Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.292387
Natalia Khliborob
The relevance of the topic is driven by the rapid development of digital technologies and the implementation of automated systems in various aspects of life, including the administrative sphere. The aim of the article is to investigate and analyze the procedure for considering and resolving administrative cases in automatic mode according to the Law of Ukraine "On Administrative Procedure." Achieving this goal became possible through the use of a comprehensive set of scientific methods, including legislative analysis, comparative analysis of foreign experience, and legal analysis of the provisions of the law. The key provisions of the Law of Ukraine "On Administrative Procedure" related to the automatic mode of considering administrative cases have been examined. It is noted that the law requires amendments to specify the use of automation, establish legal frameworks for this method of resolving administrative cases, and provide clear legal regulation of aspects such as the legal stability of automatically adopted administrative acts, rights, and obligations of citizens in this context. It is established that defining the responsibilities of administrative bodies in providing information and clarification to individuals about the automatic mode is a crucial aspect for safeguarding citizens' rights. Emphasis is placed on the necessity for further legislative improvements to consider aspects of legal definiteness, protection of individuals' rights, and the neutrality of decisions, ensuring fairness in the resolution of administrative cases in automatic mode. Conclusions and recommendations for further improvements in legislation and the practice of handling administrative cases in automatic mode have been formulated based on the conducted research. Prospects for further research include an extended analysis of the effectiveness of implementing automated systems in the field of public administration.
{"title":"Review and Resolution of Administrative Cases in Automated Mode in Light of the Law “On Administrative Procedure”","authors":"Natalia Khliborob","doi":"10.21564/2414-990x.163.292387","DOIUrl":"https://doi.org/10.21564/2414-990x.163.292387","url":null,"abstract":"The relevance of the topic is driven by the rapid development of digital technologies and the implementation of automated systems in various aspects of life, including the administrative sphere. The aim of the article is to investigate and analyze the procedure for considering and resolving administrative cases in automatic mode according to the Law of Ukraine \"On Administrative Procedure.\" Achieving this goal became possible through the use of a comprehensive set of scientific methods, including legislative analysis, comparative analysis of foreign experience, and legal analysis of the provisions of the law. The key provisions of the Law of Ukraine \"On Administrative Procedure\" related to the automatic mode of considering administrative cases have been examined. It is noted that the law requires amendments to specify the use of automation, establish legal frameworks for this method of resolving administrative cases, and provide clear legal regulation of aspects such as the legal stability of automatically adopted administrative acts, rights, and obligations of citizens in this context. It is established that defining the responsibilities of administrative bodies in providing information and clarification to individuals about the automatic mode is a crucial aspect for safeguarding citizens' rights. Emphasis is placed on the necessity for further legislative improvements to consider aspects of legal definiteness, protection of individuals' rights, and the neutrality of decisions, ensuring fairness in the resolution of administrative cases in automatic mode. Conclusions and recommendations for further improvements in legislation and the practice of handling administrative cases in automatic mode have been formulated based on the conducted research. Prospects for further research include an extended analysis of the effectiveness of implementing automated systems in the field of public administration.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"50 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139149605","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.291886
Oksana Shevchuk, N. Mentukh
The relevance of the topic is due to the fact that the idea of establishing a free trade area and the single market of the European Union (hereinafter - the EU) between Ukraine and the EU countries in accordance with the Association Agreement with the EU and its Member States, as well as the strict fulfilment of obligations to ensure a zone of economic competition, aims at creating a competitive environment in which business entities enjoy equal competitive conditions and operate in accordance with the same generally accepted rules. The purpose of the study is to analyse various scientific approaches to understanding the administrative procedure, to define its features, and to determine the criteria for classifying the formation and development of administrative procedures in the field of economic activity. The methodological basis of the article is a set of methods and techniques of scientific cognition, both general scientific (logical, historical and legal, systemic analysis, etc.) and special (documentary analysis, comparative legal methods, etc.), which contributes to the achievement of the set goals, ensures a complete and comprehensive understanding of the research topic, scientific reliability and convincing results. The author identifies the characteristic features of administrative procedures: openness, focus on the realisation of public interests, consistent orderliness, normativity, discretion, etc. The criteria for classification of administrative procedures have also been the subject of debate, which eventually led to the development of a significant number of them. The author determines that the content of administrative procedures is the procedure for consideration and resolution of individual administrative cases by administrative authorities and local self-government bodies with a view to protecting the rights and legitimate interests, and also to fulfilling the statutory obligations of all subjects of legal relations. Based on the study, the author formulates conclusions and provides recommendations on the need to amend the Law of Ukraine "On Administrative Procedure" to regulate the mechanism of implementation of the principle of "tacit consent" in legal relations between public authorities and business entities. The introduction of the principle of tacit consent in practice should solve a number of problems in the area of issuing permits. The main ones are: reducing the real time spent by business entities on obtaining permits; limiting the opportunities for abuse by representatives of public authorities related to the delay in the timeframe for issuing pre-trial documents established by the current legislation; business entities avoid unjustified termination or suspension of business activities.
{"title":"Administrative Procedures in the Field of Economic Activity","authors":"Oksana Shevchuk, N. Mentukh","doi":"10.21564/2414-990x.163.291886","DOIUrl":"https://doi.org/10.21564/2414-990x.163.291886","url":null,"abstract":"The relevance of the topic is due to the fact that the idea of establishing a free trade area and the single market of the European Union (hereinafter - the EU) between Ukraine and the EU countries in accordance with the Association Agreement with the EU and its Member States, as well as the strict fulfilment of obligations to ensure a zone of economic competition, aims at creating a competitive environment in which business entities enjoy equal competitive conditions and operate in accordance with the same generally accepted rules. The purpose of the study is to analyse various scientific approaches to understanding the administrative procedure, to define its features, and to determine the criteria for classifying the formation and development of administrative procedures in the field of economic activity. The methodological basis of the article is a set of methods and techniques of scientific cognition, both general scientific (logical, historical and legal, systemic analysis, etc.) and special (documentary analysis, comparative legal methods, etc.), which contributes to the achievement of the set goals, ensures a complete and comprehensive understanding of the research topic, scientific reliability and convincing results. The author identifies the characteristic features of administrative procedures: openness, focus on the realisation of public interests, consistent orderliness, normativity, discretion, etc. The criteria for classification of administrative procedures have also been the subject of debate, which eventually led to the development of a significant number of them. The author determines that the content of administrative procedures is the procedure for consideration and resolution of individual administrative cases by administrative authorities and local self-government bodies with a view to protecting the rights and legitimate interests, and also to fulfilling the statutory obligations of all subjects of legal relations. Based on the study, the author formulates conclusions and provides recommendations on the need to amend the Law of Ukraine \"On Administrative Procedure\" to regulate the mechanism of implementation of the principle of \"tacit consent\" in legal relations between public authorities and business entities. The introduction of the principle of tacit consent in practice should solve a number of problems in the area of issuing permits. The main ones are: reducing the real time spent by business entities on obtaining permits; limiting the opportunities for abuse by representatives of public authorities related to the delay in the timeframe for issuing pre-trial documents established by the current legislation; business entities avoid unjustified termination or suspension of business activities.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"16 s4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139150063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.294425
Jowanka Jakubek-Lalik
The issue of administrative silence is a significant challenge not only for the countries undergoing structural legal reforms, but also in established democracies with stable rule of law systems. Administrative inaction or delayed activity pose serious problems for the citizens, impact their individual rights, but also questions the overall effectiveness of public administration. In general, two models of addressing this case of maladministration are adopted: the negative (where silence means tacit rejection) and positive (where silence means approval). However, in practice of many countries, the solutions are mixed and much more complex. The effective way of dealing with administrative silence seems to be a matter of practice of public administration bodies, good cooperation with administrative courts, and respectful approach to individual rights of the citizens. Ukraine is currently undergoing a major reform of administrative procedure. The newly adopted and currently implemented Law on Administrative Procedure (LAP) provides a comprehensive approach to regulation of administrative proceedings and addresses many challenges relating to the operation of public administration. It is important to test the new solutions and observe how they function in practice, as well as to identify potential weaknesses and possibilities for improvement. Administrative silence, as a substantial challenge to the proper functioning of public administration, needs to be effectively addressed by the legal norms and practice, possibly with the inspiration of the good practices from the other European countries.
{"title":"Administrative silence as the challenge in regulation of administrative proceedings. Best practices and successful measures adopted by selected EU countries in the context of Ukrainian law \"on administrative procedure\"","authors":"Jowanka Jakubek-Lalik","doi":"10.21564/2414-990x.163.294425","DOIUrl":"https://doi.org/10.21564/2414-990x.163.294425","url":null,"abstract":"The issue of administrative silence is a significant challenge not only for the countries undergoing structural legal reforms, but also in established democracies with stable rule of law systems. Administrative inaction or delayed activity pose serious problems for the citizens, impact their individual rights, but also questions the overall effectiveness of public administration. In general, two models of addressing this case of maladministration are adopted: the negative (where silence means tacit rejection) and positive (where silence means approval). However, in practice of many countries, the solutions are mixed and much more complex. The effective way of dealing with administrative silence seems to be a matter of practice of public administration bodies, good cooperation with administrative courts, and respectful approach to individual rights of the citizens. Ukraine is currently undergoing a major reform of administrative procedure. The newly adopted and currently implemented Law on Administrative Procedure (LAP) provides a comprehensive approach to regulation of administrative proceedings and addresses many challenges relating to the operation of public administration. It is important to test the new solutions and observe how they function in practice, as well as to identify potential weaknesses and possibilities for improvement. Administrative silence, as a substantial challenge to the proper functioning of public administration, needs to be effectively addressed by the legal norms and practice, possibly with the inspiration of the good practices from the other European countries.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"44 34","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139151289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.294431
T. Bilous-Osin
The relevance of the study of the licensing procedure of educational activity is determined primarily by the need to improve the legislation on higher education within the scope of the Law of Ukraine "On Administrative Procedures". Normative acts regulating the licensing of educational activities are classified depending on the subject of regulation and are distinguished: 1) those regulating the static characteristics of licensing of educational activities; 2) those regulating the dynamic characteristics of educational activity licensing. It is substantiated that the procedure for licensing educational activity is a public procedure related to the exercise of the right to educational activity. The features characteristic of the educational activity licensing procedure as a type of administrative procedure are singled out, namely: it is carried out in the manner determined by the legislation on higher education; concerns public-legal relations regarding the provision of rights, freedoms or legitimate interests of individuals in the field of educational activity; is decided with the participation of an administrative body - an executive body, or rather the Ministry of Education and Science; as a result of the administrative procedure, the license is accepted as an administrative act, etc. It was concluded that according to the classification criteria, the licensing procedure of educational activity is a type of: 1) special partial; 2) law enforcement; 3) non-jurisdictional; 4) external; 5) declaratory administrative procedure. It has been established that a license is a decision of an individual nature, which is taken by an executive body authorized to perform the functions of public administration to resolve a specific case for the acquisition, change, termination or realization of rights and/or obligations in the field of education.
{"title":"Educational Activity Licensing Procedure: Administrative and Legal Nature","authors":"T. Bilous-Osin","doi":"10.21564/2414-990x.163.294431","DOIUrl":"https://doi.org/10.21564/2414-990x.163.294431","url":null,"abstract":"The relevance of the study of the licensing procedure of educational activity is determined primarily by the need to improve the legislation on higher education within the scope of the Law of Ukraine \"On Administrative Procedures\". Normative acts regulating the licensing of educational activities are classified depending on the subject of regulation and are distinguished: 1) those regulating the static characteristics of licensing of educational activities; 2) those regulating the dynamic characteristics of educational activity licensing. It is substantiated that the procedure for licensing educational activity is a public procedure related to the exercise of the right to educational activity. The features characteristic of the educational activity licensing procedure as a type of administrative procedure are singled out, namely: it is carried out in the manner determined by the legislation on higher education; concerns public-legal relations regarding the provision of rights, freedoms or legitimate interests of individuals in the field of educational activity; is decided with the participation of an administrative body - an executive body, or rather the Ministry of Education and Science; as a result of the administrative procedure, the license is accepted as an administrative act, etc. It was concluded that according to the classification criteria, the licensing procedure of educational activity is a type of: 1) special partial; 2) law enforcement; 3) non-jurisdictional; 4) external; 5) declaratory administrative procedure. It has been established that a license is a decision of an individual nature, which is taken by an executive body authorized to perform the functions of public administration to resolve a specific case for the acquisition, change, termination or realization of rights and/or obligations in the field of education.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"82 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139151890","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.291781
R. Myroniuk, Stanislava Myroniuk
The topicality of the topic is due to the study of various forms and procedures of pre-trial settlement of administrative-legal disputes as alternatives to the judicial procedure for consideration of this category of disputes, which requires a much larger public resource. The purpose of the study is to carry out a scientific analysis of the legal nature of pre-trial procedures for resolving public-law disputes, their types, as well as substantiating proposals for their improvement. The tasks of the research are to carry out a theoretical-legal analysis of the concept and content of "administrative procedures", to define the concept of "procedures for pre-trial settlement of administrative-legal disputes", to clarify its content and types. Achieving the outlined goal and fulfilling the set tasks became possible thanks to the use of a complex of methods of scientific knowledge, in particular the dialectical method, the use of which made it possible to comprehensively reveal the nature of "administrative procedure" as a form of pre-trial settlement of an administrative-legal dispute, as well as to trace the genesis of this phenomenon; the formal legal method was used to establish the content of legal norms and analyze the practice of their application by courts. As a result of the study, it was established that the procedure for pre-trial settlement of administrative-legal disputes should be understood as a legally defined sequence of actions of a subject of authority or another authorized person aimed at taking measures to resolve an administrative-legal dispute out of court. The following alternative procedural forms of pre-trial and out-of-court settlement of administrative-legal disputes are singled out: 1) administrative procedure for consideration of complaints against decisions, actions or inaction of subjects of authority, in accordance with the Law of Ukraine "On Appeals of Citizens"; 2) the procedure for appealing an administrative act of a subject of authority, in accordance with the Law of Ukraine "On Administrative Procedure"; 3) mediation – an out-of-court procedure for the settlement of a public-law conflict (dispute), which is carried out with the help (mediation) of a mediator; 4) reaching a tax compromise when resolving tax disputes, in accordance with the Tax Code of Ukraine; 5) the procedure for administrative appeal of decisions in cases of administrative offenses, in accordance with the procedure specified by the Code of Ukraine on Administrative Offenses and the Customs Code of Ukraine. It has been proven that the most complete content of this procedure is defined in the Law of Ukraine "On Administrative Procedure", which gives reasons to distinguish the following stages of it: initiation of administrative proceedings (complaint and decision, action or inaction of the subject of authority) and filing of such a complaint directly to the entity authorized to consider it or through the Centers for the provision of administrative
{"title":"Сoncept, Content and Types of Procedures for Pre-Court Settlement of Administrative and Legal Disputes","authors":"R. Myroniuk, Stanislava Myroniuk","doi":"10.21564/2414-990x.163.291781","DOIUrl":"https://doi.org/10.21564/2414-990x.163.291781","url":null,"abstract":"The topicality of the topic is due to the study of various forms and procedures of pre-trial settlement of administrative-legal disputes as alternatives to the judicial procedure for consideration of this category of disputes, which requires a much larger public resource. The purpose of the study is to carry out a scientific analysis of the legal nature of pre-trial procedures for resolving public-law disputes, their types, as well as substantiating proposals for their improvement. The tasks of the research are to carry out a theoretical-legal analysis of the concept and content of \"administrative procedures\", to define the concept of \"procedures for pre-trial settlement of administrative-legal disputes\", to clarify its content and types. Achieving the outlined goal and fulfilling the set tasks became possible thanks to the use of a complex of methods of scientific knowledge, in particular the dialectical method, the use of which made it possible to comprehensively reveal the nature of \"administrative procedure\" as a form of pre-trial settlement of an administrative-legal dispute, as well as to trace the genesis of this phenomenon; the formal legal method was used to establish the content of legal norms and analyze the practice of their application by courts. As a result of the study, it was established that the procedure for pre-trial settlement of administrative-legal disputes should be understood as a legally defined sequence of actions of a subject of authority or another authorized person aimed at taking measures to resolve an administrative-legal dispute out of court. The following alternative procedural forms of pre-trial and out-of-court settlement of administrative-legal disputes are singled out: 1) administrative procedure for consideration of complaints against decisions, actions or inaction of subjects of authority, in accordance with the Law of Ukraine \"On Appeals of Citizens\"; 2) the procedure for appealing an administrative act of a subject of authority, in accordance with the Law of Ukraine \"On Administrative Procedure\"; 3) mediation – an out-of-court procedure for the settlement of a public-law conflict (dispute), which is carried out with the help (mediation) of a mediator; 4) reaching a tax compromise when resolving tax disputes, in accordance with the Tax Code of Ukraine; 5) the procedure for administrative appeal of decisions in cases of administrative offenses, in accordance with the procedure specified by the Code of Ukraine on Administrative Offenses and the Customs Code of Ukraine. It has been proven that the most complete content of this procedure is defined in the Law of Ukraine \"On Administrative Procedure\", which gives reasons to distinguish the following stages of it: initiation of administrative proceedings (complaint and decision, action or inaction of the subject of authority) and filing of such a complaint directly to the entity authorized to consider it or through the Centers for the provision of administrative ","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"340 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139152201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.291971
Anatoly Osadchyi
The relevance of the research topic is determined by the need to adapt the institution of administrative procedures to social relations that are formed with the use of digital technologies. The purpose of the article is to study the impact of digitalization on administrative procedures, taking into account the latest changes in the legal regulation of legal relations arising due to information and communication technologies. To achieve it within the framework of the system approach, a set of general scientific and special methods of cognition is used. The basis of the research is the dialectical method of scientific knowledge of the phenomena of reality in their development and interrelationship. Achieving certain research objectives necessitated the use of such methods as: formal-logical (dogmatic), system analysis, structural-functional, and others, which made it possible to comprehensively investigate problematic aspects of the implementation of administrative procedures in digital form. Both normative acts defining the basics of legal relations in digital form and normative acts regulating administrative procedures were analyzed. Aspects of electronic identification of subjects of administrative procedures are disclosed. It is emphasized that the digitization of administrative procedures allows to significantly simplify and speed up procedural activities as a result of ensuring the receipt of reliable information through information and communication systems, which is necessary to establish the actual circumstances of an administrative case. It was emphasized that at present the electronic form of administrative procedures cannot be without alternatives. In order to prevent indirect discrimination due to different possibilities of access to information and communication technologies for participation in administrative procedures, it is necessary to implement a set of measures aimed at overcoming "digital inequality".
{"title":"Digitalization of Administrative Procedures","authors":"Anatoly Osadchyi","doi":"10.21564/2414-990x.163.291971","DOIUrl":"https://doi.org/10.21564/2414-990x.163.291971","url":null,"abstract":"The relevance of the research topic is determined by the need to adapt the institution of administrative procedures to social relations that are formed with the use of digital technologies. The purpose of the article is to study the impact of digitalization on administrative procedures, taking into account the latest changes in the legal regulation of legal relations arising due to information and communication technologies. To achieve it within the framework of the system approach, a set of general scientific and special methods of cognition is used. The basis of the research is the dialectical method of scientific knowledge of the phenomena of reality in their development and interrelationship. Achieving certain research objectives necessitated the use of such methods as: formal-logical (dogmatic), system analysis, structural-functional, and others, which made it possible to comprehensively investigate problematic aspects of the implementation of administrative procedures in digital form. Both normative acts defining the basics of legal relations in digital form and normative acts regulating administrative procedures were analyzed. Aspects of electronic identification of subjects of administrative procedures are disclosed. It is emphasized that the digitization of administrative procedures allows to significantly simplify and speed up procedural activities as a result of ensuring the receipt of reliable information through information and communication systems, which is necessary to establish the actual circumstances of an administrative case. It was emphasized that at present the electronic form of administrative procedures cannot be without alternatives. In order to prevent indirect discrimination due to different possibilities of access to information and communication technologies for participation in administrative procedures, it is necessary to implement a set of measures aimed at overcoming \"digital inequality\".","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"1 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139148867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.292172
J. Briede, Iryna Boiko
The topicality of the topic is due to the entry into force of the Law of Ukraine "On Administrative Procedure", which establishes unified rules for making decisions by the public administration, which are generally called administrative acts. The purpose of the article is to study the nature of administrative acts by highlighting their features, which will have not only theoretical, but also practical significance. The research uses methods of legal analysis and synthesis, comparative-legal, systemic-structural. It has been established that the external orientation of an administrative act means that the administrative body addresses its prescriptions to a person who is outside the public administration and does not have a labor or official relationship with it. It was established that the administrative act is a legal act, as it is based on the prescriptions of legislative acts; on this basis, it differs from actual actions. The difference between administrative and technical acts or simple acts in the field of public law is indicated. It was determined that the decision to refuse to meet the requirements of a person is a negative administrative act. It is emphasized that an administrative act is a decision in the field of public law; the theory of interests, the theory of subordination, and the theory of subjects were used to distinguish between public and private law. The subject of the adoption of an administrative act is the body performing the functions of public administration. It is noted that the functional approach embedded in his understanding allows him to consider both subjects of delegated powers, specially created commissions, and private individuals, if the legislator has empowered them to carry out public administration. It is emphasized that the legislator determines which acts are not administrative. On the basis of the conducted research, conclusions were formulated regarding the features of administrative acts, which include the following: external orientation, legal act, sphere of public law, adopted by the body, applies to an individually determined person or persons, establishes, changes or terminates legal relations or establishes the actual state, is not one from the decisions specified in the negative part of the definition of an administrative act or the adoption of which is not covered by the law. Recommendations are given regarding the use in practice of the features of an administrative act as criteria for determining the nature of the body's decision/action.
{"title":"Legal Nature and Characteristics of Administrative Act (in the Comparative Context of Latvia and Ukraine)","authors":"J. Briede, Iryna Boiko","doi":"10.21564/2414-990x.163.292172","DOIUrl":"https://doi.org/10.21564/2414-990x.163.292172","url":null,"abstract":"The topicality of the topic is due to the entry into force of the Law of Ukraine \"On Administrative Procedure\", which establishes unified rules for making decisions by the public administration, which are generally called administrative acts. The purpose of the article is to study the nature of administrative acts by highlighting their features, which will have not only theoretical, but also practical significance. The research uses methods of legal analysis and synthesis, comparative-legal, systemic-structural. It has been established that the external orientation of an administrative act means that the administrative body addresses its prescriptions to a person who is outside the public administration and does not have a labor or official relationship with it. It was established that the administrative act is a legal act, as it is based on the prescriptions of legislative acts; on this basis, it differs from actual actions. The difference between administrative and technical acts or simple acts in the field of public law is indicated. It was determined that the decision to refuse to meet the requirements of a person is a negative administrative act. It is emphasized that an administrative act is a decision in the field of public law; the theory of interests, the theory of subordination, and the theory of subjects were used to distinguish between public and private law. The subject of the adoption of an administrative act is the body performing the functions of public administration. It is noted that the functional approach embedded in his understanding allows him to consider both subjects of delegated powers, specially created commissions, and private individuals, if the legislator has empowered them to carry out public administration. It is emphasized that the legislator determines which acts are not administrative. On the basis of the conducted research, conclusions were formulated regarding the features of administrative acts, which include the following: external orientation, legal act, sphere of public law, adopted by the body, applies to an individually determined person or persons, establishes, changes or terminates legal relations or establishes the actual state, is not one from the decisions specified in the negative part of the definition of an administrative act or the adoption of which is not covered by the law. Recommendations are given regarding the use in practice of the features of an administrative act as criteria for determining the nature of the body's decision/action.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"26 30","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139148075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.292799
Rodion Nehara
The relevance of the study of types of administrative acts is determined primarily by the fact that an administrative act as the main tool of activity, recognized by the provisions of the Law of Ukraine "On Administrative Procedure", although it is accepted (performed) daily by all subjects of public administration exercising public power in the relevant spheres of public life , the forms of their external and legal expression, the cases, grounds and order of their acceptance (commitment), the matters on which they are accepted (committed), as well as their focus on the acquisition, change, termination or realization of rights and/or obligations differ, provided by the current legislation of a private person. Taking into account the arrangement and systematization of administrative acts, it seems possible only with the help of their classification. In this regard, the purpose of the article is to identify and research the types of administrative acts provided for in the legislation of Ukraine on administrative procedure, and their theoretical and legal analysis. Research methods include general and special methods of scientific knowledge, the method of system analysis, the dialectical method, formal-logical methods, structural-functional and comparative-legal methods, as well as a number of empirical methods, which ultimately made it possible to determine and analyze existing approaches to distinguishing types of administrative acts , to carry out their comparative characteristics, as well as to characterize the provisions of the legislation on administrative procedure regarding the definition of types of administrative acts. As a result of the conducted research, the classification of administrative acts was carried out according to the form of acceptance (commitment); according to the method of production (formation); by direction of content; according to the nature of the effect of administrative acts; depending on the number of persons to whom the administrative act applies; according to the quality of the execution of administrative acts, and their theoretical and legal analysis was carried out taking into account the provisions of the latest legislation on administrative procedure. It is substantiated that the potential of the classification of administrative acts is also revealed in the fact that, with its help, it seems possible to distinguish administrative acts from other instruments of activity of public authorities, in particular, regulatory acts and administrative contracts, and political decisions, official orders, etc. This proves that the classification of administrative acts is a promising direction for further scientific research. At the same time, it was noted that the principle in the aspect of research of types of administrative acts is the applied orientation of the proposed classifications and the support of each of the selected types of administrative acts with specific examples.
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Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.291893
O.V. Haran
The relevance of the research is determined by the novelty of the topic, taking into account the Law of Ukraine "On Administrative Procedure". The purpose of the study is to characterize the category "guaranteeing effective legal remedies" in the national administrative legal doctrine, taking into account the European standards for the protection of the rights, freedoms and interests of the individual, and to determine the directions of research into the problems of challenging administrative acts in public administration. The research uses many methods, including general scientific and special legal ones: comparative legal, systemic structural, analysis, synthesis, and others, which makes it possible to systematically and consistently approach the solution of scientific problems, to investigate different positions of scientists, the provisions of legal acts and formulate appropriate conclusions. An analysis of the essence of the principle of guaranteeing effective legal remedies was carried out. Two components of the principle are distinguished: 1) the right of a person to appeal the decision, actions or inaction of an administrative body; 2) the duty of an administrative body to inform a person about the method, procedure and terms of filing a complaint against an administrative act that negatively affects his rights, freedom or legitimate interest. This opens the way for in-depth scientific understanding of this topic. In the process of analysis, a number of problematic moments related to the incorrect use of the provisions of this principle were revealed. It is emphasized that the implementation of the principle will affect: a) a change in the format of interaction between individuals and administrative bodies in the direction of raising the standards of such communication; b) reducing the burden on administrative courts, etc.On the basis of the conducted research, conclusions were formulated and recommendations were made, namely, that the principle of guaranteeing effective means of legal protection: 1) is based on EU standards, taking into account national specificities; 2) is an additional mechanism for the protection of persons; 3) is implemented mainly at the level of the institute of administrative appeal, which has certain advantages compared to judicial appeal. Therefore, in the context of the transformation of national legislation, there is a need to conduct additional research on the specifics of the implementation of this principle, taking into account the realities of today.
{"title":"The Principle of Guaranteeing Effective Means of Legal Protection: European and National Concept","authors":"O.V. Haran","doi":"10.21564/2414-990x.163.291893","DOIUrl":"https://doi.org/10.21564/2414-990x.163.291893","url":null,"abstract":"The relevance of the research is determined by the novelty of the topic, taking into account the Law of Ukraine \"On Administrative Procedure\". The purpose of the study is to characterize the category \"guaranteeing effective legal remedies\" in the national administrative legal doctrine, taking into account the European standards for the protection of the rights, freedoms and interests of the individual, and to determine the directions of research into the problems of challenging administrative acts in public administration. The research uses many methods, including general scientific and special legal ones: comparative legal, systemic structural, analysis, synthesis, and others, which makes it possible to systematically and consistently approach the solution of scientific problems, to investigate different positions of scientists, the provisions of legal acts and formulate appropriate conclusions. An analysis of the essence of the principle of guaranteeing effective legal remedies was carried out. Two components of the principle are distinguished: 1) the right of a person to appeal the decision, actions or inaction of an administrative body; 2) the duty of an administrative body to inform a person about the method, procedure and terms of filing a complaint against an administrative act that negatively affects his rights, freedom or legitimate interest. This opens the way for in-depth scientific understanding of this topic. In the process of analysis, a number of problematic moments related to the incorrect use of the provisions of this principle were revealed. It is emphasized that the implementation of the principle will affect: a) a change in the format of interaction between individuals and administrative bodies in the direction of raising the standards of such communication; b) reducing the burden on administrative courts, etc.On the basis of the conducted research, conclusions were formulated and recommendations were made, namely, that the principle of guaranteeing effective means of legal protection: 1) is based on EU standards, taking into account national specificities; 2) is an additional mechanism for the protection of persons; 3) is implemented mainly at the level of the institute of administrative appeal, which has certain advantages compared to judicial appeal. Therefore, in the context of the transformation of national legislation, there is a need to conduct additional research on the specifics of the implementation of this principle, taking into account the realities of today.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"45 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139152204","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-12-28DOI: 10.21564/2414-990x.163.292332
Olha Soloviova
December 15, 2023 The Law of Ukraine "On Administrative Procedure" will come into force and introduce new rules for the interaction of the state with individuals (citizens and business) on the basis of the principles of good administration. A similar procedure applies in all member states of the European Union. The value of principles for relations of administrative procedure is primarily manifested in their law enforcement effect. The relevance of the topic is due to the need to ensure the practical implementation of the principles, which allows to comprehend the purpose and content of the administrative procedure, which means to create conditions for the implementation or protection of the rights and interests of the person and direct the administrative body to the conscientious execution of the assigned powers. The article is aimed at studying the new principles of administrative procedure, which for the first time are recognized as starting points for the implementation of their powers by administrative bodies. The achievement of the outlined goal became possible thanks to the use of a set of methods of scientific knowledge, with the help of which the essence of the principles of administrative procedure was determined, the provisions of normative legal acts were analyzed, in order to ensure their practical significance. The work considers such principles as openness, efficiency, presumption of legality of actions and requirements of a person, formality and guarantee of effective remedies. The characteristic of these principles on the basis of scientific approaches in the legal literature is presented and the corresponding provisions of the Law of Ukraine "On Administrative Procedure" on ensuring their practical implementation are analyzed. On the basis of the study, conclusions were formulated regarding the practical significance of the principles of administrative procedure. First, with their help, the administrative body achieves the correct application of material norms of law. Secondly, they provide minimum unified standards for ensuring the implementation and protection of the rights and legitimate interests of participants in administrative proceedings. Third, they interpret individual institutions and rules of administrative procedure. The obtained results of the study can be further used to assess the legality of the adopted administrative acts, procedural decisions and the performed procedural actions.
{"title":"Some Considerations on the Principles of Administrative Procedure","authors":"Olha Soloviova","doi":"10.21564/2414-990x.163.292332","DOIUrl":"https://doi.org/10.21564/2414-990x.163.292332","url":null,"abstract":"December 15, 2023 The Law of Ukraine \"On Administrative Procedure\" will come into force and introduce new rules for the interaction of the state with individuals (citizens and business) on the basis of the principles of good administration. A similar procedure applies in all member states of the European Union. The value of principles for relations of administrative procedure is primarily manifested in their law enforcement effect. The relevance of the topic is due to the need to ensure the practical implementation of the principles, which allows to comprehend the purpose and content of the administrative procedure, which means to create conditions for the implementation or protection of the rights and interests of the person and direct the administrative body to the conscientious execution of the assigned powers. The article is aimed at studying the new principles of administrative procedure, which for the first time are recognized as starting points for the implementation of their powers by administrative bodies. The achievement of the outlined goal became possible thanks to the use of a set of methods of scientific knowledge, with the help of which the essence of the principles of administrative procedure was determined, the provisions of normative legal acts were analyzed, in order to ensure their practical significance. The work considers such principles as openness, efficiency, presumption of legality of actions and requirements of a person, formality and guarantee of effective remedies. The characteristic of these principles on the basis of scientific approaches in the legal literature is presented and the corresponding provisions of the Law of Ukraine \"On Administrative Procedure\" on ensuring their practical implementation are analyzed. On the basis of the study, conclusions were formulated regarding the practical significance of the principles of administrative procedure. First, with their help, the administrative body achieves the correct application of material norms of law. Secondly, they provide minimum unified standards for ensuring the implementation and protection of the rights and legitimate interests of participants in administrative proceedings. Third, they interpret individual institutions and rules of administrative procedure. The obtained results of the study can be further used to assess the legality of the adopted administrative acts, procedural decisions and the performed procedural actions.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"279 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139152621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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