الإرتفاقات الإدارية في التشريع الجزائري
بن سليطان علي
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Through this thesis, I broached the subject of administrative easements in Algerian legislation. These easements are loads that weigh on public and private property who aimed the public utility. The importance of this subject allows public authorities to limit the property in different areas: electric and gas energy transport, mines, water, urban planning, environment, the cable car the telecommunications and railway sector etc.. The importance also of this topic lies in the treatment of the legal guarantees necessary for the owners of the land subject to the easement; in other words, the problem of this thesis is to find a balance between the interests of private and public during the development of the laws governing administrative servitudes, in order to achieve coherence between two conflicting interests. starting from this issue, I studied in the first part of the concept of administrative easements, both by exposing the Organization and the restriction of the property in the Algerian civil code, texts relating to administrative easements and comparative legislation, I also discussed the significant developments which known legal easements, any plan to expose the point of view of proponents of public law that have established a different concept to these easement sunder the rules of law and also linked to the public interest. With regard to the Algerian legislation I wanted to determine the concept of the easements and I have noted that the terms are not uniform such as. public rights-of-way, easements of public law, administrative easements etc. However, the legal texts do not define clearly these easements, but they determine a single and unchanging manner the terms of usage without any exhaustive definition, and even the doctrine could not establish a uniform concept of administrative easements and she considered as simple restrictions on property without constituting a stand-alone category of other easements, despite this point of view we can define easements as follows: administrative easements are limitations to the exercise of the right of ownership. They are established in the general interest according to the legal rules. This definition follows the need to introduce the dualism of the notion of easements in the Algerian civil code and all texts governing administrative easements in order to achieve a harmonious concept. With regard to the sources of administrative easements, I stated that in analyzing the constitutional, legislative and regulatory texts, I noticed the absence of easements in the constitution which speaks only of a single means of limitation of the exercise of the property. This is the expropriation for public utility, that is why it is better to add these easements to the provisions of the constitution especially as they are extended to different sectors, such as: air transport, electrical and gas energy, telecommunications etc. and also under the trend of comparative including legislation the French and Egyptian constitution which explicitly stipulate the limitation of rights of property for reasons of public utility or general interest, thus for implementation of limitations, the State reserves the right to dispose or to expropriate all categories of real estate subject to a just compensation. Determining the content of administrative easements, they differ from similar restrictions that limit the property such as: preemption, confiscation, nationalization.. and this despite their links to the restrictions of property rights. However the easements have become the most used in recent legislation. They cover vital areas of the economy such as transport, energy, hydrocarbons etc. In addition they have exceeded the expropriation for public purposes and they are managed by numerous laws, which led to difficulties in classification. """" For what is the study of the field of application and use of administrative easements, I found that the texts that govern often leave an ambiguity in the identification of the beneficiaries because they use General and imprecise terms such as: < ban to continue "", < it is necessary to cut down the trees. without identification of the persons concerned, as well as for applicants, which makes the task of difficult public authority when it limits the property by the charges and obligation In the second part of this research which deals with the side practical administrative servitudes, I have reviewed the procedures for the preparation of these easements which are materialized by a stop of opening a public inquiry prior and d an d authorization of the use of easements administratives.de order this, I have found, by analysing the texts has these public rights-of-way, an inconsistency between them because if some require the first procedure other non. There are even those who do not specify the nature of the pieces that constitute the administrative record for the opening of the preliminary investigation and refer to the law on expropriation for public utility yet, this last differs the texts governing administrative easements either for the different phases of expropriation, or for the development of edges utilities; adding to this; the difficulty and complexity of the prior investigations. Given their diversity of legislation to another results of consultations and the views of the public on the law of easements do not speak of the new proposals of the investigating Commissioner and the public and do not specify the time limits for sending the results of the surveys to the administration. The texts have not also provided the obligation to take into consideration the views of the owners and the rights holders even if the results are negative (negative) and does not specify the legal nature of edges relative to the opening of public inquiries, so the periods allowed for appeals to administrative justice. So I proposed that the first procedure of discovery must be strengthened by reformulating the legal texts of administrative easements by the classification of the legal nature of the discovery order, - the possibility of judicial review. -L' unification of prior surveys in a single text on public consultation and the obligation to modify this stops. Adding to this, the conferral of the power of appointment of the members of the commission of inquiry to the president of the tribunal instead of the administration. As the 2nd procedure concerning it stop use administrative servitudes, I found that Parliament has given this prerogative to the wali, I propose it to be allocated to the administrative tribunal, if the results of the investigations are negative and this to ensure guarantees legal waters opinion of the commission of inquiry, it is necessary to oblige the administration to justify stops it authorization of easements When the results of the prior investigations are negative while determining precisely the timely issuance and annulment of the order if the time limit expired. For what is amicable agreements, producing administrative servitudes, the legislature did not require a specific form to its agreements, and did not specify the means of their development, I have concluded from this study, it is necessary to standardize this procedure as is the case in the 90/11 on the expropriation law and those in all laws governing administrative easements to determine with precision the stages of development of amicable agreements and their legal natures, as well as the competent jurisdiction which would logically be the administrative tribunal as long as their sources are the legal texts of the public rights-of-way, the latter pose litigation justice and noticed through thorough analysis and continuous of the various texts of the easements the heterogeneity in the determination of the competent jurisdiction of these conflicts, because some texts refer to administrative tribunals others speak outside the jurisdiction, that is why the need to unify the various texts of easements in the determination of the periods allowed for appeals against the edges easements authorization by assigning the jurisdiction of these disputes to administrative justice, in addition to disputes concerning the edges of easements. I studied the repair of the damage caused by these easements and I have observed that the most important issue in laws relating to public rights-of-way, lies in the absence of a general principle of compensation and the heterogeneity of legal texts, and I have concluded that solving the problem of compensation through the generalization of the amicable agreement in all the laws of easements; in formulating precise procedures thereof and the possibility of exercising a judicial review on these agreements amicably in the legislation relating to the expropriation of public utility. It is also necessary that Parliament must illuminate cases of the failure of the amicable agreement and it must leave the given solution by the passage of the law of expropriation of public utility easements; because this last action is serious and it is better to resort to justice to decide. Finally, and in the domain of the courts competent to examine the compensation of damages resulting from administrative easements, it is better also that provisions of the code of expropriation clearly cite the jurisdiction of the administrative courts concerning actions concerning compensation.