On the relationship between the binding force and the enforceable force of the administrative act

Abstract

The administrative act enjoys the privilege of prior or, in other words, it is traditionally accepted that the administrative act is enforceable. In reality, the use of this notion of "executory" is not exactly appropriate, especially since, in the description of the privilege, the enforceability of the administrative act is explained in terms of the possibility of the administration to use the direct coercive force of the state. However, in the absence of a competence expressly regulated by law, the administration, like any other private individual, cannot proceed alone, without the approval of the court, to the forced execution of its acts. In addition, not all administrative acts have a content susceptible to material execution, so that the privilege expressed in terms of the notions of "executory" does not seem to be a generally valid one for the administrative act, because, for the rest of the administrative acts, their binding force is sufficient to ensure their legal effectiveness. This is precisely why the present study aims to retrace the content of the privilege of prior. Starting from the writings of the creator of the privilege of the prior and noting some conceptual delimitations related to the binding force and the enforceable force of the legal act, our conclusion is that the administration is indeed privileged: the administrative act is binding and enforceable, even if it cannot be said about it that it is indeed an enforceable title and even if it does not allow direct forced execution. The prior is actually found in the idea that the administrative act, although unilateral, is legally efficient and effective, in the absence of any confirmation from the judiciary. The administrative act is imposed on third parties, an unusual aspect in private law.