Paolo Siracusano

Ruolo creativo del giudice e principio di legalità nella responsabilità civile da illegittimo esercizio del potere discrezionale

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The work tackles the problem of the civil accountability of the public administration for the unlawful exercise of discretionary power for the purpose of indicating a possible way of reading administrative jurisprudence in the matter of compensation for damages; this is done by means of a critique in light of the principle of legality to which judges are bound in the course of their professional duties. The topic raises a complex set of questions. To ask oneself the exact meaning of indemnifiable legitimate interest is not the equivalent of attempting to solve a vexing theoretical dilemma, but rather means trying to understand in concrete terms the legal status of a citizen faced with the exercise of administrative power, what advantages the system guarantees him (or her), what remedies are available pursuant to articles 24 and 113 of the Constitution and when the jurisdictional protection can be said to be effective. But in so doing it is also necessary to pose the problem of the foundation of the protection of material interests and ask oneself whether certain 'creative' positions assumed by jurisprudence are compatible with the principle of legality, however limited its essential core, and even though understood as engaging in dialectical exchange with the jurisdictional function. The work is divided into four sections. The first part specifies the theoretical assumptions in the matter of the relationship involving norm, specific case and judicial interpretation to which reference has been made in the search for critical verification of the principal orientations of jurisprudence. The second part examines the rulings which grant specific protection and/or protection in terms of compensation for damage to a so-called legitimate material interest held by a given party. The third part examines the less frequent rulings inspired by the criterion of the loss of a chance to pursue a legitimate interest. The fourth examines those few sentences where the logical course imposed by the nature of safeguards relating to compensation procedure leads to a different conception of legitimate interest completely divorced from a material interest. Here the author examines the line of reasoning used by the Court of Cassation in reaching ruling n. 157 handed down in 2003, pronounced with regard to the same events considered in ruling 500SU/1999.


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