TERMINATIONS OFEMPLOYMENT CONTRACTS IN THE MIRROR OF THE DISMISSAL REGULATIONS OF THEMEMBER STATES OF THE EUROPEAN UNION 87-107

ERIKA ^CIS-POSITION OF VICTIMS IN THE CRIMINAL PROCEDURE IN THE CONTEXTWITH REQUIREMENTS OF THE EUROPEAN UNION 109-120

ISTVANSTIPTA: THE PROCESS ORDER OF THE COURT OF FINANCIALADMINISTRATIVE JURISDICTION IN HUNGARY (1884-1896) 121-136

MKLOS SZABO: ON THE CREATABLE LAW 137-148

ANDRAS TORMA: THE EUROPEAN ADMINISTRATIVE SPACE (EAS) 149-161

ZSUZSA WOPERA: FROM ALPHA TO OMEGA: FROM SMALL CLAIMS PROCEDURES TOHIGH PRIORITY CASES 163-173

_ 5 EUROPEAN INTEGRATION STUDIESI Volume 9, Number 1 (2011)

Eigf-PEI’1*EAREH

CONTENTS

@1515SZABCI: FOREWORDJUDLTBARTA: THE ROLE AND FUNCTION OF THE PAY-AS-YOU-EARN PENSIONSYSTEM IN THE HUNGARIAN PENSION SYSTEM

ZTMEA BARZO: DELIBERATING THE ROLE AND PLACE OF THE ENGAGEIVIENT AS ONEOF THE INSTITUTIONS OF FAI'vI[LY LAW: SHOULD PARTIES WI-IO INTEND TO GETMARRIED BE CONSIDERED AS ENGAGED AT THE SAME TIME‘?

CSILLA CSA'K.' THOUGHTS ABOUT THE PROBLEMS OF THE ENFORCEIVIENT OF TI-IE‘POLLUTER PAYS‘ PRINCIPLE

EVA ERDOS: THE EXTENTIONAL INTERPRETATION OF THE PRINCIPLE OF PUBLICBURDEN SHARING IN THE LIGHT OF EUROPEAN TAX HARMONIZATION

J'Ul'1ITFAZEKAS.' SYSTEM OF LEGAL SOURCES AND LEGISLATIVE PROCEDURES OFTHE EUROPEAN UNION AFTER TI-IE TREATY OF LISBON

LASZLO FREEDOM OF lNFURIvIARTIUN, DISCLOSURE, PRIVACY, munSECRETS m HLINGARIAN LAWTAAEISPRUGBERGER: THE PLAN FORNEW REGULATION OF THE TERMINATIONS OFERIPLOYNIENT CONTRACTS IN THE MIRROR OF TI-IE DISMISSAL REGULATIONS OF THEI\r[E1vIBER STATES OF THE EUROPEAN UNION

ERIKA ROTH.'POSITION OF VICTINIS IN THE CRIIPIINAL PROCEDURE IN THE CONTEXT‘WITH REQUIREMENTS OF THE EUROPEAN UNION

ISTVAINSTIPTAJ TI-IE PROCESS ORDER OF THE COURT OF FINANCIALADM]NISTRATI“JE JURISDICTION IN HUNGARY (1334-1396)

AHKLOS52,436: ow THE CREATABLE LAW

AN;-RA19 TORIIM: TI-IE EUROPEAN AEHMHNISTRATIVE SPACE (ms)Z5'U2'S'A WOPERA.' FROM ALPHA TO OMEGA: FROM SMALL CLAIMS PROCEDURES TOHIGH PRIORITY CASES

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European Integration Studies, Volume 9. Number 1. (2011) pp. 121-135.

THE PROCESS ORDER OF THE COURT OF FINANCIALADMINISTRATIVE JURISDICTION IN HUNGARY (1884-1896)*

ISTVAN STIPTAProfessor of Law

Director of the Institute of Legal History and Legal TheoryUniversity of Miskolc

[email protected]

The establishment of the domestic financial administrative jurisdiction was preceded bya serious political and unusually substantial scientific debate. The representatives of theparties in power feared that the corporation would weaken the strength of the state and thenew legal aid forum would make its decisions on behalf of the taxpayers. They were alsoafraid that the chance for judicial review would become a means of legal opposition to thenationalist-minded opposition and the forces against the Compromise of 1867. On thecontrary, in 1883 the point of view of those prevailed, who referred to the common interestsof the state and the citizens, the requirement of legality and the justification of protection ofthe liability to taxation against the state. The result of these considerations was theenactment of Act Nr. 43 of 1883 in the court of financial administrative jurisdiction. Itmodified our historical constitution and regulated the relation of courts and administrativeorgans in a new way.

The introduction of administrative jurisdiction raised the demand for regulation of courtproceedings as well. While the system and regulation of various details were beingfinalized, the elementary question arose as to how decision making would be regulated andhow it could compensate for the advantage that the financial organs of the state had overcitizens during the determination and execution of the financial services. At the same timecare needed to be taken, so that the process would finish quickly and not provide anopportunity for who sought to avoid paying taxes, to procrastinate and shirk theircommitments to the public. The legislation - taking such aspects into consideration - had todecide whether the legal aid organ of court character should operate in a verbal process ofregulation (which provided a greater legal guarantee), or in a written process regulation(which was able to act swifter, and impose the public interest more effectively). Withregards to this decision, the majority of the contemporary government personnel found theinterests of state more important. This meant that the principle of verbalism was rejectedand furthermore, that the compromise solution of facultative verbalism, which had beenproven valuable in numerous other countries was also refused.

This essay sums up the written legislative and scientific antecedents of the processprovisions of the act in the court of financial administrative jurisdiction. Then, it follows

The essay was prepared with the help of Legal Historical Research Group of MTA-ELTE(Hungarian Scientific Academy - Eotvos Lorand University, Budapest, Hungary). It was translatedby Zsuzsa Stipta. Lector in English: Duncan Bare.

European Integration Srtrtfies, Voiunre F. Number I. (Elli I) pp. I2!—i35.

THE PROCESS ORDER OF THE COURT OF FINANCIALADIVHNISTRATIVE JURISDICTION IN HUNGARY (1884-1896)‘

ISTVAN strataProfessor of Law

Director of the Institute of Legal History and Legal TheoryUniversity ofMisltolc

[email protected]

The establishment of the domestic financial administrative jurisdiction was preceded bya serious political and unusually substantial scientific debate. The representatives of theparties in power feared that the corporation would weaken the strength of the state and thenew legal aid forum would make its decisions on behalf of the taxpayers. They were alsoafraid that the chance for judicial review would become a means of legal opposition to thenationalist-minded opposition and the forces against the Compromise of 186?. On thecontrary, in I833 the point of view of those prevailed, who referred to the common interestsof the state and the citizens, the requirement of legality and the justification of protection ofthe liability to taxation against the state. The result of these considerations was theenactment of Act Nr. 43 of 1583 in the court of fmancial administrative jurisdiction. Itmodified our historical constitution and regulated the relation of courts and administrativeorgans in a new way.

The introduction of administrative jurisdiction raised the demand for regulation of courtproceedings as well. While the system and regulation of various details were beingfinalized, the elementary question arose as to how decision making would be regulated andhow it could compensate for the advantage that the fmancial organs of the state had overcitizens dtuing the determination and eitecution of the financial services. At the same timecare needed to be taken, so that the process would finish quickly and not provide anopportunity for who sought to avoid paying taxes, to procrastinate and shirk theircommitments to the public. The legislation - tal-ting such aspects into consideration - had todecide whether the legal aid organ of cotut character should operate in a verbal process ofregulation (which provided a greater legal guarantee), or in a written process regulation(which was able to act swifter, and impose the public interest more effectively). Withregards to this decision, the majority of the contemporary goverrunent personnel found theinterests of state more important. This meant that the principle of verbalism was rejectedand furthermore, that the compromise solution of facultative verbalism, which had beenproven valuable in numerous other countries was also refused.

This essay sums up the written legislative and scientific antecedents of the processprovisions of the act in the court of financial administrative jurisdiction. Then, it follows

I The essay was prepared with the help of Legal Historical Research Group of MTA-ELTE{Hungarian Scientific Academy — Etitvtis Lorand University, Budapest, Htmgary). It was translatedby Zsuzsa Stipta. Lector in English: Duncan Bare.

122 Istvdn Stipta

the legislative debate, values the provisions concerning procedure and compares those withthe standard foreign solutions of the era.

Legislative antecedents, the debate of the committee and House of Representatives

A spirited argument developed during the establishment of the court of financialadministrative jurisdiction. This debate centered around the conflicting opinions of therepresentatives of the opposition on the one hand, and the government party on the other.Further complicating matters, the view of the financial and judicial committees of theHouse of Representatives (in which the government party held the majority) variedcategorically with that of the rest of their party. The debate in the House of Representativeswas especially intense and constructive during the phase when the process law of themotion was discussed. Unusually, even the counsel of the Upper House was able tosubstantially shape the course and the details enacted via due process.1 Professionaljournalists also had an effect on the process of legislation. The jurist public writersparticularly fought successfully against the first perfunctory proposition of the minister.2

None of the motions put down in the agenda of the minister of finance preparing twobills contained any detailed rules of procedure following the legal intricacies of the era. Hesimply took into account the acceleration of the procedure. Where it was possible, hesuggested for approval the norms of legal force of the civil law action, the Articles 102-107of the Act Nr. 54 of 1868, considered to be transitional already at the time of its enactment.The first proposition from 1881 sought to regulate the procedure of the court by decree ofthe ministry of finance issued in concert with the "ministers concerned". The secondproposition compiled a year later, made official only those decrees issued by the ministry offinance.3

In accordance with the opinion of the standing committee for finances of the House ofRepresentatives the process without any verbosity is generally needed in administrativelegal disputes. This can be the only possible solution should there be a central appellate

1 Stipta, Istvan: Orszaggytilesi vita a penzugyi kozigazgatasi birosagrol 1883-ban. [Debate of Houseof Representatives on the financial administrative court in 1883] In: Unnepi tanulmanyok MatheGabor 65. sziiletesnapja tiszteletere. [Inaugural essays to the honour of Gabor Mathe for his 65.birthday] (Szerk.: Mezey Barna, Revesz T. Mihaly) Gondolat Kiado. Budapest, 2006. P. 518-546.

2 Gruber, Lajos: A penzugyi kozigazgatasi birosagrol szolo javaslat. [The proposal on the financialadministrative court] Jogtudomanyi Kozlony [Journal of Jurisprudence] 1881. (XVI. evf.) II. 19. sz.(1881. majus 6.) P. 165-166.; Nyolcadik magyar jogaszgyules. Kozigazgatasi biraskodas, a IV.szakosztaly vitaja. Concha Gyozo, Lanczy Gyula es Dell' Adami Rezso velemenye. [EighthHungarian Assembly of Lawyers. Administrative Judiciary, the debate of Section 4. Opinions ofGyozo Concha, Gyula Lanczy and Rezso Dell' Adami] Jogtudomanyi Kozlony [Journal ofJurisprudence] 1882. (XVII. evf.) 44. sz. P. 350-352.

3 Torvenyjavaslat a penzugyi kozigazgatasi birosagrol. [Bill of financial adminsitrative court] Az1878. evi oktober 17-re hirdetett Orszaggyules Nyomtatvanyai. Kepviselohaz. [Printed Papers ofthe Parliament called together on October 17th, 1878. House of Representatives] Iromanyok. XXI.kot. 907. sz. iromany. Pesti Konyvnyomda. Budapest, 1881. P. 300-305. 1881. januar 31. [further:First Proposal, 1881.] P. 302-303..; Az 1881. evi szeptember 24-re hirdetett OrszaggyulesNyomtatvanyai. Kepviselohaz. [Printed Papers of the Parliament called together on September 24th,1881. House of Representatvies] Iromanyok. VI. kot. 152. sz. iromany. Pesti Konyvnyomda.Budapest, 1882. 219-225. p. 1882. februar 7. (further: Second Proposal, 1882.) P. 221., 223.

I22 Istvdu Stiptrr

the legislative debate, values the provisions conceming procedure and compares those withthe standard foreign solutions of the era.

Legislative antecedents, the debate of the committee and House ofRepresentatives

A spirited argument developed during the establishment of the cotm of financialadministrative jurisdiction. This debate centered around the conflicting opinions of therepresentatives of the opposition on the one hand, and the government party on the other.Further complicating matters, the view of the financial and judicial committees of theHouse of Representatives (in which the government party held the majority) variedcategorically with that of the rest of their party. The debate in the House of Representativeswas especially intense and constructive during the phase when the process law of themotion was discussed. Unusually, even the counsel of the Upper House was able tosubstantially shape the course and the details enacted via due process.‘ Professionaljournalists also had an effect on the process of legislation. The jurist public writersparticularly fought successfully against the first perfunctory proposition ofthe rninisterd

None of the motions put down in the agenda of the minister of finance preparing twobills contained any detailed rules of procedure following the legal intricacies of the era. Hesimply took into account the acceleration of the procedure. Where it was possible, hesuggested for approval the norms of legal force of the civil law action, the Articles 102-10?of the Act Nr. 54 of 1363, considered to be transitional already at the time of its enactment.The first proposition from 1331 sought to regulate the procedtue of the court by decree ofthe ministry of finance issued in concert with the “ministers concerned". The secondproposition compiled a year later, made official only those decrees issued by the ministry offinanced

In accordance with the opinion of the standing conunittee for finances of the House ofRepresentatives the process without any verbosity is generally needed in administrativelegal disputes. This can be the only possible solution should there he a central appellate

I Stipta., lstvan: Orsaaggyiilesi vita a pénztigyi kiiaigaagattisi birosagrol 1333-ban. [Debate of Houseof Representatives on the financial administrative court in 1333] In: Unnepi tanulmanyol-t MathéGabor 65. srrtiletesnapja tiszteletere. [Inaugural essays to the honour of Gabor lvlathe for his 65.birthday] (Saerlc: Meaey Barna, Revesz T. Mihaly) Gondolat Kiado. Budapest, 2336. P. 513-546.Gruber, Lajos: A penailgyi lttiaigazgatasi birdsagrol szdld javaslat. [The proposal on the financialadministrative court] Jogtudomanyi Koaldny [Journal of Jurisprudence] 1331. (XVI. evf.) ll. 19. sa.{1331. majus 6.) P. 165-166.; Nyolcadilt magyar jogasagyilles. Kdaigazgatasi biraskodtis, a Dr’.szaltosztaly vitaja. Concha Gyii-ad, Lanczy Gyula és Dell‘ Adami Reasii veleménye. [EighthHtuigarian Assembly of Lawyers. Administrative Judiciary, the debate of Section 4. Opinions ofGyf:-zii Coneha, Gyula Lanczy and Reasii Dell’ Adarni] Jogtudomanyi K-ifizldny [Journal ofJtuisprudence] 1332. (XVII. evf.) -=14. sz. P. 351]-352.Ttirvényjavaslat a périztlgri ktiaigaagatasi birosagrdl. [Bill of financial adminsitrative court] Az1323. evi olctober 1?-re hirdetett Orsaaggyiiles liiyomtatvanyai. Kepviseltihria. [Printed Papers ofthe Parliament called together on October lTt11, 1323. House of Representatives] Iromanyol-t. XXI.kdt. 311?. sz. iromany. Pesti Rtinyvnyomda. Budapest, 1331. P. 3113-335. 1331. januar 31. [furtherzFirst Proposal, 1331.] P. 332-3l33..; Az 1331. evi saeptember 24-re hirdetett tllrsaaggyillesNyomtatvanyai. Kepviseliiihaz. [Printed Papers of the Parliament called together on September 24th,1331. House of Representatvies] lromanyol-t. V1. ktit. 152. sa. iromany. Pesti Rdnyvnyomda.Budapest, i332. 213-225. p. 1332. februar 2. (further: Second Proposal, 1332.) P. 221., 223.

2

3

The process order of the court of financial administrative jurisdiction (1884-1896) 123

court with one level concerning tax and fee cases. In the opinion of the committee theprocedure enabling the mutual hearing of the parties cannot be required there where "clientsshould be called from all parts of the country [to Budapest] and kept here for days becauseof trivial tax and fee matters." "In most cases, the nice guarantee and the advantage ofverbal, contradictory processes would turn here into a disadvantage. On the other hand,cases demanding a swift settlement would only be delayed, since the execution could not besuspended, to the disadvantage and damage of clients, and their settlement would only behindered." The body found the procedural legal guarantees of the code of civil proceduresufficient. Only the written system was considered to be acceptable in the plannedprocedure of administrative court.4

However, the judicial committee definitely aligned to the principle of facultativeverbosity, guaranteeing more integral legal aid. In this system the verbal procedure was notcompulsory. However, clients had the chance to formulate their arguments verbally beforethe court pleading in writing.

In accordance with the body representing the more developed legal culture, it must besaid that the system of a "speaker" delivering written material cannot completely guaranteethat the controversial question in litigation is made completely aware to the judging court inits entirety. Written material is reported differently by speakers according to their ardor andexpertise. Further, if clients cannot react to the remarks made, the court cannot fully graspthe reality of litigation in every case. Additionally, in those cases brought before thefinancial administrative court, the severe written form would be detrimental also because -as the reasoning went on - in this competence the whole written litigation apparel ismissing and only one court can decide the controversial question sentential-wise, whichmakes the final judgment. The president of the judicial committee, Istvan Teleszky (of thegovernment party) argued pugnaciously (but unsuccessfully) for legal regulationguaranteeing a larger legal protection.5

Those members of the press which represented the values of lawyers also supported theverbosity principle. In accordance with the editorial article in Magyar Igazsagiigy(Hungarian Justice), in case of asserting the principle of verbosity "there would be manymore prospects for clearing up questions complicated and obscure of financialadministration and being publicized. However, in this way we will become dependent onthe opinion of the financial administrative court with regards to studying the cases of anambiguous nature."6

4 Az allando penziigyi bizottsag jelentese a ,,penziigyi kozigazgatasi birosagrol" szolo torvenyjavaslattargyaban. Az 1881. szeptember 24-re hirdetett Orszaggyules Nyomtatvanyai. Kepviselohaz.[Report of the permanent financial committee on the subject of the bill concerning ,,fmancialadministrative court". Printed Papers of the Parliament called together on September 24th, 1881.House of Representatives] Iromanyok. XIV. kot. 528. sz. Pesti Konyvnyomda. Budapest, 1883. P.162-175. 1883. marczius 12. (in further: Financial Committee, 1883.) P. 164.

5 Az 1881. szeptember 24-re hirdetett Orszaggyules Nyomtatvanyai. Kepviselohaz. [Papers of theParliament called together on September 24th, 1881. House of Representatives] Nyomtatvanyok.Kepviselohaz. Naplo. Szerk.: P. Szathmary Karoly. Budapest, 1883. XII. kot. [in further: Debate ofthe House of Representatives, 1883.] P. 326., 353.

6 Penzugyi kozigazgatasi birosagrol. Magyar Igazsagiigy. [On the financial administrative court.Hungarian Justice] (Szerk.: Dr. Tarnai Janos) XXI. kot. Budapest, 1884. P. 183.; The contemporarypress dealt also with the deficiencies of the second bill. ,,Procedure in front of the court can hardly

__I:lre process oftfer ofthe court offinrrncitrl administrative jurisdiction (I334-!336,1 _ 1'25‘

court with one level concerning tart and fee cases. In the opinion of the committee theprocedure enabling the mutual hearing of the parties cannot be required there where “clientsshould be called from all parts of the country [to Budapest] and kept here for days becauseof trivial tan and fee matters." “In most cases, the nice guarantee and the advantage ofverbal, contradictory processes would turn here into a disadvantage. On the other hand,cases demanding a swift settlement would only be delayed, since the er-recution could not besuspended, to the disadvantage and damage of clients, and their settlement would only behindered.” The body foturd the procedural legal guarantees of the code of civil proceduresufficient. Only the written system was considered to be acceptable in the plarmedprocedtue of administrative corutfl

However, the judicial conunittee definitely aligned to the principle of facultativeverbosity, guaranteeing more integral legal aid. In this system the verbal procedure was notcompulsory. However, clients had the chance to formulate their arguments verbally beforethe cotut pleading in writing.

In accordance with the body representing the more developed legal culture, it must besaid that the system of a “speaker” delivering written material cannot completely guaranteethat the controversial question in litigation is made completely aware to the judging court inits entirety. Written material is reported differently by speakers according to their ardor ander-tpertise. Further, if clients cannot react to the remarks made, the court cannot fully graspthe reality of litigation in every case. Additionally, in those cases brought before thefinancial administrative court, the severe written fornr would be detrimental also because —as the reasoning went on - in this competence the whole written litigation apparel ismissing and only one court can decide the controversial question sentential-wise, whichmakes the final judgment. The president of the judicial committee, Istvan Teleszky [of thegovernment party) argued pugnaciously (but ruisuccessfully} for legal regulationguaranteeing a larger legal protections

Those members of the press which represented the values of lawyers also supported theverbosity principle. In accordance with the editorial article in Magyar lgaasagtigy(Hungarian Justice), in case of asserting the principle of verbosity “there would be manymore prospects for clearing up questions complicated and obscure of financialadministration and being publicised. However, in this way we will become dependent onthe opinion of the fmancial administrative court with regards to studying the cases of anambiguous nature.“i

4 Aa allando penaiigyi biaotts:-ig jelentese a ,,penzi.lgyi ktiaigazgatasi birrisagrol“ scold tiirvenyjavaslattargyaban. As 1331. sacptember 24-re hirdetett Orsaaggyliles Nyorntatvanyai. Kepvlselfihdz.[Report of the pennanent financial committee on the subject of the hill concerning ,,finarrcialadministrative court". Printed Papers of the Parliament called together on September 24th, 1331.I-louse of Representatives] lromanyok. XIV. loot. 523. ss. Pesti Kiinyvnyomda. Budapest, 1333. P.162-125. 1333. marcsius 12. (in further: Financial Committee, 1333.) P. 164.

5 A1 1331. szeptember 24-re hirdetett Orssaggyiiles Nyomtatvanyai. Kepviseliihaz. [Papers of theParliament celled together on September 24th, 1331. House of Representatives] Nyomtatvanyol-t.Kepviseliihaa. Naplo. S:-;erk.: P. Saatluntiry Karoly. Budapest, 1333. XII. lclit. [in further: Debate ofthe Hotrse of Representatives, 1333.] P. 326., 353.

E’ Penzilgyi kdzigaagatasi birosagrol. Magyar lgazsdgtigy. [On the financial administrative court.Hungarian Justice] [Sserk.: Dr. Tarrrai Janos) XXI. lolit. Budapest, 1334. P. 133.; The contemporarypress dealt also with the deficiencies of the second bill. ,,Procedure in front of the court can hardly

124 Istvcm Stipta

During the debate in the House of Representatives concerning the regulation of theprocess, the majority of the government party insisted on those views espoused by thefinancial committee. Their representatives referred to the fact that in the administrativecourt procedure, one party is not in opposition with another party, rather that "thousands ofparties" are in opposition with the Treasury. The financial apparatus would be completelyoverburdened by the representation of state interest and the litigation statement, mandatoryin cases. Verbosity - as they argued - would require the participation of attorney massesthat would make the procedure significantly more expensive, even to the unofficial parties.The further argument of the proponents of the written procedure was that neither acceptedthe amendment acts to the code of civil procedure (Act Nr. 59 of 1881), namely thatverbosity would be even less reasonable with regards to a court operating in theadministrative field. The representatives referred also to the notion that the party concernedcould state in person in the administrative bodies making the basic decision (in thecommittees assessing taxes and speaking). During the debate in the House ofRepresentatives the issue also arose, that in the event of permissive regulation of theprocedural law a formal polemic might be established between the judge and the partywhich could undermine the authority of the court.7

Financial minister Gyula Szapary specifically insisted on the procedural part of hisproposition. He reasoned that in the event of the introduction of the verbal system, tentimes that many judges should be employed instead of the four to six, taken earlier intoaccount.8 The proposition of the judicial committee, which was more interested in theaspects of legal protection, was not even supported by judicial minister Tivadar Paulerpresent during the session of the House of Representatives when it was introduced. Paulersat through the fierce debate with demonstrative aloofness, silently. Among the members ofthe government party, only Isrvan Teleszky agreed with Dezso Szilagyi (of the opposition)who considered the enforcement of verbosity as the minimum of the rule of law.9 However,the House of Representatives did not accept the conciliatory proposal of Szilagyi either,which would have ensured the option of verbal reply, but only for the unofficial party in thetrial.10

be imagined without the hearing of the opposition parties, the submission of the arguments andcounter-arguments and their discussion by the parties. Nevertheless, in accordance with theprocedure aimed at the court which will only judge based on the data that are collected - verynaturally - by the financial organs as regards achieving the financial goal, the opponent, theindividual citizen can present his point of view only in the appeal against the decree. However,without the court judging not the actual circumstances illuminated by not the mutual submission ofthe parties or clarified from every aspect but only from the aspect of finances, based on datacollected from one-sided interest." Toth, Dezso: A penzugyi kozigazgatasi birosag. [The financialadministrative court] Jogtudomanyi Kozlony [Journal of Jurisprudence] XVII. evf. 11. sz. (1882.marcius 17.)

7 Debate of House of Representatives 1883. P. 373. Speech of Jozsef Gall.8 Debate of House of Representatives 1883. P. 357.9 Debate of House of Representatives 1883. P. 353-360., 364-375.10 After the rejection Dezso Szilagyi noted in a bitter way: ,,We should watch out well when we want

to patronize people. We should not make the representation of their justice impossible for theirreassurance." Debate of House of Representatives. 1883. P. 356.

I24 Isrvdn Ettore

During the debate in the House of Representatives concerning the regulation of theprocess, the majority of the goverrunent party insisted on those views espoused by thefinancial committee. Their representatives referred to the fact that in the administrativecotut procedure, one party is not in opposition with another party, rather that “thousands ofparties“ are in opposition with the Treasury. The financial apparatus would be completelyoverburdened by the representation of state interest and the litigation statement, mandatoryin cases. Verbosity - as they argued - would require the participation of attorney massesthat would make the procedure significantly more expensive, even to the rmoificial parties.The further argument of the proponents of the written procedure was that neither acceptedthe amendment acts to the code of civil procedure (Act Nr. 59 of 1331), namely thatverbosity would be even less remonable with regards to a court operating in theadminisnative field. The representatives refened also to the notion that the party concemedcould state in person in the administrative bodies making the basic decision (in thecommittees assessing taxes and speaking). During the debate in the House ofRepresentatives the issue also arose, that in the event of permissive regulation of theprocedural law a formal polemic might he established between the judge and the partywhich could tmdermine the authority of the court?

Financial minister Gyula Szapary specifically insisted on the procedural part of hisproposition. He reasoned that in the event of the introduction of the verbal system, tentimes that many judges should be employed instead of the four to six, taken earlier intoaccormti The proposition of the judicial committee, which was more interested in theaspects of legal protection, was not even supported by judicial minister Tivadar Paulerpresent during the session of the House of Representatives when it was inuoduced. Paulersat through the fierce debate with demonstrative aloofiress, silently. Among the members ofthe govermnent party, only lstvan Teleszky agreed with Dezsti Szilagyi {of the opposition)who considered the enforcement of verbosity as the minimtnn of the rule of law.5' However,the House of Representatives did not accept the conciliatory proposal of Szilagyi either,whicp] would have ensured the option of verbal reply, but only for the rmofficial parry in thetrial.

1

be imagined without the hearing of the opposition parties, the submission of the arguments andcorrrrter-argrunents and their discussion by the parties. Nevertheless, in accordance with theprocedure aimed at the court which will only judge based on the data that are collected —- verynaturally — by the financial organs as regards achieving the financial goal, the opponent, theindividual citizen can present his point of view only in the appeal against the decree. However,without the court judging not the actual circumstances illuminated by not the mutual submission ofthe parties or clarified from every aspect but only from the aspect of finances, based on datacollected from one-sided interest.” Toth, Dezsii: A penztigyi kozigazgatasi birosag. [The financialadministrative court] Jogtudomanyi Kiizltiny [Journal of Jurisprudence] XVII. evf. 11. sz. (1332.mtircius 1?.)

I Debate of House of Representatives 1333. P. 323. Speech of Jdzsef Gall.E Debate of House of Representatives 1333. P. 35?.I Debate of House of Representatives 1333. P. 353-36-1]., 364-325."3 Afier the rejection Dezsd Szilagyi noted in a bitter way: ,,We should watch out well when we wantto patronize people. We should not make the representation of their justice impossible for theirreassurance.” Debate of House ofRepresentatives. 1333. P. 356.


The basic categories of the act (plaintiff, complaint, deadlines)

The law enacted left essential procedural legal definitions unexplained. It called everytype of legal remedy appeal. Thus, it did not distinguish demand on legal protection basedon merit from petition for remedy containing formal (procedural) objection. Not even thelegal content of the expression complaint appeared in the act itself.11 The norm text did notclarify either whether appeal is extended to injuries or it can only refer to grievances. Thelegislature did not circumscribe the concerned ones in the case, nor did it give any generalguidelines to who plaintiffs can be or who has a right to enforce a claim before the court. Itdid not make a distinction between private and official complaint. Therefore, nothingappeared in the text referencing or indicating to which competences the right to complaintof the administrative organs is extended. It is precisely the experiences of the operation ofthe financial administrative court, according to which the provision formulated in the Art.84. Act Nr. 26 of 1896 was enacted, that ensured the right to complaint in favor of theprotection of the competences of the organs and the public interest of state (Treasury),too.12 The obvious deficiency of the regulation was that it did not regulate the proceduralrights of those third parties interested and did not provide the duties of the court inconnection with that, either.

In accordance with Article 6 of the Act the appeals addressed to the financialadministrative court had to be handed in within 30 days counted from the delivery of thedecision constituting the object of complaint. This deadline was modified from theoriginally planned 15 days to 30 days based on the proposition of the financial committee.13

However, the extension of the deadline made the administrative legal protection slower.Later, in the general administrative court, Act Nr. 30 of 1929 modified this, stating that thecomplaint could be handed in within the 15 following days of the delivery (announcement)of the adverse judgment. The petition of appeal of financial subject against the decision ofthe administrative committee had to be handed in to the president of the committee; againstto the decision of the speaker committee, to the royal tax controller; against the decision ofthe royal finance directorate, to the territorially responsible finance directorate. The act left

11 The expression complaint appeared 16 times and the expression appeal 415 times in the 73 casesand 2192 orders - published in print - adopted by the financial administrative court between 1884and 1896. The word complaint appeared not with an independent legal content but as a synonym inthe terminology of the court.

12 Dr. Pakey, Lajos: A kozigazgatasi birosag elotti eljarasrol. [On the procedure in front of theadministrative court] In: A magyar kozigazgatasi birosag 50 eve (1897-1949). [In: 50 years of theHungarian administrative court, 1897-1949.] Kiadja: A Magyar Kozigazgatasi Birosag. Budapest,1947. P. 50.; Dr. Voros, Erno-Dr. Lengyel, Jozsef: A kozigazgatasi birosagi torveny magyarazata.A m. kir. Kozigazgatasi Birosag anyagi jogi, hataskori es eljarasi joggyakorlata altalanoskozigazgatasi, ado- es illetekugyekben. II. kot. [The explanation of the act on administrative court.The legal practice of the Hungarian Royal Administrative Court concerning substantive law,competence and procedure. Volume 2.] Budapest, 1935. P. 1131-1132.

13 Az 1883:XLIII. tc. a penziigyi kozigazgatasi birosagrol. Jegyzetekkel, utalasokkal es magyarazattalellatta dr. Moder Tibor. [The Act Nr. 43 of 1883 on the financial administrative court. Notes,references and explanations added by Moder, Tibor dr.] Budapest, 1883. (further: Moder 1883.) P.10.

The preccss errfer efrhe ceurt effinenciru’ eelmipistretivejurtseficrien 1“IS8e"—lS96,1 _ I25

The basic categ-nries cf the act (plaintiff, cemplaint, deadlines)

The law enacted left essential preccdnral legal definiticns unexplained. It called everytype cf legal remedv appeal. Thus, it did net distinguish demand en legal pretectien baseden merit trem petitien fer remedy ecntaining fermal {preeednrall ebjectien. Net even thelegal centent ef the expressien cemplaint appeared in the act itself.“ The nemi text did netclarify either whether appeal is extended te injuries er it can enljv refer te grievances. Thelegislature did net circtnnscribe the cencemed enes in the case, ner did it give any generalguidelines te whe plaintiffs can be er whe has a right te enferce a claim hefere the ceurt. Itdid net make a distinctien between private and efiicial cemplaint. Therefere, nethingappeared in the text referencing er indicating te which cempetences the right te cetnplaintef the administrative ergans is extended. It is precisely the experiences ef the eperatien efthe fmancial administrative ceurt, accerding te which the previsien fermulated in the Art.84. Act Nr. 26 ef 1896 was enacted, that ensured the right te cemplaint in faver ef thepretectien ef the cempetences ef the ergans and the public interest ef state (Treasury),tee.“ The ehvieus deficiency ef the regulatien was that it did net regulate the preccduralrights ef these third parties interested and did net previde the duties ef the ceurt incemtectien with that, either.

In accerdance with Article 6 cf the Act the appeals addressed te the fmancialadministrative ceurt had te he handed in within 313 days ceunted frem the deliver-_v ef thedecisien censtituting the ebj ect ef cemplaint. This deadline was medified item theeriginally plarmed 15 days te 30 days based en the prepesitien ef the financial cermnittee.“Hewever, the extensien ef the deadline made the administrative legal pretectien slewer.Later, in the general administrative ceurt, Act Nr. 30 cf 1929 medified this, stating that thecemplaint eeuld be handed in within the l5 fellewing days cf the deliverv (anneuncementlef the adverse judgment. The petitien cf appeal cf fmaneial subject against the decisien cfthe administrative cemmittee had te be handed in te the president ef the cemmittee; againstte the decisien ef the speaker cemmittee, te the reyal tax centreller; against the decisien cfthe reval finance directerate, te the territerially respensihle fmance directerate. The act left

H The expressicn cemplaint appeared lti times and the expressien appeal 415 times in the T3 casesand 2192 erders — published in prir1t— adepted by the fmancial administrative ceurt between 1834and 1396. The werd cemplaint appeared net with an independent legal centent but as a svnenjvtn inthe terrninelegv ef the ceurt.

12 Dr. Pal-rejv, Lajes: A ktixigazgatdsi birdsdg cl-:':i=tti eljarasrel. [On the precedure in frent ef theadministrative ceurt] In: A magvar kfixigaegatasi birdsag SUI éve (ISM-I9-ta}. [In: St] vears ef theHungarian administrative ceurt, 139?-1949.] Kiadja: A lvlagrar Kexigazgatasi Biresag. Budapest.194?. P. 513.; Dr. Verde, Ernd--Dr. Lengvel, Jeasef: A kdxigazgatasi biresagi tdrvcnjr magvaraaata.A m. kir. Kijxigaxgatasi Biresag anvagi jegi, hataskeri es eljarasi jeggrakerlata altalanesleijxigaxgatasi, ade- es illetektigvekben. II. ket. [The explanatien cf the act en administrative ceurt.The legal practice cf the Hungarian Revel Administrative Cemt cencerning substantive law,cempetence and precedurc. Velume 2.] Budapest, 1935. P. l 131-1 I32.

it Az 1ss3;xL111.a=. a penziigyi kdzigazgatasi biresagrdl. Jegvzetekkel, etalasekkal es magvaraaanalellatta dr. Meder Tiber. [The Act Nr. 43 ef i333 en the financial administrative ceurt. Hetes,references and explanatiens added by lvleder, Tiber dr.] Budapest, 1333. (further: Ivleder 1333.] P.llll

126 Istvdn Stipta

the question unanswered as to whether the petition of the party involved can be directlypassed on to the administrative court.

If the last day of the deadline to appeal fell on a Sunday or on any other holiday inaccordance with the Gregorian calendar, the petition of appeal could still be handed in onthe next work day (contemporary expression: common day). The date of mailing wasconsidered to be the date of hand-in of the appeals which arrived via mail. Theadministrative authorities submitted the appeals handed in within the lawful deadline to thefinancial administrative court. Nevertheless, they had to refuse by summons the appealswhich were received late. The order was equitable, especially if we compare it to Section 1Article 54 of Act Nr. 30 of 1929, according to which the authority of first instance couldrefuse the remedy as "unauthorized". The administrative organs could not refuse thepetitions of remedy (in accordance with the regulation of the Act of 1883) even with thelack of competence of the administrative court, either. Article 7 of the act (passed to thecommon proposition of the financial and judicial committees) enabled an appeal against thesummons of authority refusing the appeal within 15 days from the delivery of the decisionhanded in, in due time. Article 98 of Act Nr. 26 of 1896 called this remedy "resort",making a distinction from the complaint referring to the merits of the case.14

Additionally, Act Nr. 43 of 1883 regulated the possibility of application for extensionahead of time. In accordance with this, if the party or his legal representative could nothand in the appeal referring to the merits of the case within the lawful deadline because ofan obstacle outside of his control and not able to be overcome by him, he could be excused.The financial administrative court decided in the event that this happened, as to whether themissing of the deadline was warranted or not. If the legal protection body approved theapplication for extension, or it qualified the appeal as handed in within the lawful deadlineby changing the refusal order, it could immediately take the case being appealed underreview. The provision was put in unchanged form in the act of the general administrativecourt.

The appeal starting the procedure of the administrative court had to be factual, theperson asking for legal protection had to unambiguously have been detrimentally effectedby the decisions, and had to have objections to its sections. Nevertheless, the process wassimplified insofar that, if such facts could be gleaned from official documents referring to acase of appeal or in connection with one, they did not have to be proven by the privateparty. These documents did not have to be enclosed; it was enough to only refer to them. Inthe appeal the party complaining could also refer to new facts. This provision wasimportant also from a theoretical aspect. The procedure before the administrative courtcould be begun on a new basis, based on the strength of those circumstances which hadarisen since the new evidences or passing of the basic ruling (Article 8). Those provisionswere an important means of procedural elucidation of the material truth.15

In accordance with the first sentence of Article 9 of the act "the president of theadministrative committee, the royal tax controller and the finance directorate were obliged

14 The financial administrative court applied the designation 'resort' without any legal ground. In itsdecisions with conceptual contents the court used this expression fifty times, distinguishing incontent between the appeal handed in concerning a case on the merits and the resort containingprocedural objections.

15 Moder 1883. 11. p. (Reasoning to Article 8.)

J26 Istvrin Stiprc _

the questien tnranswered as te whether the petitien ef the party invelved can be directlypassed en te the administrative ceurt.If the last day ef the deadline te appeal fell en a Sunday er en any ether heliday in

accerdance with the Gregerian calendar, the petitien ef appeal ceuld still be handed in enthe next werlr day {centemperary expressien: cenunen day). The date cf mailing wascensidered te he the date ef hand-in ef the appeals which arrived via mail. Theadministrative autherities submitted the appeals handed in within the lawful deadline te thefmancial administrative ceurt. Nevertheless, they had te refilse by sununens the appealswhich were received late. The erder was equitable, especially ifwe cempare it te Sectien lArticle 54 ef Act Nr. 30 ef 1929, accerding te which flte autherity ef first instance ceuldrefuse the remedy as “u11autheriaed". The administrative ergans ceuld net refuse thepetitiens ef remedy (in accerdance with the regulatien ef the Act ef 1333) even with thelack ef cempetence ef the administrative cetut, either. Article T ef the act [passed te thecemmen prepesitien ef the fmancial and judicial cemmittees) enabled an appeal against thestnnnrens ef autherity refusing the appeal within 15 days fiem the delivery ef the decisienhanded in, in due time. Article 93 ef Act Nr. 26 ef 1396 called this remedy “resert”,melting a distinctien hem the cemplaint referring te the merits efthe case.“

Additienally, Act Nr. 43 ef 1883 regulated the pessibility ef applicatien fer extensienahead ef time. In accerdance with this, if the party er his legal representative ceuld nethand in the appeal referring te the merits ef the case within the lafil deadline because efan ebstacle eutside ef his centrel and net able te be everceme by him, he ceuld be excused.The financial administrative cetnt decided in the event that this happened, as te whether themissing ef the deadline was warranted er net. if the legal pretectien bedy approved theapplicatien fer extensien, er it qualified the appeal as handed in within the lawful deadlineby changing the refusal erder, it ceuld immediately take the case being appealed underreview. The previsien was put ir1 tnrchanged ferm in the act ef the general administrativeceurt.

The appeal starting the precedure ef the administrative ceurt had te be factual, thepersen asking fer legal pretectien had te Lmambigueusly have been detrimentally effectedby the decisiens, and had te have ebj ectiens te its sectiens. Nevertheless, the precess wassimplified insefar that, if such facts ceuld he gleaned frem efficial decuments referring te acase ef appeal er in cennectien with ene, they did net have te be preven by the privateparty. These decuments did net have te be enclesed; it was eneugh te enly refer te them. Inthe appeal the party cemplaining ceuld alse refer te new facts. This previsien wasimpertant alse frem a theeretical aspect. The precedure hefere the administrative ceurtceuld be begun en a new basis, based en the strength ef these circumstances which hadarisen since the new evidences er passing ef the basic ruling {Article 8). These previsienswere an impertant means ef precedural elucidatien ef the material truth.“

In acce.rdance with the first sentence ef Article 9 ef the act “the president ef theadministrative cemmittee, the reyal tax centreller and the finance directerate were ehliged

M The financial administrative ceurt applied the designatien ’resert’ witheut any legal greund. In itsdecisiens with cenceptual centents the ceurt used this expressien fifty times, distinguishing incentent between the appeal handed in cencerning a case en the merits and the resert centainingprecedural ebjectiens.

15 lvleder rsss. 11. p. [Reasening te Article s.)

The process order of the court of financial administrative jurisdiction (1884—1896) 127

to introduce the appeal arrived to him within lawful time to the financial administrativecourt within 8 days counted from the arrival with the trial documents enclosed." Originally,in the proposals of the minister, this period was 15 days. The shorter deadline wassuggested by Adam Lazar during the debate in the House of Representatives.16 The contentdeficiency of the provision was that it did not require the explanation of the decision fromthe authorities, or as the revising Act Nr. 26 of 1896 formulated, the enclosing of the"informing document". As the argumentation of the decisions of the authorities was oftenformal, courts could become acquainted with the factual background of those samedecisions as well as the motives behind those decisions; this was the key from the aspect ofreview only after long correspondence.

If the appeal was submitted by the tax controller in the representation of the treasuryagainst the decision of the administrative or tax speaker committee, he was obliged to sendits certified copy to the party obliged to pay a tax or fee and to enclose the certificate ofposting or certificate of delivery to the appeal. This way of delivery -which provided aguarantee to the private party - was also suggested by Adam Lazar (of the opposition) andalso supported by the committee speaker Sandor Hegediis (of the government party).17

The party concerned could also submit the remarks of the representative of the treasuryon the appeal directly to the financial administrative court. The petition referring to this hadto be forwarded to the sentencing body within 30 days following the posting of the taxcontroller's letter and its delivery. Before the end of this deadline the case could not be triedon merit by the financial administrative court. Those remarks which arrived after the 30-day-deadline could not be taken into consideration during the trying of the appeal. Thisprovision made it clear that the legislature considered the procedure to be written andgrounded in swift decisions based on the closed system of deadlines.18

In accordance with Article 10 of the act, the appeal submitted to the financialadministrative court had a delaying force only in cases where that was specifically ordainedby the act.19 However, the appealing party could ask for respite of performance from thefinancial minister through the administrative authority concerned, during the hand-in of theappeal or after that - with an extra petition. The minister was obliged to permit the respite —if the party was "irreplaceably damaged" by the execution and if the interest of the statetreasury was assured. This was an important provision but it regulated the procedure of

16 Debate of House of Representatives 1883. P. 350.17 Debate of House of Representatives 1883. P. 352. The final version of the law text (with the same

content as the representative's proposal) was also supported by the members of the Upper House.In: Az 1881-ik ev szeptember 24-re kihirdetett Orszaggyiiles Nyomtatvanyai. [Printed Papers of theParliament announced on September 24, 1881.] Forendi Haz. Naplo. I. kot. Szerk.: Maszak Hugo.Pesti Konyvnyomda, 1883. P. 526. (In further: Debate of the Upper House, 1883.); Moder 1883. P.13. (Reasoning to Article 9.)

18 The copy of the appeal did not have to be disclosed to the party if the tax inspector verbally statedthe appeal during the pronouncing the decision (in the presence of the party subject to taxation andfees) and declared that he does not want to reason the appeal in written form.

19 Like this was Act Nr. 44 of 1883 on tax management, according to Article 8 of which appeals canbe of delaying effect only then, if "in the procedure of the committee the rules of the act areviolated. In these cases the committee of appeal cannot deliver orders on the merits if the breach ofform mentioned is seen as proven but it is obliged to annul the order appealed and to order theretrial of the case."

__ Tireprecess erder efthe ceurt effiueneiel ndministretivejurisdictien (I334-1’31'-id) .l_2F

te intreduce the appeal arrived te him within lawful time te the financial administrativecetut within 3 days ceturted frem the arrival with the trial dectuuents enclesed." Originally,in the prepesals cf the minister, this peried was 15 days. The sherter deadline wassuggested by Adam Lazar during the debate in the Heuse efRepresentatives.]'5 The cententdeficiency ef the previsien was that it did net require the explanatien ef the decisien fremthe autherities, er as the revising Act Nr. 26 ef 1396 fennulated, the enclesing ef the“inferming dectnnent”. As the argumentatien ef the decisiens ef the autherities was eflenferrnal, ceurts ceuld beceme acquainted with the factual backgreund ef these samedecisiens as well as the metives behind these decisiens; this was the hey fiem the aspect efreview enly after leng cerrespendence.If the appeal was submitted by the tax centreller in the representatien ef the treasury

against the decisien ef the administrative er tax speaker cemrnittee, he was ebliged te sendits certified cepy te the party ebliged be pay a tax er fee and te enclese the certificate efpesting er certificate cf delivery te the appeal. This way ef delivery —which previded aguarantee te the private party — was alse suggested by Adam Lazar (cf the eppesitien) andalse supperted by the cemmittee speaker Sander Hegedfis {cf the gevermnent party)"

The party cencerned ceuld alse submit the remarks ef the representative cf the treasuryen the appeal directly te the financial administrative cerni. The petitien referring te this hadte be ferwarded te the sentencing bedy within 30 days fellewing the pesting ef the taxcent:rcller’s letter and its delivery. Befere the end ef this deadline the case ceuld net he trieden merit by the financial administrative ceurt. These remarks which arrived after the 30-day-deadline ceuld net be taken inte censideratien dining the trying ef the appeal. Thisprevisien made it clear that the legislature cermidered the precedure te be written andgeurnded in swift decisiens based en the clesed system ef deadlines.“

In accerdance with Article ll} ef the act, the appeal submitted te the financialadministrative ceurt had a delaying ferce enly in cases where that was specifically erdainedby the act.” Hewever, the appealing party ceuld ask fer respite ef perfermance fiem thefmancial minister threugh the administrative autherity cencenied, during the hand-in ef theappeal er after that - with an extra petitien. The minister was ebliged te permit the respite —if the party was “irreplaceably damaged” by the exccutien and if the interest ef the statetreasury was assured. This was an impertant previsien but it regulated the precedure ef

'5 Debate efHeuse ef Representatives 1333. P. 353.'7' Debate ef Heuse ef Representatives 1333. P. 352. The final versien ef the law text (with the samecentent as the representative’s prepesal] was alse supperted by the members ef the Upper l-leuse.ln: Ax 1331-ik ev saeptemher 24-re kihirdetett Drszaggyiiles Nyemtatvanyai. [Printed Papers ef theParliament anneunced en September 24, 1331.] Fdrendi I-lax. Napld. I. ktit. Szerla: lviaszdl-r I-lugd.Pesti Kenyvnyemda, 1333. P. 526. {in further: Debate cf the Upper Heuse, 1333.); lvleder 1333. P.13. [Reasening te Article 9.)

13 The cepy ef the appeal did net have te be disclesed te the party if the tax inspeeter verbally statedthe appeal during the prenernicing the decisien {in the presence ef the party subject te taxatien andfees} and declared that he dees net want te reasen the appeal in written ferrn.

lg Like this was Act Nr. 44 ct" 1333 en tax management, accerding te Article 3 ef which appeals canhe cf delaying effect enly then, if “in the precedure ef the cemmittee the rules ef the act arevielated. in these cases the eemmittee cf appeal cannet deliver erders en the merits if the breach cfferm nientiened is seen as preven but it is ebliged te annul the erder appealed and te erder theretrial ef the case."

128 Istvan Stipta

financial subjects basically along the logic of private law. Representative Miklos Ferenczisuggested in the (detailed) debate in favor of private parties that executive measures couldnot be prepared until the financial minister's decision was known. Sandor Hegedus did notaccept the proposal in the name of the financial committee because then "everyone wouldappeal", the parties would simply state that they have an irreplaceable damage so thecommon interest would be damaged and the legitimate and justified execution would fail.20

The private legal elements of the procedure

In accordance with the law, the financial administrative court tried the cases submittedto them in an open session. Its decisions were passed by the council of three, with thechairmanship of the president or his deputy pursuant to the valid acts and statutes. At leastone of the judges in the council had to be qualified to be a judge. It was a guaranteeprovision that reporters of the cases could only be judges (Article 12).

Certain provisions of Act Nr. 54 of 1868 had to be applied in the decision makingprocess of the administrative court. In accordance with this, the recital (presentation) of thetrial documents was public. So that the parties and audience remained informed, the list ofthe cases placed in the agenda had to be posted in the court three days before theirpresentation. It was not necessary to inform or invite the parties. Also during the procedureof the financial administrative court, the rules of exclusion applied in private legal trials,had to be enforced. In accordance with this, the judge could prescribe the exclusion of theaudience at the request of the parties or of its own motion if he found that necessary "forthe public morals" or if such data arose during the trial that could endanger the reputationor interest of either party if they were made public. Against the order made in the event ofthe enforcement of the refusal or exclusion of publicity, nobody could apply for legalremedy.

Similarly with the contemporary rules of civil proceedings, parties and theirrepresentatives could appear on the trial accompanied by two invited people. Furthermore,they could also appear/remain even if the court excluded the audience of its own motion orat the request of the parties. The rules of civil legal procedure referred to the rules ofprocess as well. According to this, their representatives and the audience were obliged toabstain from interruption, comments, and expression of approval or disapproval. Those whobroke these rules could be ordered to leave the trial or court room - after an unsuccessfulcalling to order. The counsel, the verdict and its verification happened in closed session, thepronouncing of the verdict and the reasoning happened as often as possible in the samesession but "under all circumstances" in public. (Articles 104-106 of Act Nr. 54 of 1868).

In accordance with Article 21 of the Act concerning the financial administrative court,the verdict could not reach beyond the petition of the parties. In connection with that, JozsefVidliczkay objected in the detailed debate of the House of Representatives that thisprinciple is only applied to private legal cases since it was anchored by Article 248 of thecode of civil procedure (Act Nr. 54 of 1868). "However, in this case the financial court hasto administer justice of its own accord in the matter of tax paying in accordance with the

20 Debate of House of Representatives 1883. P. 352-353; Moder 1883. P. 13. (Reasoning to Article10).

I28 __ lr.iflF£;ltt_i5'Efl!JItI

financial subjects basically along the logic of private law. Representative Miltios Eerencaisuggested in the (detailed) debate in favor of private parties that executive measures couldnot be prepared until the financial minister’s decision was known. Sandor Hegediis did notaccept the proposal in the name of the financial committee because then “everyone wouldappeal", the parties would simply state that they have an irreplaceable damage so thecommon interest would be damaged and the legitimate and justified execution would fail?“

The private legal elements of the procedure

In accordance with the law, the financial administrative court tried the cases submittedto them in an open session. Its decisions were passed by the cotmcil of three, with thechairmanship of the president or his deputy pursuant to the valid acts and statutes. At leastone of the judges in the council had to be qualified to be a judge. It was a guaranteeprovision that reporters of the cases could only be judges (Article 12).

Certain provisions of Act Nr. 54 of 1368 had to be applied in the decision makingprocess of the administrative court. in accordance with this, the recital (presentation) of thetrial documents was public. So that the parties and audience remained informed, the list ofthe eases placed in the agenda had to be posted in the court three days before theirpresentation. It was not necessary to inform or invite the parties. Also during the procedureof the financial administrative court, the rules of exclusion applied in private legal trials,had to be enforced. In accordance with this, the judge could prescribe the exclusion of theaudience at the request of the parties or of its cum motion if he found that necessary “forthe public morals" or if such data arose during the trial that could endanger the reputationor interest of either party if they were made public. Against the order made in the event ofthe enforcement of the refirsal or exclusion of publicity, nobody could apply for legalremedy.

Similarly with the contemporary rules of civil proceedings, parties and theirrepresentatives could appear on the trial accompanied by two invited people. Furthermore,they could also appearfremain even if the court excluded the audience of its own motion orat the request of the patties. The rules of civil legal procedure referred to the rules ofprocess as well. According to this, their representatives and the audience were obliged toabstain fiom interruption, comments, and expression of approval or disapproval. Those whobroke these rules could be ordered to leave the trial or court room — after an unsuccessfulcalling to order. The counsel, the verdict and its verification happened in closed session, thepronouncing of the verdict and the reasoning happened as often as possible in the samesession but “under all circurnstances” in public. {Articles 104-106 ofAct Nr. 54 of 1363).

In accordance with Article 21 of the Act concerning the fnancial administrative court,the verdict could not reach beyond the petition ofthe parties. In connection with that, JoxsefVidliczltay objected in the detailed debate of the House of Representatives that thisprinciple is only applied to private legal cases since it was anchored by Article 243 of thecode of civil procedure {Act Nr. 54 of 1868}. “However, in this case the financial court hasto administer justice of its own accord in the matter of tax paying in accordance with the

in Debate of House of Representatives 1333. P. 352-353; Moder 11383. P. 13. [Reasoning to Articleltl}.


act."21 Contrary to this, the contemporary legislatures did not extend the principle of theoperation of law onto the court stage of the administrative legal protection.

The order and means of evidence

During the debate of the House of Representatives Adam Lazar proposed thefollowing: Article 13 should be complemented so that the administrative court ,,decides inthese cases by free deliberation of evidence."22 The House of Representatives declined theproposal, although the possibility for the free deliberation of evidence had already beenensured by the legislation. In accordance with Article 15 of Act Nr. 25 of 1883 concerningusury and detrimental credit transactions, courts had not been bound by the ,,measures oflaws concerning the complexity of evidence(s) during the determination of statement offacts of usury."

Article of 14 of the act also dealt with matters of principle. Regarding this, Article 19 ofAct Nr. 4 of 1869 is normative in the field o f , judging the validity of acts and ordersadopted by the delegation of acts", but in a restrictive sense, represented in Article 10 ofAct Nr. 40 of 1879. In accordance with the cited regulation of the Act of 1869 on thejudicial powers, the judge ,,is obliged to proceed and pass judgments in pursuance of acts,orders established based on acts and pronounced and the conventions having legal force.The judge cannot question the validity of acts promulgated properly. However he decideson the legality of orders in several legal cases." In accordance with the previouslymentioned Article 10 of Act Nr. 40 of 1879 concerning tresspasses, the court is also entitledto decide on the legality of those during applying the order of the minister or statutes oncertain cases. Nevertheless, their necessity or expediency (Article 19 of Act Nr. 4 of 1869)cannot be criticized." In accordance with the Act of 1879 ,the court could not examinewhether the body was convened properly in the event of enacting the statute of localauthorities or the town. Neither could they examine whether the passing of the decision wasmade according to the rules or not.23 In this rule was reflected the firm point of view thatthe necessity and expediency of adminsitrative norms could not be the subject of debate inlegal cases brought before the administrative court.

Contrary to this however, Article 16 of the act concerning the financial administrativecourt, enabled the reparation of procedural mistakes made both during passing of theadministrative resolution, as well as in the procedure before the passing of the decision.Remonstrances of clients in connection with this could be lodged independently or withinthe framework of appeallation concerning the merits of the case. In the event of a breach ofform ,the financial adminsitrative court was entitled to annul the judgment appealed and theresult of the previous procedure and to order a new decision-making process (or maybe anew procedure). If the adminsitrative court exceeded its legal powers or neglected animportant procedural rule which made the decision reached in the case invalid, then thefinancial administrative court could annul the decision made and the previous procedureeven then if the breach of form was not objected to in the appeal submitted. The decision

21 It really occured that the party asked the court for less tax write offs than the ammount legally due.Debate of House of Representatives 1883. P. 390.

22 Debate of House of Representatives 1883. P. 367.23 Debate of House of Representatives 1883. P. 375-376.

The process orrr'cr_rjtlre epart offitrnnciarladministrativejurisdiction {’l3S4—l35ld,l I29

act.”2' Contrary to this, the contemporary legislatures did not extend the principle of theoperation of law onto the court stage of the administrative legal protection.

The order and means of evidence

During the debate of the House of Representatives Adam Lazar proposed thefollowing: Article 13 should be complemented so that the administrative court ,,decides inthese cases by free deliberation of evidenceffi The House of Representatives declined theproposal, although the possibility for the free deliberation of evidence had already beenensured by the legislation. ln accordance with Article 15 ofAct Nr. 25 of I883 concemingusury and detrimental credit transactions, courts had not been botmd by the ,,mea.sures oflaws conceming the complexity of evidencets) during the determination of statement offacts of usury."

Article of 14 of the act also dealt with matters of principle. Regarding this, Article 19 ofAct Nr. 4 of 1369 is normative in the field of ,,judging the validity of acts and ordersadopted by the delegation of acts", but in a restrictive sense, represented in Article ll] ofAct Nr. 40 of IBT9. In accordance with the cited regulation of the Act of 1869 on thejudicial powers, the judge ,,is obliged to proceed and pass judgments in pursuance of acts,orders established based on acts and pronounced and the conventions having legal force.The judge cannot question the validity of acts promulgated properly. However he decideson the legality of orders in several legal cases.” In accordance with the previouslymentioned Article lit ofAct Nr. 40 of 13’i'9 concerning tresspasses, the court is also entitledto decide on the legality of those during applying the order of the minister or statutes oncertain cases. Nevertheless, their necessity or expediency (Article 19 ofAct Nr. 4 of 1869}carmot be criticized.” ln accordance with the Act of 18?‘? ,the court could not examinewhether the body was convened properly in the event of enacting the statute of localauthorities or the town. Neither could they examine whether the passing of the decision wasmade according to the rules or not.” in this rule was reflected the firm point of view thatthe necessity and expediency of adminsitrative norms could not be the subject of debate inlegal eases brought before the administrative court.

Contrary to this however, Article 16 of the act concerning the financial administrativecourt, enabled the reparation of procedural mistakes made both during passing of theadministrative resolution, as well as in the procedure before the passing of the decision.Remonstrances of clients in comtection with this could be lodged independently or withinthe framework of appeallation conceming the merits of the case. In the event of a breach ofform ,the financial adminsitrative court was entitled to annul the judgment appealed and theresult of the previous procedure and to order a new decision-melting process (or maybe anew procedure}. If the adminsitrative court exceeded its legal powers or neglected animportant procedural rule which made the decision reached in the case invalid, then thefinancial administrative court could annul the decision made and the previous procedureeven then if the breach of form was not objected to in the appeal submitted. The decision

‘ii It really occured that the party asked the court for less tax write offs thmt the ammount legally due.Debate ct‘ I-louse of Representatives 1383. P. 39D.

21 Debate ofHouse of Representatives 1533. P. 36?.23 Debate of House of Representatives 1833. P. 3T5-3T6.

130 Istvdn Stipta

appealed and the procedure beforehand had to be annulled even if the decision was notmade by the authority entitled to do so. In such cases, the financial administrative courttransferred the documents to the administrative court.

In accordance with Section 5, Article 16 of the act if the statement of facts "is notproperly elucidated, the financial administrative court orders the conclusion of the trial" (anextremely important principal aspect). In accordance with Article 17 detailing thedisposition, the court was entitled to direct the authority charged with the submission ofofficial data serving the completion in that case. The court was entitled to also oblige theparty to make a statement or further, to furnish new data. In those cases the court set adeadline of 30 to 60 days. The court was entitled to direct the completion of trial documentsalso in closed sessions. The judging body could decide on the procurement of thedocuments necessary to decide a case appealed. It could directly order the authoritiesconcerned to relegate the official documents. It could oblige the parties to hand in not onlythe data, but also the declarations. This provision assured broad ability to the financialadministrative court to determine the statement of those facts which were legally relevant.

During the debate of the House of Representatives, representative Ferenc Fenyvessydefiantly suggested that that text should be completed, according to which the court"appeals to the court competent in the event that it found the interrogation of witnesses andexperts necessary." The suggestion was rejected with the reason being that "this centralcourt cannot be concerned with the questioning of witnesses."

The decision making order of the court

The rules of procedure for the judicature were only mentioned briefly in the Act. Inaccordance with Article 16, the court decided that "on the decision appealed on the merits",after it had determined its competence and it had decided that the administrative bodymaking the decision was also competent and the statement of facts was also "properly"ascertained. The judging body made a decision on the merits of the case and put every otherdisposition in the summons. In accordance with Article 22, the verdict and the summonshad to be reasoned in compliance with the classical legal procedural requirements. Theverdict or summons had to be distributed to that authority for delivery and execution thatsubmitted the appeal to the court.24

The important questions of detail of the judgment mechanism were summarized by thecourt's rules of procedure based on the authorization of the act.25 In accordance with this,the president divided the documents of the legal debate awaiting judgment among thejudges for elaboration and presentation. He had to make sure that presenters had an equalwork load and that the judge presiding, received the petition(s) referring to those casesdelegated to him. Article 75 concerning the rules of procedure also prescribed that the

24 Adam Lazar believed that this provision belonged to the standing orders but his co-representativesrejected him. Debate of House of Representatives P. 1883. 391.

25 A m. kir. penzugyministernek 1921. szamu rendelete a penziigyi kozigazgatasi birosag ugyrendjetargyaban. [The order Nr. 1921. of the Hungarian Royal Minister of Finance concerning the rules ofprocedure of the financial administrative court] Magyarorszagi Rendeletek Tara. XVII. evf. 1883.IV. fuzet. Budapest, 1883. P. 1720-1743.

I _i‘t.l Istvrirn Stiprn

appealed and the procedure beforehand had to be armulled even if the decision was notmade by the authority entitled to do so. in such cases, the fmancial administrative courttransferred the documents to the administrative court.

In accordance with Section 5, Article 16 of the act if the statement of facts “is notproperly elucidated, the financial administrative court orders the conclusion of the trial“ [anextremely important principal aspect). In accordance with Article 1? detailing thedisposition, the court was entitled to direct the authority charged with the submission ofofficial data serving the completion in that case. The court was entitled to also oblige theparty to make a statement or further, to furnish new data. In those cases the court set adeadline of 3t} to til] days. The court was entitled to direct the completion of trial documentsalso in closed sessions. The judging body could decide on the procurement of thedocmnents necessary to decide a case appealed. It could directly order the authoritiesconcemed to relegate the official documents. It could oblige the parties to hand in not onlythe data, but also the declarations. This provision assured broad ability to the financialadministrative court to determine the statement of those facts which were legally relevant.

During the debate of the House of Representatives, representative Ferenc Fenyvessydefiantly suggested that that text should be completed, according to which the court“appeals to the court competent in the event that it found the interrogation of witnesses andexperts necessary." The suggestion was rejected with the reason being that “this centralcomt cannot be concerned with the questioning ofwitnesses.“

The decision making order of the court

The rules of procedme for the judicature were only mentioned briefly in the Act. lr1accordance with Article 16, the cour't decided that “on the decision appealed on the merits“,after it had determined its competence and it had decided that the administrative bodymaking the decision was also competent and the statement of facts was also “properly”ascertained. The judging body made a decision on the merits of the case and put every otherdisposition in the summons. In accordance with Article 22, the verdict and the srrrnmonshad to be reasoned in compliance with the classical legal procedural requirements. Theverdict or summons had to be distributed to that authority for delivery and execution thatsubmitted the appeal to the cotut.“

The important questions of detail of the judgment mechanism were sunnnariaed by thecourt’s rules of procedure based on the authorization of the act.“ In accordance with this,the president divided the documents of the legal debate awaiting judgment among thejudges for elaboration and presentation. He had to make sure that presenters had an equalwork load and that the judge presiding, received the petitionts) referring to those casesdelegated to him. Article T5 concerning the rtrles of procedure also prescribed that the

24 Addrn Lean believed that this provision belonged to the standing orders but his cc-representativesrejected him. Debate of House of Representatives P. 1353. 391.

“I A m. kir. pénztligrministemek 1921. sxtimu rendelete a penziigyi ktiaigazgatasi birdsag tigyrendjetargytiban. [The order Nr. 193]. of the Hungarian Royal Minister of Finance concerning the rules ofprocedure of the financial administrative court] Magyarorszagi Rendeletek Tara. xvn. evf. 1383.lit’. ftizet. Budapest, 1353. P. 1320-1343.


presenter could not change before finishing the case without any legal or other substantiatedreason. This important provision served to protect judicial independence.

The next important step of the procedure was that the presenter enclosed the documents,examined the deadline of the arrival of the petition and ordered a delaying measure - iffurther documents were needed. In accordance with this procedure, those cases deemedurgent, had to be presented. The ranking of judgment was determined by the date of filing.The fact that the cases relating to each other be judged at the same time also had to be takeninto consideration (Article 81). The deeming of legal debates as urgent necessitated that thedecision of the case arranged another or was required for the continuation of a legal debatealready in litigation. Also qualified as urgent, were those cases, in which swift measures orpresentation with a prompt settlement being enacted by a certain law.

As a rule, cases under dispute were obliged to be decided in council meeting. Thepresident of the council had to assure that the council meeting could gather on any day - ifnecessary. In accordance with Article 89 concerning the procedure, the president of thecouncil assigned the members of the council, the presenter, the voting judges and the courtclerk proceeding as a council notary. He opened and closed the session, and protected itsdignity. He ensured its order and guaranteed the council's accordance with regulations.

In the council each case had to be presented orally. The president and the members withthe right to vote were entitled to ask for the inspection and reading of the documentsconcerned. Questions could be posed to the presenter, concerning the case. As thepresentation of cases was public, the list of legal debates had to be posted in the courthousethree days before their presentation. The parties concerned, did not have to be informedabout or invited to this action (Article 94). From the public session only children and thosethat "did not appear in compliance with the dignity of the place" could be excluded. Theaudience could attend the council meeting with tickets signed by the council notary. Thenumber of these was determined by the president; the rank of sign up determined thedivision of the tickets. The parties of the case and their representatives could present in themeeting. The audience was separated from the court by a barrier and kept "in due distance".In the first row after the barrier sat the clients and their representatives (Articles 95-96).The president could order the clearing of the court-room "for curbing of the audience incase if their disorder or inappropriate behavior". In the event of assault, resistance or moreserious transgressions the person guilty could be arrested, and immediately prosecuted infront of the court (Article 97).

After the presentation of the case, the court had a closed session for deliberation (in aseparate room). If a question to decide emerged, the president allowed the debate. Thevoting was opened by the presenting judge who read the written opinion which acted as thedraft of the publication. The judge could not interrupt the presenter and the other votersduring the presentation of their opinion. Neither could he limit their freedom of speech.One of its guarantee was that he himself voted last (Article 99). The decision was madewith a majority of votes. In the event of a tie, the court decided. If the president did not takepart in any version, he had the possibility of separating the questions and ordering a vote onthem separately. Separating the questions occurred according to the "order of nature"; thefore-question had to be decided before the merits of the case, the formal question earlierthan the essence of the decision and the legal claim of the demands before its conclusion.The decision made this way was the basis for deciding the rest of the questions. This "pre-decision" had to be taken into consideration, even by those who were the minority during

Tlreprocess order ofrhe court ojffinunciol rrrihrrit-ri.rrrrrtive_,r'trrisr:l.icr‘io.*r (l33d—l'S9d,l J31!

presenter could not change before finishing the case without any legal or other substantiatedreason. This important provision served to protect judicial independence.

The next important step of the procedure was that the presenter enclosed the documents,examined the deadline of the arrival of the petition and ordered a delaying measure - iffurther documents were needed. In accordance with this procedrue, those cases deemedurgent, had to be presented. The ranking of judgment was determined by the date of filing.The fact that the cases relating to each other be judged at the same time also had to be takeninto consideration (Article 31). The deeming of legal debates as urgent necessitated that thedecision of the case arranged another or was required for the continuation of a legal debatealready in litigation. Also qualified as urgent, were those cases, in which swift measures orpresentation with a prompt settlement being enacted by a certain law.

As a rule, cases raider dispute were obliged to be decided in council meeting. Thepresident of the cotmcil had to assure that the council meeting could gather on any day — ifnecessary. In accordance with Article S9 concerning the procedure, the president of thecotmcil assigned the members of the council, the presenter, the voting judges and the courtclerk proceeding as a cotmcil notary. He opened and closed the session, and protected itsdignity. He ensmed its order and guaranteed the council’s accordance with regulations.

In the council each case had to be presented orally. The president and the members withthe right to vote were entitled to ask for the inspection and reading of the docmnentsconcerned. Questions could be posed to the presenter, conceming the case. As thepresentation of cases was public, the list of legal debates had to be posted in the courthousethree days before their presentation. The parties concemed, did not have to be informedabout or invited to this action (Article 94). From the public session only children and thosethat “did not appear in compliance with the dignity of the place“ could be excluded. Theaudience could attend the council meeting with tickets signed by the council notary. Thenumber of these was detennined by the president; the rank of sigi up determined thedivision of the tickets. The parties of the case and their representatives could present in themeeting. The audience was separated from the court by a barrier and kept “in due distance“.In the first row after the barrier sat the clients and their representatives (Articles 95-96).The president could order the clearing of the court-room “for curbing of the audience incase if their disorder or inappropriate behavior". In the event of assault, resistance or moreserious transgressions the person guilty could be arrested, and immediately prosecuted infront of the court (Article 91").

After the presentation of the case, the court had a closed session for deliberation [in aseparate room). If a question to decide emerged, the president allowed the debate. Thevoting was opened by the presenting judge who read the written opinion which acted as thedraft of the publication. The judge could not interrupt the presenter and the other votersduring the presentation of their opinion. Neither could he limit their freedom of speech.One of its guarantee was that he himself voted last (Article 99). The decision was madewith a majority of votes. In the event of a tie, the court decided. If the president did not takepart in any version, he had the possibility of separating the questions and ordering a vote onthem separately. Separating the questions occurred according to the “order of nature“; thefore-question had to be decided before the merits of the case, the formal question earlierthan the essence of the decision and the legal claim of the demands before its conclusion.The decision made this way was the basis for deciding the rest of the questions. This “pre-decision“ had to be taken into consideration, even by those who were the minority during

132 Istvdn Stipta

the deciding of the fore-question. It was an important rule that the same council had todecide on the individual questions (Article 103).

The decision was announced by the president, however until its announcement, voterscould alter their opinions. After having declared the decision, the case was considered to befinally concluded. Those "grammatical and spelling mistakes" not affecting the essence ofthe decision, could be corrected by the president (Article 101). The content of the verdictand the reasoning which led to it, were announced by the president orally and in public. Ifthis could not take place during one session, the day of pronouncement had to be madepublic by display one day earlier (Article 106). If the decision appealed was entirelyapproved by the court (concerning its content and reasoning) it was enough to simply referto the decision. However, if approval occurred based on another reason, this reasoning hadto be formulated separately. If the court changed the decision appealed entirely or partly,the decision and the reasoning had to be recomposed. Reports were made of the councilmeeting of the court where the counter-opinions with reasoning and the result of the votingwere put down in writing.

Transitional provisions (rules of procedure, scope of law)

The Council of Ministers was invested with full power for regulating the rules ofprocedure of the financial administrative court by decrees. Article 27 of the act (oddly)stated that the rules of procedure "would take measures also" so that the debated questionsof principles should be decided "in the plenary session of the financial administrative court.The agreements in principle of that session are standard until a different agreement in aplenary session is established." The rules of procedure also anchored the development ofplenary sessions called to decide the debated questions of principle, the presentation of thesubjects of the plenary session and the procedure of voting.

In accordance with this, the rules of procedure regulated the decision-makingmechanism of the plenary session (Articles 33-54). In compliance with this, this decision-making body of the court had a quorum if more than half of the total judges were presentwith the exception of the president. The whole council deliberated in closed session; for thedecision, the votes of the majority of those present were needed. In the event of debate, thepresident decided. If a question of principle emerged during the judicature, the presidenthad to convene the plenary session of the council within eight days.

In the plenary session the case was submitted by the judge who was the presenter of thecase based on the debated question of principle. His opinion was followed, occasionally bya counter motion and then deliberation. Voting occurred (as in the councils) in the order ofseniority in rank, with the president voting last. At the end of voting, the agreement ofprinciple established was pronounced by the president (with a short reasoning). Then thepresident appointed a committee of formulation, one member of which was the judgewhose opinion was accepted by the body. Apart from this individual, the committeeconsisted of two other judges and a minute-taker. The leading cases had to be reasoned indetail. Should the leading case and its reasoning need confirmation, another new plenarysession certified it. Cases had to be published in the official journal and sent to the financialminister.

The territorial scope of the act was extended to the "entire area of the countries of theHungarian Crown". However, different regulations had to be enacted also in this case

I_fl‘_____ _ g Isiydn Sripta

the deciding of the fore-question. It was an important rule that the same council had todecide on the individual questions [Article I03).

The decision was announced by tl1e president, however until its amtotmcement, voterscould alter their opinions. After having declared the decision, the case was considered to hefinally concluded. Those “grammatical and spelling mistakes“ not affecting the essence ofthe decision, could be corrected by the president (Article 101). The content of the verdictand the reasoning which led to it, were announced by the president orally and in public. Ifthis could not take place during one session, the day of pronouncement had to be madepublic by display one day earlier (Article toe). If the decision appealed was entirelyapproved by the court (conceming its content and reasoning) it was enough to simply referto the decision. However, if approval occurred based on another reason, this reasoning hadto be fonnulated separately. If the court changed the decision appealed entirely or partly,the decision and the reasoning had to be recomposed. Reports were made of the cotmcilmeeting of the court where the counter-opinions with reasoning and the result of the votingwere put down in writing.

Transitional provisions {rules of procedure, scope of law)

The Council of Ministers was invested with full power for regulating the rules ofprocedure of the financial administrative court by decrees. Article 2? of the act (oddly)stated that the rules of procedure “would take measures also“ so that the debated questionsofprinciples should be decided “in the plenary session of the financial administrative court.The agreements in principle of that session are standard until a different agreement in aplenary session is established.” The rules of procedure also anchored the development ofplenary sessions called to decide the debated questions of principle, the presentation of thesubjects of the plenary session and the procedure of voting.

In accordance with this, the rules of procedure regulated the decision-makingmechanism of the plenary session (Articles 33-54). In compliance with this, this decision-making body of the court had a quorum if more than half of the total judges were presentwith the eaception of the president. The whole council deliberated in closed session, for thedecision, the votes of the majority of those present were needed. In the event of debate, thepresident decided. If a question of principle emerged during the judicature, the presidenthad to convene the plenary session ofthe cotmcil within eight days.

In the plenary session the case was submitted by the judge who was the presenter of thecase based on the debated question of principle. His opinion was followed, occasionally bya counter motion and then deliberation. ‘doting occurred (as in the councils) in the order ofseniority in rank, with the president voting last. At the end of voting, the agreement ofprinciple established was pronotmced by the president (with a short reasoning). Then thepresident appointed a committee of fonnulation, one member of which was the judgewhose opinion was accepted by the body. Apart from this individual, the committeeconsisted of two other judges and a minute-taker. The leading cases had to be reasoned indetail. Should the leading case and its reasoning need confirmation, another new plenarysession certified it. Cases had to be published in the official journal and sent to the financialminister.

The territorial scope of the act was extended to the “entire area of the countries of theHungarian Crown“. However, different regulations had to be enacted also in this case


concerning Croatia-Slavonia. As no administrative committees operated in this part of thecountry, it had to be stated that also the decisions made by the Finance Directorate (in itscapacity as administrative committee) can be appealed to the administrative court. It wasnatural that petitions from there had to be handed in to the Finance Directorate. Thesubmission of the appeal and the completion ordained by the court were also the duty ofthese organs.26

In accordance with Article 29 regulating the term of validity of the act, orders ofadministrative authorities could only be appealed against at the financial administrativecourt if those were made after the enactment of the law. Those appeals against decreesmade before the enactment, were still decided by the financial minister. The material scopeof law did not extend to the trespasses committed against public taxes; in these matters theroyal courts of justice vested with judicial authority remained ones who judged. Incompliance with this, the ordinary courts decided on the legality of fines imposed in theevent of a breach of the law concerning direct taxes, excise goods, excise taxes and duties(Article 30).

The act came into force on January 1st, 1884. The financial minister was put in charge ofits enforcement, which he did via a short general order (Nr. 81. 085.) dating from December25th, 1883.27 This order requested the administrative committees of judicial authorities, theroyal financial directories and the royal tax inspectors, to submit the appeals against thedecisions made until December 31st, 1883 to the Ministry of Finance, and the ones againstthe decisions made on January 1st, 1884 to the financial administrative court.

Summary, outlook

During the establishment of the financial administrative court there was an opportunityto introduce up-to-date and characteristically suitable rules of procedure for case-types.This system could have eliminated the occasional subjectivity of the presenting judge as theinevitable risk of the referendary (presenting) system. This would have been needed in theevent of single-stage judicature, since in the administrative cases called into question, thestate apparatus, well-equipped with documentary evidence was often pitted against citizensmostly without any means of defending themselves adequately. From a theoretical aspect,this solution would have been better from the aspect of legal protection.

During the professional and legislative debate, there was often a call for the followingof the foreign solutions. It was known to the Hungarian legislatures of the era that twomodels of procedural law had developed in the international practice: the oral system and

26 Ugyrend [Rules of procedure]; Penzugyi Kozlony 1883. 51. sz. P. 1003-1030.; 2050/Pm. 1883.december 21. A penzugyi kozigazgatasi birosag iigykoret erinto szamvevosegi, penztari esgazdaszati teendok ellatasa targyaban. [On the subject of dicharge of the duties concerning publicaccountancy, pay-office and economics concerning the rules of procedure of the financialadministrative court] Penziigyi Kozlony 1883. 51. sz. P. 1031.; 81085/Pm. 1883. december 25.; Apenzugyi kozigazgatasi birosagrol szolo 1883: XLIII. tc. eletbeleptetese targyaban. [On the subjectof enactment of the Act Nr. 43 of 1883 on the financial administrative court] Penzugyi Kozlony1883.51.sz. P. 1031-1032.

27 Magyarorszagi Rendeletek Tara. [The collection of Hungarian orders] 17. evf. 1883. IV. fuzet.Budapest, 1883. 243. sz. P. 1768.

The process order ofrhe conrt offinonciol odminisrrofivejnrisdicrion (I334‘:I3FI5,l I35‘

conceming Croatia-Slavonia. As no administrative committees operated in this part of thecotmtry, it had to be stated that also the decisions made by the Finance Directorate (in itscapacity as administrative committee) can be appealed to the administ;tati‘ve court. It wasnatural that petitions from there had to be handed in to the Finance Directorate. Thesubmission of the appeal and the completion ordained by the court were also the duty ofthese organs.“

In accordance with Article 29 regulating the term of validity of the act, orders ofadministrative authorities could only be appealed against at the fmancial administrativecotut if those were made after the enactment of the law. Those appeals against decreesmade before the enactment, were still decided by the fmancial minister. The material scopeof law did not eatend to the trespasses committed against public tastes; in these matters theroyal courts of justice vested with judicial authority remained ones who judged. Incompliance with this, the ordinary courts decided on the legality of fines imposed in theevent of a breach of the law concerning direct tastes, excise goods, eacise taxes and duties{Article 31]).

The act came into force on January 1“, 1334. The financial minister was put in charge ofits enforcement, which he did via a short general order (Nr. 31. D35.) dating from December25“, l333.i"' This order requested the administrative committees ofjudicial authorities, theroyal financial directories and the royal tax inspectors, to submit the appeals against thedecisions made until December 31“, 1333 to the llvlinistry of Finance, and the ones againstthe decisions made on January 1“, 1334 to the fmancial administrative court.

Summary, outlook

During the establishment of the financial administrative court there was an opportunityto introduce up-to-date and characteristically suitable rules of procedure for case-types.This system could have eliminated the occasional subjectivity of the presenting judge as theinevitable risk of the referendary (presenting) system. This would have been needed in theevent of single-stage judicattue, since in the administrative cases called into question, thestate apparatus, well-equipped with documentary evidence was ofien pitted against citizensmostly without any means of defending themselves adequately. From a theoretical aspect,this solution would have been better from the aspect of legal protection.

During the proiessional and legislative debate, there was often a call for the followingof the foreign solutions. It was known to the Hungarian legislatures of the era that twomodels of procedural law had developed in the intemational practice: the oral system and

it Dgyrend [Rules of procedure]; Penatigyi Kdalfiny 1333. 51. sa. P. toes-1o3o.; zosorrm. rsss.december 21. A penziigyi ktlaigazgatasi birosag iigylotiret erinttl saamveviisegi, penatari esgaadasaati teendiik ellatasa targyaban. [Un the subject of dicharge of the duties concerning publicaccountancy, pay-office and economics concerning the rules of procedure of the financialadministrative court] Penziigyi I(|':lzltiny 1333. 51. sz. P. lll3l.; 3lIIl35fPm. 1333. december 25.; Apenziigyi ktiaigazgatasi birosdgrol saolo I333: XLIII. tc. eletbeleptetese tatgyaban. [On the subjectof enactment of the Act hlr. 43 of 1333 on the financial administrative court] Penatigyi KtizltlnyI333. 51. sa.P. 1331-1332.

H Magyarorsaagi Rendeletek Tara. [The collection ofHtmgarian orders] 1?. evf. 1333. 1‘v'. fiiaet.Budapest, 1333. 243. sz. P. lTti3.

134 Istvdn Stipta

optional oral system. The Hungarian solution differed from both; our financialadministrative court decided the disputed administrative cases in written trial.

The procedural order of the administrative legislative activity of the English Justice ofPeace followed the classical judicial model. Hence, the procedural norms of civil courtscame across in the public legal decision making at first instance as well. The trial of thedebated administrative cases also occurred in accordance with the contemporary Englishcivil procedural law. Courts had wide trial procedural rights in this type of case, the contentand ranking of procedural trial actions was determined by the court. The decision-makingmechanism also mapped the classic judicial decision-making; the participants in thejudgment had the same right to vote. The means and methods of evidence followed theforms established in the civil legal system. It occurred that the Justice of Peace listened towitnesses or directed new evidence. Thus, in England administrative legal debates weredecided within contradictory frames, in oral procedure.28

The contemporary French administrative procedure of legal protection was an optionaloral type. The procedural goal formulated in the acts concerned was an effective and cheapjurisdiction, capable of fact-finding and facilitating the statement of facts. However, thetrial stage of the procedure was always public.29 The Austrian jurisdiction decided alreadyin 1875 to copy the French procedural system. The administrative judicial procedure beforethe court basically followed the procedural order of the civil courts. In the preparatory partof the trial the collection of the documents and the necessary oral listening were taken careof. The court hearing of the cases was public and oral.30

The legislation of Prussia was in favor of a completely oral system from 1879 onwards.The Prussian administrative legal proceeding distinguished between petitions for appeal

28 DelF Adami, Rezso: Igazsagszolgaltatasunk es kozigazgatasunk reformja az allamhatalmakmegosztasa szempontjabol. Magyar Jogaszegyleti Ertekezesek I. [The reform of our judiciary andadminsitrative systems from the aspect of the separation of state powers. Essays of the HungarianLawyer Association. Vol. 1.] Budapest, 1880. P. 22-23.; Zergenyi, Jeno: A kozigazgatasibirosagokrol. Jogtudomanyi Kozlony.fOn the administrative courts. Journal of Jurisprudence] 1890.42. sz. P. 330-331.Gruber, Lajos: A kozigazgatasi biraskodas alakzatai Europaban. I. A kozigazgatasi biraskodas

Francziaorszagban. Jogtudomanyi Kozlony [The forms of administrative judiciary in Europe. Vol.1. The administrative judiciary in France. Journal of Jurisprudence] 12. evf. 36. sz. (1877.szeptember 7.) P. 286.

30 Ludwig K. Adamovich - Bernd-Christian Funk: Osterreichisches Verfassungsrecht. Dritte,neubearbeitete Auflage. [Austrian Constitutional Law. Third new edition] Springer Verlag.Wien/New York 1985. P. 325.; Wilhelm Brauneder: Osztrak alkotmanytortenet napjainkig.Friedrich Lachmayer grafikaival. Ford.: Dr. Kajtar Istvan [The history of Austrian constitution untiltoday. With the graphics of Friedrich Lachmayer. Translated by Istvan Kajtar, Dr.] Pecs, 1994. P.195.; Szabo, Istvan: Ausztria allamszervezete 1918-1955. A Pazmany Peter Katolikus EgyetemJog-es Allamtudomanyi Karanak Konyvei. [The state organization of Austria 1918-1955. TheBooks of the Pazmany Peter Catholic University, the Faculty of Law] (Sorozatszerk.: Varga Csaba).Jogtudomanyi Monografiak 2. (Szerk.: Schanda Balazs) PPKE JAK. Budapest, 2010. P. 220-222.;Stipta, Istvan: Az 1875-6s osztrak kozigazgatasi birosag hatasa a magyar kozigazgatasijogvedelemre. Emlekkonyv Dr. Szabo Andras egyetemi tanar 70. sziiletesnapjara. [The effect of theAustrian administrative court from 1875 on the legal protection of Hungarian administration. Bookpublished in honour of the 70th birthday of Professor Dr. Szabo Andras] Acta Jur. et. Pol. Szeged(Szerk.: Toth Karoly). Tomus LIII. Szeged, 1998. P. 353-362.

I 3-'1? _ r’sn='cln Stiorn

optional oral system. The Hungarian solution differed liorn both; otn financialadministrative court decided the disputed administrative cases in written trial.

The procedural order of the administrative legislative activity of the English Justice ofPeace followed the classical judicial model. Hence, the procedural nonns of civil courtscame across in the public legal decision making at fnst instance as well. The trial of thedebated administrative cases also occurred in accordance with the contemporary Englishcivil procedtual law. Courts had wide trial procedtnal rights hr this type of case, the contentand ranking of procedural trial actions was detennined by the court. The decision-makingmechanism also mapped the classic judicial decision-making, the participants in thejudgment had the same right to vote. The means and methods of evidence followed theforms established in the civil legal system. It occrnred that the Justice of Peace listened towitnesses or directed new evidence. Thus, in England adrninistrative legal debates weredecided within contradictory frames, in oral procedure.“

The contemporary French adminisnative procedure of legal protection was an optionaloral type. The procedtnal goal formulated in the acts concerned was an effective and cheapjurisdiction, capable of fact-finding and facilitating the statement of facts. However, thetrial stage of the procedure was always public.“ The Austrian jurisdiction decided alreadyin 1335 to copy the French procedural system. The administrative judicial procedure beforethe court basically followed the procedural order of the civil courts. In the preparatory partof the trial the collection of the documents and the necessary oral listening were taken careof. The court hearing ofthe cases was public and oral .3“

The legislation of Prussia was in favor of a completely oral system from 13719 onwards.The Prussian administrative legal proceeding distinguished between petitions for appeal

|_' —-

is Dell’ Adami, Reasii: lgazsagszolgaltatasurrk es ktlaigaagatasttnlt reformja an allamhatalrrrakmegosztasa saempontjabol. lvlagyar Jogaszegyieti Ertekezések l. [The reform of our judiciary andadminsitrative systems from the aspect of the separation of state powers. Essays of the HungarianLawyer Association. Vol. 1.] Budapest, I330. P. 22-23.: Zergenyi, Jenf-: A koaigazgatasibirosagokrol. Jogtudomanyi Ktialony.[Ctn the administrative courts. Journal of Jurisprudence] 1393.42. sz. P. 331']-331.

E9 Gruber, Lajos: A koaigazgatasi biraskodas alakzatai Europaban. I. A lttiaigazgatasi biraskodasFrancaiaorszagbarr. Jogtudomanyi Koalony [The forms of administrative judiciary in Europe. ‘Vol.l. The administrative judiciary in France. Joumal of Jurisprudence] 12. evf. 36. sz. (13’i"i'.szeptember T.) P. 236.

3“ Ludwig K. Adarnovich - Eemd-Christian Funk: Clsterreichisches ‘t»'erfa.ssungsrecht. Dritte,neubearbeitete Auflage. [Austrian Constitutional Law. Third new edition] Springer ‘vlerlag.Wiemhlew York I935. P. 325 .; Wilhelm Elrauneder: Osztralt alkotmanyttirtenet napjainl-rig.Friedrich Laclnnayer grafikaival. Ford.: Dr. Kajtar Istvan [The history of Austrian constitution untiltoday. With the gaphics of Friedrich Lachnrayer. Translated by lstvan Kajtar, Dr.] Pecs, 1994. P.195.: Snabo, Istvan: Ausztria allamsaerveaete 1913-1955. A Pazrnany Peter Katolil-nrs EgetemJog-es Ailamtudomanyi Karanak Ktinyvei. [The state organization of Austria 1913-1955. TheBooks of the Paiarntiny Peter Catholic University, the Faculty of Law] {Soroaatsaerl-1.: Varga Csaba}.logtudomanyi Ivlonografialt 2. (Saerk; Schanda Balazs] PPKE JAE-‘L. Budapest, Ellltl. P. 223-222.;Stipta, Istvan: Az 1335-tis osztralt ltoaigaagatasi birosag hatasa a magyar koaigazgatasijogvedelemre. Emleldttinyv Dr. Saabo Andras egyetemi tartar Tl]. saiiletesnapjara. [The effect of theAustrian administrative court from 1335 on the legal protection of Hungarian administration. Bookpublished in honour of the itlth birthday of Professor Dr. Szaho Andras] Acta Jur. et. Pol. Szegcd(Beetle: Toth Karoly). Tomus LIII. Saeged, 1993. P. 353-362.


against administrative decisions (Beschwerde) and complaints arising during the judiciaryreview (Klage). The petitions handed in to the administrative court had to be handed in, inwritten form. The law suit lacking legal ground could be immediately rejected with justifiedsummons. The court could call upon the opponent of the plaintiff, based on a petition withlegal ground in justified summons. Both decisions could be contested by asking for an oraltrial.31

The contemporary Hungarian legislation did not strive for overall regulation in the areaof procedural law, either. Therefore, neither did the act concerning administrative courtcontain coherent and detailed procedural rules. However, in the functioning regulations ofthe court the practical experiences pointing ahead beyond the case-preparation, theconducting of trial and the procedure of judicial decision making could be used. Thestriking deficiency of the act was that it did not contain the possibility for retrial. Later, asmore petitions for this arrived to the decision-making body, they declared in many casesthat there is no condition for retrial in the procedure of the financial administrative court.

The Hungarian financial administrative court established in 1883 enabled legal protectionon one instance. The competence of the body was limited because its decision-makingauthority extended only to cases of direct taxes and fees. The procedure of the court wasregulated by the contemporary legislature with regards to the interests of the state.Therefore, the principle of verbosity, ensuring a more complete legal guarantee, wasrejected. However, the court played an important role in our domestic history of public lawbecause it fostered the idea of the necessity for, and feasibility of individual legal protectionagainst the state. Furthermore, its was the organizational antecedent of the administrativecourt, with general competence established in 1896, that ensured the rights of the parties ona broader scale and enforced the aspects of legal protection more firmly in procedural law.

31 Gerhard Lange: Die Bedeutung des preufiischen Innenministers Friedrich Albert Graf zu Eulenburgfur die Entwicklung PreuBens zum Rechtsstaat. [The significance of the Prussian Minister of HomeAffairs Friedrich Albert Graf zu Eulenburg for developing Prussia into a Rechtsstaat (establishmentof the rule of law)] Berlin, 1993. P. 45-53.; Handworterbuch der Rechtswissenschaft. [Dictionary ofJurisprudence] (Hrsg.) Fritz Stier-Somlo und Alexander Elfter. 6. Bd. Berlin, Leipzig. 1929. P. 614-615.

The process order ofthe court offirtortciol orfruirtistrorivejurisdiction (I-5’34_—I+5‘5*o,l J35

against administrative decisions (Besehwerde) and complaints arising during the judiciaryreview [Klage). The petitions handed in to the administrative court had to be handed in, inwritten form. The law suit lacking legal ground could be immediately rejected with justifiedsimtmons. The court could cal] upon the opponent of the plaintiff, based on a petition withlegalsground in justified summons. Both decisions could be contested by asking for an oraltrial.

The contemporary Hungarian legislation did not strive for overall regulation in the areaof procedural law, either. Therefore, neither did the act concerning administrative courtcontain coherent and detailed procedtual rules. However, in the functioning regulations ofthe court the practical eitperiences pointing ahead beyond the case-preparation, theconducting of trial and the procedure of judicial decision making could be used. Thestriking deficiency of the act was that it did not contain the possibility for retrial. Later, asmore petitions for this arrived to the decision-making body, they declared in many casesthat there is no condition for retrial in the procedure of the financial administrative court.

Ill

The Hungarian financial administrative court established in 1333 enabled legal protectionon one instance. The competence of the body was limited because its decision-makingauthority extended only to cases of direct taxes and fees. The procedure of the court wasregulated by the contemporary legislature with regards to the interests of the state.Therefore, the principle of verbosity, eiuuring a more complete legal guarantee, wasrejected. However, the court played an important role in our domestic history of public lawbecause it fostered the idea of the necessity for, and feasibility of hidividual legal protectionagainst the state. Furthermore, its was the orgaimational antecedent of the administrativecourt, with general competence established in 1396, that ensured the rights of the parties ona broader scale and enforced the aspects of legal protection more firmly in procedural law.

31 Gerhard Lange: Die Bedeutung des preufiischen lmtenministers Friedrich Albert Graf 211 Eulenburgfiir die Entwicltlurig Preuflens sum Rechtsstaat. [The significance of the Prussian lvliuister of HomeAffairs Friedrich Albert Grafau Eulenburg for developing Prussia into a Rechtsstaat (establishrnentof the rule of lawj] Berlin, 1993. P. 45-53.; Handwiirterbuch der Rechtswissenschaft. [Dictionary ofJurisprudence] {I-lrsg.) Fritz Stier-Sornlo und Ale:-tander Elfter. 6. Bd. Berlin, Leipzig. 1929. P. 614-615

Documents

The process order of the court of financial administrative jurisdiction (1884-1896)