Skutki rekursu administracyjnego w kanonicznym prawie łacińskim i wschodnim

Abstract

It is not easy to infer from the canons of the code of the (Latin) Canon Law, which clearly mention the administrative appeal in its strict sense, if the appeal usually has the suspending or devolutive consequence. Hence researchers have troubles finding a general rule for the consequences of the administrative appeal. Those who think that the ancient extrajudicial appeal (appellatio extraiudicialis) has been repealed by the code, tend to admit that the administrative appeal never suspends the execution of the decree as its consequence. Other canonic lawyers have a different opinion, namely, they assume that the appeal always has the suspending consequence, unless something different appears clearly from the canons. It is different in the canon law for the Catholic Eastern Churches, where a general rule was set (motu proprio Sollicitudinem nostram can. 12 § 2; motu proprio Cleri sanctitali can 151 § 2), saying that every appeal has a devolutive consequence, unless the rules of law say expresses verbis otherwise. Hence the canons speaking about an appeal „in devolutivo'’ are very rare here. This makes the powers of the Church administrative authority have priority over the rights of individuals; on the other hand, the rights of persons are most diligently guarded where the Eastern canons order an appeal „in suspensivo” It should be then expected that in the new law the discipline with regard to the consequences of the administrative appeal will be unified in both codes, certainly in favour of the rule of the Eastern law, the, more so, that the Latin bishops practically have applied the latter for a long time.