Protection against the lack of administrative provision

Abstract

The matter being under inquiring is the systematic organization of the action of fulfillment as disciplined by the d. lgs. (legislative decree) July 2010 n. 104. As the joint provision at articles 31, paragraphs 3 and 34, paragraph 1 letter c) c.p.a. (code of administrative procedure), allows to propose the “condemnation” of the issuance of the requested measure, limited by art. 31, paragraph 3, concomitantly to the action of annulment of the negative act or the action upon silence, it has been clarified the nature of the denial of the favourable measure required by a private citizen and so the appeal of the negative measure, which does not look like a real constitutive act but dimly declaring the incorrect execution of the execution of the obligation of judgment.
At this point, it has been taken into consideration whether the action of execution following art. 31, paragraph 3 and 34, paragraph 1, letter c c.p.a. ( code of administrative trial) may be considered as a “condemnation” or this should more properly be reserved to a compensation in specific form as in art. 30, paragraph 2 c.p.a. which, recalling art. 2058 c.c. (civil code), which seems to allow to issue inhibitory orders of the offence in any case when the tutelage of execution stands apart from the issuing of a negative act or silence on the Administration part.
After examining the limits of the action of execution and noticing that, in the tutelage of fulfillment , the jurisdictional authority exercises substitute powers, not only ordering the Administration to take a decision but also issuing a substitute sentence of execution, clarifying if this enlargement of the Powers of the Administrative Judge in the cognizance trial corresponds to the attribution to the same of the possibility to affect the actual functions of the executive Power out of the cases of jurisdiction enlarged to the merits, has been dealt with; especially because of the lack of a constitutional protection about the jurisdiction
of merits. Consequently, there is weakening of the system of guarantees of the person against the State Authority.