Pub Date : 2020-01-01DOI: 10.17721/2227-796x.2020.4.02
N. Chudyk
During the years of independence, Ukraine has undergone certain processes that have led tochanges in the relationship between government and society. These changes were not alwayspositive. State power had a high level of authority in the eyes of the Ukrainian people. The majorityof the population does not believe in the objectivity of the results of the people’s will, which, infact, stimulates interest and shows the importance of public control over the election process.The purpose of the article – is to study the correlation of the state and public control over thesuffrage of Ukraine and its influence on the formation and development of civil society.The methodological basis of the study were general scientific and special legal methods ofcognition. Among the general scientific methods used is the method of philosophical dialectics,which is revealed through the methods of analysis and synthesis, ascent from simple to complex,from abstract to concrete, modeling, abstraction, idealization and formalization.Despite the expansion of opportunities to influence the future of the country through the free willof the people, the importance and effectiveness of public control faces a number of obstacles. Forexample, the presence of underdeveloped civil society, the lack of a prescribed mechanism for publiccontrol, political indifference of citizens, the negative impact of bureaucratic manifestations – allthis and many other factors together have a negative impact on the development of civil societyand effective control for the election process. But a rather significant shortcoming in the way ofits development is the lack of scientific research on this issue.As a result of the research, it was found that through election procedures it is possible to bestbalance and reconcile the interests of political elites, social classes, groups of the whole society,to bring the government closer to the needs of the people. The public sector plays a positive role in the processes of stabilization and harmonization of relations in society and the electoral processin particular. Public control as a social phenomenon is impossible without the formation of afavorable environment for its full and effective functioning, ie without a developed civil society.The article concludes that election control can be effective only when it is carried out by anindependent third party, in our case – civil society in relation to public authorities and localgovernments, which are directly involved in ensuring the preparation and conduct of the electionprocess. Many years of international and national experience clearly show that the lack or lowlevel of public control over the electoral process and excessive state control ultimately lead tousurpation of power and falsification of election results.
{"title":"RELATIONSHIP BETWEEN STATE AND PUBLIC CONTROL OF THE ELECTION PROCESS IN UKRAINE","authors":"N. Chudyk","doi":"10.17721/2227-796x.2020.4.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.02","url":null,"abstract":"During the years of independence, Ukraine has undergone certain processes that have led tochanges in the relationship between government and society. These changes were not alwayspositive. State power had a high level of authority in the eyes of the Ukrainian people. The majorityof the population does not believe in the objectivity of the results of the people’s will, which, infact, stimulates interest and shows the importance of public control over the election process.The purpose of the article – is to study the correlation of the state and public control over thesuffrage of Ukraine and its influence on the formation and development of civil society.The methodological basis of the study were general scientific and special legal methods ofcognition. Among the general scientific methods used is the method of philosophical dialectics,which is revealed through the methods of analysis and synthesis, ascent from simple to complex,from abstract to concrete, modeling, abstraction, idealization and formalization.Despite the expansion of opportunities to influence the future of the country through the free willof the people, the importance and effectiveness of public control faces a number of obstacles. Forexample, the presence of underdeveloped civil society, the lack of a prescribed mechanism for publiccontrol, political indifference of citizens, the negative impact of bureaucratic manifestations – allthis and many other factors together have a negative impact on the development of civil societyand effective control for the election process. But a rather significant shortcoming in the way ofits development is the lack of scientific research on this issue.As a result of the research, it was found that through election procedures it is possible to bestbalance and reconcile the interests of political elites, social classes, groups of the whole society,to bring the government closer to the needs of the people. The public sector plays a positive role in the processes of stabilization and harmonization of relations in society and the electoral processin particular. Public control as a social phenomenon is impossible without the formation of afavorable environment for its full and effective functioning, ie without a developed civil society.The article concludes that election control can be effective only when it is carried out by anindependent third party, in our case – civil society in relation to public authorities and localgovernments, which are directly involved in ensuring the preparation and conduct of the electionprocess. Many years of international and national experience clearly show that the lack or lowlevel of public control over the electoral process and excessive state control ultimately lead tousurpation of power and falsification of election results.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81513095","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.2.10
G. Tamburelli
The 2014 Association Agreement between the EU and Ukraine, which replaces the 1994 Partnership and Cooperation Agreement, may be considered the most important result of a cooperation developed since the beginning of 90’s, first in the framework of the European Neighbourhood Policy, then of the Eastern Partnership. This paper analyses in an essential way the evolving relations between the EU and Ukraine, and the progress made by Ukraine in pursuing the objectives set forth in the Association Agreement. The Author considers the main features of the Agreement, and identifies and assesses the principal legal issues arising from its implementation. The Agreement is aimed at deepening political and economic relations between the EU and Ukraine, and to gradually integrate Ukraine into the EU internal market. It is the first of a new generation of EU agreements characterized by comprehensiveness, and democratic conditionality. It requires a broad and detailed work of approximation of the Ukrainian laws to the EU regulations. Reforms are foreseen in a number of key areas. Ukraine has been developing a complex strategy to reorient its legal system towards the EU. According to the 2018 Report on Implementation of the Association Agreement – prepared by the Government Office for Coordination of European and Euro-Atlantic Integration, and the Vice Prime Minister’s Office for European and Euro-Atlantic Integration, based on the outcome of performance of the objectives scheduled for 2018, the Agreement was implemented by 52%. According to the Author, in evaluating the “results achieved” by Ukraine in the approximation of the national legislation to the EU legislation, it must be taken into account the challenging situation of the country. The Government and the Verkhovna Rada have been acting with the aim to pursue the overall objectives of the Association Agreement notwithstanding the difficult political and administrative situation following the events in Crimea, the Donbass conflict, the worsening of the relations with Russia until the termination of the Treaty of Friendship and the temporary adoption of the Martial Law. He highlights the efforts of the EU in financially supporting the process of reform in Ukraine, and of Ukraine towards constitutional and legislative reforms reinforcing the European choice. Ukraine has finally developed an ad hoc institutional framework, and new legislation, including amendments to the Constitution, for the implementation of the Association Agreement. Relevant progress has been made in various sectors of the cooperation, while in various others the actions taken are not yet effective. For example, in the sector of the rule of law, various actions were taken, but modest results were achieved in the fight against corruption; while in the environment sector, which is not considered among the priorities, the Law on EIA might be considered an important achievement. In the whole, the implementation of the Association Agreement w
{"title":"NOTES ON THE RELATIONS BETWEEN THE EU AND UKRAINE AND THE PROGRESS IN THE IMPLEMENTATION OF THE ASSOCIATION AGREEMENT","authors":"G. Tamburelli","doi":"10.17721/2227-796x.2019.2.10","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.10","url":null,"abstract":"The 2014 Association Agreement between the EU and Ukraine, which replaces the 1994 Partnership and Cooperation Agreement, may be considered the most important result of a cooperation developed since the beginning of 90’s, first in the framework of the European Neighbourhood Policy, then of the Eastern Partnership. This paper analyses in an essential way the evolving relations between the EU and Ukraine, and the progress made by Ukraine in pursuing the objectives set forth in the Association Agreement. The Author considers the main features of the Agreement, and identifies and assesses the principal legal issues arising from its implementation. The Agreement is aimed at deepening political and economic relations between the EU and Ukraine, and to gradually integrate Ukraine into the EU internal market. It is the first of a new generation of EU agreements characterized by comprehensiveness, and democratic conditionality. It requires a broad and detailed work of approximation of the Ukrainian laws to the EU regulations. Reforms are foreseen in a number of key areas. Ukraine has been developing a complex strategy to reorient its legal system towards the EU. According to the 2018 Report on Implementation of the Association Agreement – prepared by the Government Office for Coordination of European and Euro-Atlantic Integration, and the Vice Prime Minister’s Office for European and Euro-Atlantic Integration, based on the outcome of performance of the objectives scheduled for 2018, the Agreement was implemented by 52%. According to the Author, in evaluating the “results achieved” by Ukraine in the approximation of the national legislation to the EU legislation, it must be taken into account the challenging situation of the country. The Government and the Verkhovna Rada have been acting with the aim to pursue the overall objectives of the Association Agreement notwithstanding the difficult political and administrative situation following the events in Crimea, the Donbass conflict, the worsening of the relations with Russia until the termination of the Treaty of Friendship and the temporary adoption of the Martial Law. He highlights the efforts of the EU in financially supporting the process of reform in Ukraine, and of Ukraine towards constitutional and legislative reforms reinforcing the European choice. Ukraine has finally developed an ad hoc institutional framework, and new legislation, including amendments to the Constitution, for the implementation of the Association Agreement. Relevant progress has been made in various sectors of the cooperation, while in various others the actions taken are not yet effective. For example, in the sector of the rule of law, various actions were taken, but modest results were achieved in the fight against corruption; while in the environment sector, which is not considered among the priorities, the Law on EIA might be considered an important achievement. In the whole, the implementation of the Association Agreement w","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"73 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76774656","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.1.06
Bruna Žuber
Purpose. This article deals with the current legislation and practice of the Republic of Slovenia concerning main hearing in an administrative dispute. Besides, the article is devoted to legal analysis of Slovenian case law and to examination of demands, established by the European Court of Human Rights regarding the right to a fair trial, particularly the right to a main hearing. Methods. To conduct the research successfully, the author used the following methods of scientific knowledge: logical (analysis, synthesis, induction, deduction), historical, systemic and formally dogmatic. Results. An integral part of the right to a fair trial is formed by the public nature of a trial, which is, in case of administrative dispute, realised on the basis of a concluded main hearing. Its aim is to ensure a democratic trial, exercise public control over a trial, as well as exercise the right of parties to the dispute and other participants in the procedure to be heard in court. This piece discusses the meaning and the role of the main hearing in an administrative dispute. It examines both legal and general social reasons which speak in favour of the execution of the main hearing. The most important decisions of the European Court of Human Rights and of domestic courts regarding the rights to the main hearing are analysed. The statistical data of the Slovenian Administrative Court on conducting main hearings as an indicator of ensuring the right to a fair trial in the Republic of Slovenia is researched. The author has reached a conclusion that the main hearing in an administrative dispute is of crucial importance with respect to exercising the right to adversarial procedure and right to fair procedure. completed hearing, of a main hearing as human right.
{"title":"The Slovenian perspective of a main hearing in an administrative dispute","authors":"Bruna Žuber","doi":"10.17721/2227-796x.2019.1.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.1.06","url":null,"abstract":"Purpose. This article deals with the current legislation and practice of the Republic of Slovenia concerning main hearing in an administrative dispute. Besides, the article is devoted to legal analysis of Slovenian case law and to examination of demands, established by the European Court of Human Rights regarding the right to a fair trial, particularly the right to a main hearing. Methods. To conduct the research successfully, the author used the following methods of scientific knowledge: logical (analysis, synthesis, induction, deduction), historical, systemic and formally dogmatic. Results. An integral part of the right to a fair trial is formed by the public nature of a trial, which is, in case of administrative dispute, realised on the basis of a concluded main hearing. Its aim is to ensure a democratic trial, exercise public control over a trial, as well as exercise the right of parties to the dispute and other participants in the procedure to be heard in court. This piece discusses the meaning and the role of the main hearing in an administrative dispute. It examines both legal and general social reasons which speak in favour of the execution of the main hearing. The most important decisions of the European Court of Human Rights and of domestic courts regarding the rights to the main hearing are analysed. The statistical data of the Slovenian Administrative Court on conducting main hearings as an indicator of ensuring the right to a fair trial in the Republic of Slovenia is researched. The author has reached a conclusion that the main hearing in an administrative dispute is of crucial importance with respect to exercising the right to adversarial procedure and right to fair procedure. completed hearing, of a main hearing as human right.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"16 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84350951","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 : 2019-01-01DOI: 10.17721//2227-796x.2019.2.01
P. Liutikov
The aim is to determine the content and essence of such a property of the norms of administrative law as their truth on the basis of analyzing the opinions of individual legal scholars. Methods. The validity of the theoretical claims, recommendations for further academic research into the topic, the reliability of the results are ensured by the use of a set of philosophical, general and special scientific methods applied in legal research. The dialectical method of scientific knowledge is used as the main general scien tific method. Results. It is noted that the truth of the norm of administrative law is a condition for its effectiveness. It is pointed out that the degree of effectiveness of the administrative-legal norm depends on the completeness and accuracy of reflection in it of the material and spiritual social conditions. The more adequately the rules of the administrative law reflect the combination of social and personal interests, the processes of social development, the higher the effectiveness of administrative-legal norms is. Taking into consideration the fact that efficiency is the property of the norm of administrative law, which is based on its truth, the author has assumed that the criterion of such truth will be the degree of effectiveness of the legal norm, and indicators will be specific statistical data, confirming or refuting its effectiveness and, respectively, the truth. The opinion is expressed that the truth of the norms of administrative law, as a an absolutely evaluative category, does not have to imperatively reflect the interests of a particular citizen. This does not mean that in this case the author refuses the principle of the rule of law or interprets it somehow differently than other authoritative scholars. It is suggested when defining the essence of this category to start from identifying if the norm satisfies the needs of social development. The author has determined the truth of the administrative-legal norm in terms of the initial data, which reveal the social needs at a certain stage of development of society, namely: the level of development of economic and industrial relations, the state of the natural environment and ecology in general, the state of social and political institutions (family, education and science, medicine, judicial and law enforcement systems, public administration system, etc.), the status of an individual in the society and the level of protection of their rights and interests by the state, mentality, consciousness, worldview of the society, etc. Conclusions. Based on the results of the analysis performed, the author proposes to understand the truth of the norm of administrative law as its property, which characterizes the degree of compliance of the norm with the needs of social development, the full reflection in it of the public relations, regulated by administrative law
{"title":"TRUTH OF THE NORM OF ADMINISTRATIVE LAW : ESSENCE AND CONTENT OF THE CATEGORY","authors":"P. Liutikov","doi":"10.17721//2227-796x.2019.2.01","DOIUrl":"https://doi.org/10.17721//2227-796x.2019.2.01","url":null,"abstract":"The aim is to determine the content and essence of such a property of the norms of administrative law as their truth on the basis of analyzing the opinions of individual legal scholars. Methods. The validity of the theoretical claims, recommendations for further academic research into the topic, the reliability of the results are ensured by the use of a set of philosophical, general and special scientific methods applied in legal research. The dialectical method of scientific knowledge is used as the main general scien tific method. Results. It is noted that the truth of the norm of administrative law is a condition for its effectiveness. It is pointed out that the degree of effectiveness of the administrative-legal norm depends on the completeness and accuracy of reflection in it of the material and spiritual social conditions. The more adequately the rules of the administrative law reflect the combination of social and personal interests, the processes of social development, the higher the effectiveness of administrative-legal norms is. Taking into consideration the fact that efficiency is the property of the norm of administrative law, which is based on its truth, the author has assumed that the criterion of such truth will be the degree of effectiveness of the legal norm, and indicators will be specific statistical data, confirming or refuting its effectiveness and, respectively, the truth. The opinion is expressed that the truth of the norms of administrative law, as a an absolutely evaluative category, does not have to imperatively reflect the interests of a particular citizen. This does not mean that in this case the author refuses the principle of the rule of law or interprets it somehow differently than other authoritative scholars. It is suggested when defining the essence of this category to start from identifying if the norm satisfies the needs of social development. The author has determined the truth of the administrative-legal norm in terms of the initial data, which reveal the social needs at a certain stage of development of society, namely: the level of development of economic and industrial relations, the state of the natural environment and ecology in general, the state of social and political institutions (family, education and science, medicine, judicial and law enforcement systems, public administration system, etc.), the status of an individual in the society and the level of protection of their rights and interests by the state, mentality, consciousness, worldview of the society, etc. Conclusions. Based on the results of the analysis performed, the author proposes to understand the truth of the norm of administrative law as its property, which characterizes the degree of compliance of the norm with the needs of social development, the full reflection in it of the public relations, regulated by administrative law","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87124469","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 : 2019-01-01DOI: 10.17721/2227-796X.2019.1.09
S. Maĭstruk
{"title":"Role of “entrepreneurs” in implementation of international regulation","authors":"S. Maĭstruk","doi":"10.17721/2227-796X.2019.1.09","DOIUrl":"https://doi.org/10.17721/2227-796X.2019.1.09","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"89 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89773937","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.4.11
Azamat Egamberdiev
I. EinleitungII. Allgemeine Prinzipien des Rechtsschutzes der Bürger gegen Verwaltungshandeln1. Das Wesen der gerichtlichen Verwaltungskontrolle2. Grundstrukturen des VerwaltungsrechtsschutzesIII. Theoretische Grundlagen und einige Probleme der Entwicklung der Verwaltungsgerichtsbarkeit1. Verwaltungsgerichtsbarkeit als ein wissenschaftliches Problema) Diskussion um die Schaffung einer Verwaltungsgerichtsbarkeitb) Begriffe und verfassungsrechtliche Herausforderungenc) Tragende Prinzipien eines rechtsstaatlichen Anforderungen entsprechenden Verwaltungsprozessesd) Verwaltungsgerichtsbarkeit als wichtige Einrichtung im öffentlichen Interesse2. Relevante gesellschaftliche, politische und rechtliche Bedingungen für die Akzeptanz der Verwaltungsgerichtsbarkeita) Das Wesen der Verwaltungsreform als Systementscheidungb) Rolle des Rechts in der rechtsstaatlichen Modernisierung des StaatesIV. Schlussbemerkungen
{"title":"EINIGE PROBLEME DER ENTWICKLUNG DER VERWALTUNGSGERICHTSBARKEIT IN DER REPUBLIK USBEKISTAN","authors":"Azamat Egamberdiev","doi":"10.17721/2227-796x.2019.4.11","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.11","url":null,"abstract":"I. EinleitungII. Allgemeine Prinzipien des Rechtsschutzes der Bürger gegen Verwaltungshandeln1. Das Wesen der gerichtlichen Verwaltungskontrolle2. Grundstrukturen des VerwaltungsrechtsschutzesIII. Theoretische Grundlagen und einige Probleme der Entwicklung der Verwaltungsgerichtsbarkeit1. Verwaltungsgerichtsbarkeit als ein wissenschaftliches Problema) Diskussion um die Schaffung einer Verwaltungsgerichtsbarkeitb) Begriffe und verfassungsrechtliche Herausforderungenc) Tragende Prinzipien eines rechtsstaatlichen Anforderungen entsprechenden Verwaltungsprozessesd) Verwaltungsgerichtsbarkeit als wichtige Einrichtung im öffentlichen Interesse2. Relevante gesellschaftliche, politische und rechtliche Bedingungen für die Akzeptanz der Verwaltungsgerichtsbarkeita) Das Wesen der Verwaltungsreform als Systementscheidungb) Rolle des Rechts in der rechtsstaatlichen Modernisierung des StaatesIV. Schlussbemerkungen","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"200 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76963020","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.4.09
A. Barikova
Goal. The paper reveals features of applying administrative procedural legal fictions in order to avoid abuse of the right and evasion of the law when exercising procedural discretion. Methods. For achievement of research purposes, the author uses special legal methods of scientific knowledge: formal-logical, system-functional, formal-logical, comparative-legal. Results. Historiography of the legal fictions use has been dealt with. Essence of fictions has been highlighted in the paper as legal anomalies. The use of legal fictions in the administrative process has been detailed, taking into account the Grundnorm theory. The connection between legal fictions and legal regulations has been revealed. The legal fiction has been described as a reinterpretation of the facts of an event in order to make these facts compatible with the rule, and at the same time allowing to get the correct result. This is a type of legal fiction-reinterpreting X (or class X) as Y in order to avoid an “inconvenient”, unreliable, false, etc. result for the purposes of the law. As a rule, it is recognized that X is not Y. That is, the court considers the creation of a fiction as a legitimate action within the framework of the judicial process; the activity that could be performed without concealment as a discretely true category. Case law on the application of legal fictions has been described. It has been advised to use legal fictions when considering and resolving disputes, provided that there are false or clearly erroneous judgments in the provisions of existing applicable legal rules. As a consequence, time and resource costs for clarifying the facts of the case and over-motivating the judgment are minimized. Conclusions. Firstly, features of legal fictions have been highlighted, in particular, for achieving the goals and objectives of administrative proceedings. Secondly, the classification of arguments, methods and approaches to the application of such atypical regulators in the administrative process has been proposed by the “meta” degree: 1) on the fundamental metric – internal, or zero-order arguments; 2) at the derivative definitive level – by defining functional, structural and relative concepts.
{"title":"LEGAL FICTIONS FOR ADMINISTRATIVE COURTS","authors":"A. Barikova","doi":"10.17721/2227-796x.2019.4.09","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.09","url":null,"abstract":"Goal. The paper reveals features of applying administrative procedural legal fictions in order to avoid abuse of the right and evasion of the law when exercising procedural discretion. Methods. For achievement of research purposes, the author uses special legal methods of scientific knowledge: formal-logical, system-functional, formal-logical, comparative-legal. Results. Historiography of the legal fictions use has been dealt with. Essence of fictions has been highlighted in the paper as legal anomalies. The use of legal fictions in the administrative process has been detailed, taking into account the Grundnorm theory. The connection between legal fictions and legal regulations has been revealed. The legal fiction has been described as a reinterpretation of the facts of an event in order to make these facts compatible with the rule, and at the same time allowing to get the correct result. This is a type of legal fiction-reinterpreting X (or class X) as Y in order to avoid an “inconvenient”, unreliable, false, etc. result for the purposes of the law. As a rule, it is recognized that X is not Y. That is, the court considers the creation of a fiction as a legitimate action within the framework of the judicial process; the activity that could be performed without concealment as a discretely true category. Case law on the application of legal fictions has been described. It has been advised to use legal fictions when considering and resolving disputes, provided that there are false or clearly erroneous judgments in the provisions of existing applicable legal rules. As a consequence, time and resource costs for clarifying the facts of the case and over-motivating the judgment are minimized. Conclusions. Firstly, features of legal fictions have been highlighted, in particular, for achieving the goals and objectives of administrative proceedings. Secondly, the classification of arguments, methods and approaches to the application of such atypical regulators in the administrative process has been proposed by the “meta” degree: 1) on the fundamental metric – internal, or zero-order arguments; 2) at the derivative definitive level – by defining functional, structural and relative concepts.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"79 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78341009","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.4.05
Sina Fontana
Family reunification is one of the purposes of stay within the Residence Act. The granting of the residence permit is fundamentally designed as a claim and must be granted if the requirements are met. In the course of ongoing forced migration, family reunification has become the focus of debates for ways to limit refugee migration. Since Article 6, Paragraphs 1 and 2 of the German Basic Law on the protection of marriage and family do not give rise to a right to entry, although its scope of protection must be taken into account when designing regulations on family reunification, the legislative scope for action is limited. The German legislature has decided that family reunification should be limited for persons with subsidiary protection status. Subsidiary protection is an element of protection that is shaped by EU law, which occurs alongside national asylum law and refugee protection, which is also shaped by EU law. Different requirements apply to these protective elements. Upon recognition, a humanitarian residence permit is issued, which differs in length depending on the protection status. While in the case of recognition as a person entitled to asylum or refugee status, the residence permit is initially issued for a period of one year, the duration in the case of subsidiary protection is only one year. In all cases there is the possibility of an extension. This different length of stay and the lower prospect of staying are the starting point for the restriction of family reunification for persons entitled to subsidiary protection in Section 36a of the Residence Act. As specified in the regulation as an example, family members of a person with subsidiary protection status can be granted a residence permit for the humanitarian reasons. The family reunification is now made dependent on the existence of further prerequisites in addition to family ties and is also designed not as a right but as a discretionary clause. In addition, the number of visas is limited to 1000 per month. Concerns about this restriction of family reunification were raised, in terms of possible violation of Article 6 Paragraphs 1 and 2 and Article 3 Paragraph 1 (Equality before the law) of the German Basic Law. Based on this, the following article carries out a constitutional analysis.
{"title":"MIGRATION MANAGEMENT WITHIN FAMILY REUNIFICATION","authors":"Sina Fontana","doi":"10.17721/2227-796x.2019.4.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.4.05","url":null,"abstract":"Family reunification is one of the purposes of stay within the Residence Act. The granting of the residence permit is fundamentally designed as a claim and must be granted if the requirements are met. In the course of ongoing forced migration, family reunification has become the focus of debates for ways to limit refugee migration. Since Article 6, Paragraphs 1 and 2 of the German Basic Law on the protection of marriage and family do not give rise to a right to entry, although its scope of protection must be taken into account when designing regulations on family reunification, the legislative scope for action is limited. The German legislature has decided that family reunification should be limited for persons with subsidiary protection status. Subsidiary protection is an element of protection that is shaped by EU law, which occurs alongside national asylum law and refugee protection, which is also shaped by EU law. Different requirements apply to these protective elements. Upon recognition, a humanitarian residence permit is issued, which differs in length depending on the protection status. While in the case of recognition as a person entitled to asylum or refugee status, the residence permit is initially issued for a period of one year, the duration in the case of subsidiary protection is only one year. In all cases there is the possibility of an extension. This different length of stay and the lower prospect of staying are the starting point for the restriction of family reunification for persons entitled to subsidiary protection in Section 36a of the Residence Act. As specified in the regulation as an example, family members of a person with subsidiary protection status can be granted a residence permit for the humanitarian reasons. The family reunification is now made dependent on the existence of further prerequisites in addition to family ties and is also designed not as a right but as a discretionary clause. In addition, the number of visas is limited to 1000 per month. Concerns about this restriction of family reunification were raised, in terms of possible violation of Article 6 Paragraphs 1 and 2 and Article 3 Paragraph 1 (Equality before the law) of the German Basic Law. Based on this, the following article carries out a constitutional analysis.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74957432","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.1.03
S. Mosondz
{"title":"Determinants of the state policy effectiveness in the field of science in Ukraine","authors":"S. Mosondz","doi":"10.17721/2227-796x.2019.1.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.1.03","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74604774","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.1.02
A. Kazantseva
{"title":"Institutional framework for public utility regulation: case study of the district heating sector in Ukraine","authors":"A. Kazantseva","doi":"10.17721/2227-796x.2019.1.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.1.02","url":null,"abstract":"","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85033183","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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