Đề mục 4. Các hành vi hành chính riêng biệt (Điều 35-93)

Within the limits of his or her competence, one who has executive power can issue a singular administrative act, either by decree or precept, or by rescript, without prejudice to can. 76
§1.

§1 An administrative act is to be understood according to the proper meaning of the words and the common manner of speaking. In doubt, a strict interpretation is to be given to those administrative acts which concern litigation or threaten or inflict penalties, or restrict the rights of persons, or harm the acquired rights of others, or run counter to a law in favour of private persons; all other administrative acts are to be widely interpreted.
§2 Administrative acts must not be extended to cases other than those expressly stated.

An administrative act which concerns the external forum is to be effected in writing; likewise, if it requires an executor, the act of execution is to be in writing.

An administrative act, even if there is question of a rescript given Motu proprio, has no effect in so far as it harms the acquired right of another, or is contrary to a law or approved custom, unless the competent authority has expressly added a derogatory clause.

Conditions attached to an administrative act are considered to concern validity only when they are expressed by the particles ‘if’, ‘unless’, ‘provided that’.

The executor of any administrative act cannot validly carry out this office before receiving the relevant document and establishing its authenticity and integrity, unless prior notice of this document has been conveyed to the executor on the authority of the person who issued the administrative act.

The executor of an administrative act to whom the task of execution only is entrusted, cannot refuse to execute it, unless it is quite clear that the act itself is null, or that it cannot for some other grave reason be sustained, or that the conditions attached to the administrative act itself have not been fulfilled. If, however, the execution of the administrative act would appear to be inopportune, by reason of the circumstances of person or place, the executor is to desist from the execution, and immediately inform the person who issued the act.

The executor of an administrative act must proceed in accordance with the mandate. If, however, the executor has not fulfilled essential conditions attached to the document, or has not observed the substantial form of procedure, the execution is invalid.

The executor of an administrative act may in his prudent judgement substitute another for himself, unless substitution has been forbidden, or he has been deliberately chosen as the only person to be executor, or a specific person has been designated as substitute; however, in these cases the executor may commit the preparatory acts to another.

An administrative act can also be executed by the executor’s successor in office, unless the first had been chosen deliberately as the only person to be executor.

If there has been any error in the execution of an administrative act, the executor may execute it again.

An administrative act does not cease on the expiry of the authority of the person issuing it, unless the law expressly provides otherwise.

The revocation of an administrative act by another administrative act of the competent authority takes effect only from the moment at which the person to whom it was issued is lawfully notified.

A singular decree is an administrative act issued by a competent executive authority, whereby in accordance with the norms of law a decision is given or a provision made for a particular case; of its nature this decision or provision does not presuppose that a petition has been made by anyone.

A singular precept is a decree by which an obligation is directly and lawfully imposed on a specific person or persons to do or to omit something, especially in order to urge the observance of a law.

Before issuing a singular decree, the person in authority is to seek the necessary information and proof and, as far as possible, is to consult those whose rights could be harmed.

A decree is to be issued in writing. When it is a decision, it should express, at least in summary form, the reasons for the decision.

A singular decree has effect in respect only of those matters it determines and of those persons to whom it was issued; it obliges such persons everywhere, unless it is otherwise clear.

If decrees are contrary one to another, where specific matters are expressed, the specific prevails over the general; if both are equally specific or equally general, the one later in time abrogates the earlier insofar as it is contrary to it.

§1 A singular decree whose application is entrusted to an executor, has effect from the moment of execution; otherwise, from the moment when it is made known to the person on the authority of the one who issued it.
§2 For a singular decree to be enforceable, it must be made known by a lawful document in accordance with the law.

Without prejudice to cann. 37 and 51, whenever a very grave reason prevents the handing over of the written text of a decree, the decree is deemed to have been made known if it is read to the person to whom it is directed, in the presence of a notary or two witnesses; a record of the occasion is to be drawn up and signed by all present.

A decree is deemed to have been made known if the person to whom it is directed has been duly summoned to receive or to hear the decree, and without a just reason has not appeared or has refused to sign.

§1 Whenever the law orders a decree to be issued, or when a person who is concerned lawfully requests a decree or has recourse to obtain one, the competent authority is to provide for the situation within three months of having received the petition or recourse, unless a different period of time is prescribed by law.
§2 If this period of time has expired and the decree has not yet been given, then as far as proposing a further recourse is concerned, the reply is presumed to be negative.
§3 A presumed negative reply does not relieve the competent authority of the obligation of issuing the decree, and, in accordance with can. 128, of repairing any harm done.

§1 A singular decree ceases to have force when it is lawfully revoked by the competent authority, or when the law ceases for whose execution it was issued.
§2 A singular precept, which was not imposed by a lawful document, ceases on the expiry of the authority of the person who issued it.

§1 A rescript is an administrative act issued in writing by a competent authority, by which of its very nature a privilege, dispensation or other favour is granted at someone’s request.
§2 Unless it is otherwise established, provisions laid down concerning rescripts apply also to the granting of permission and to the granting of favours by word of mouth.

Any rescript can be obtained by all who are not expressly prohibited.

Unless it is otherwise established, a rescript can be obtained for another, even without that person’s consent, and it is valid before its acceptance, without prejudice to contrary clauses.

A rescript in which there is no executor, has effect from the moment the document was issued; the others have effect from the moment of execution.

§1 Except where there is question of a rescript which grants a favour Motu proprio, subreption, that is, the withholding of the truth, renders a rescript invalid if the request does not express that which, according to canonical law, style and practice, must for validity be expressed.
§2 Obreption, that is, the making of a false statement, renders a rescript invalid if not even one of the motivating reasons submitted is true.
§3 In rescripts of which there is no executor, the motivating reason must be true at the time the rescript is issued; in the others, at the time of execution.

Without prejudice to the right of the Penitentiary for the internal forum, a favour refused by any department of the Roman Curia cannot validly be granted by another department of the same Curia, or by any other competent authority below the Roman Pontiff, without the approval of the department which was first approached.

§1 Without prejudice to the provisions of §
§2 and 3, no one is to seek from another Ordinary a favour which was refused by that person’s proper Ordinary, unless mention is made of the refusal. When the refusal is mentioned, the Ordinary is not to grant the favour unless he has learned from the former Ordinary the reasons for the refusal.
§2 A favour refused by a Vicar general or an episcopal Vicar cannot be validly granted by another Vicar of the same Bishop, even when he has learned from the Vicar who refused the reasons for the refusal.
§3 A favour refused by a Vicar general or an episcopal Vicar and later, without any mention being made of this refusal, obtained from the diocesan Bishop, is invalid. A favour refused by the diocesan Bishop cannot, without the Bishop’s consent, validly be obtained from his Vicar general or episcopal Vicar, even though mention is made of the refusal.

A rescript is not rendered invalid because of an error in the name of the person to whom it is given or by whom it is issued, or of the place in which such person resides, or of the matter concerned, provided that in the judgement of the Ordinary there is no doubt about the person or the matter in question.

§1 If it should happen that two contrary rescripts are obtained for one and the same thing, where specific matters are expressed, the specific prevails over the general.
§2 If both are equally specific or equally general, the one earlier in time prevails over the later, unless in the later one there is an express mention of the earlier, or unless the person who first obtained the rescript has not used it by reason of deceit or of notable personal negligence.
§3 In doubt as to whether a rescript is invalid or not, recourse is to be made to the issuing authority.

A rescript of the Apostolic See in which there is no executor must be presented to the Ordinary of the person who obtains it only when this is prescribed in the rescript, or when there is question of public affairs, or when it is necessary to have the conditions verified.

A rescript for whose presentation no time is determined, may be submitted to the executor at any time, provided there is no fraud or deceit.

If in a rescript the very granting of the favour is entrusted to the executor, it is a matter for the executor’s prudent judgement and conscience to grant or to refuse the favour.

No one is obliged to use a rescript granted in his or her favour only, unless bound by a canonical obligation from another source to do so.

Rescripts granted by the Apostolic See which have expired, can for a just reason be extended by the diocesan Bishop, but once only and not beyond three months.

No rescripts are revoked by a contrary law, unless it is otherwise provided in the law itself.

Although one who has been granted a favour orally may use it in the internal forum, that person is obliged to prove the favour for the external forum whenever this is lawfully requested.

If a rescript contains a privilege or a dispensation, the provision of the following canons are also to be observed.

§1 A privilege is a favour given by a special act for the benefit of certain persons, physical or juridical; it can be granted by the legislator, and by an executive authority to whom the legislator has given this power.
§2 Centennial or immemorial possession of a privilege gives rise to the presumption that it has been granted.

A privilege is to be interpreted in accordance with can. 36
§1. The interpretation must, however, always be such that the beneficiaries of the privilege do in fact receive some favour.

§1 A privilege is presumed to be perpetual, unless the contrary is proved.
§2 A personal privilege, namely one which attaches to a person, is extinguished with the person.
§3 A real privilege ceases on the total destruction of the thing or place; a local privilege, however, revives if the place is restored within fifty years.

Without prejudice to can. 46, a privilege ceases by revocation on the part of the competent authority in accordance with can. 47.

§1 No privilege ceases by renunciation unless this has been accepted by the competent authority.
§2 Any physical person may renounce a privilege granted in his or her favour only.
§3 Individual persons cannot renounce a privilege granted to a juridical person, or granted by reason of the dignity of a place or thing. Nor can a juridical person renounce a privilege granted to it, if the renunciation would be prejudicial to the Church or to others.

A privilege is not extinguished on the expiry of the authority of the person who granted it, unless it was given with the clause ‘at our pleasure’ or another equivalent expression.

A privilege which does not burden others does not lapse through non-use or contrary use; if it does cause an inconvenience for others, it is lost if lawful prescription intervenes.

§1 Without prejudice to can. 142
§2, a privilege ceases on the expiry of the time or the completion of the number of cases for which it was granted.
§2 It ceases also if in the judgement of the competent authority circumstances are so changed with the passage of time that it has become harmful, or that its use becomes unlawful.

A person who abuses a power given by a privilege deserves to be deprived of the privilege itself. Accordingly, after a warning which has been in vain, the Ordinary, if it was he who granted it, is to deprive the person of the privilege which he or she is gravely abusing; if the privilege has been granted by the Apostolic See, the Ordinary is obliged to make the matter known to it.

A dispensation, that is, the relaxation of a merely ecclesiastical law in a particular case, can be granted, within the limits of their competence, by those who have executive power, and by those who either explicitly or implicitly have the power of dispensing, whether by virtue of the law itself or by lawful delegation.

In so far as laws define those elements which are essentially constitutive of institutes or of juridical acts, they are not subject to dispensation.

§1 Whenever he judges that it contributes to their spiritual welfare, the diocesan Bishop can dispense the faithful from disciplinary laws, both universal laws and those particular laws made by the supreme ecclesiastical authority for his territory or his subjects. He cannot dispense from procedural laws or from penal laws, nor from those whose dispensation is specially reserved to the Apostolic See or to some other authority. [See Authentic Interpretation of canon 87
§1, 5.VII.1985 concerning dispensation from canonical form for the marriage of two Catholics; Authentic Interpretation of canon 767
§1, 20.VI.1987 concerning dispensation from the reservation of the homily to a priest or deacon]
§2 If recourse to the Holy See is difficult, and at the same time there is danger of grave harm in delay, any Ordinary can dispense from these laws, even if the dispensation is reserved to the Holy See, provided the dispensation is one which the Holy See customarily grants in the same circumstances, and without prejudice to can. 291.

The local Ordinary can dispense from diocesan laws and, whenever he judges that it contributes to the spiritual welfare of the faithful, from laws made by a plenary or a provincial Council or by the Episcopal Conference.

Parish priests and other priests or deacons cannot dispense from universal or particular law unless this power is expressly granted to them.

§1 A dispensation from an ecclesiastical law is not to be given without a just and reasonable cause, taking into account the circumstances of the case and the importance of the law from which the dispensation is given; otherwise the dispensation is unlawful and, unless given by the legislator or his superior, it is also invalid.
§2 A dispensation given in doubt about the sufficiency of its reason is valid and lawful.

In respect of their subjects, even if these are outside the territory, those who have the power of dispensing can exercise it even if they themselves are outside their territory; unless the contrary is expressly provided, they can exercise it also in respect of peregrini actually present in the territory; they can exercise it too in respect of themselves.

A strict interpretation is to be given not only to a dispensation in accordance with can. 36
§1, but also to the very power of dispensing granted for a specific case.

A dispensation capable of successive applications ceases in the same way as a privilege. It also ceases by the certain and complete cessation of the motivating reason.