The Standards of Proof as the Basis for Differences in the Regulation of Similar Institutions of Criminal, Civil, Arbitration and Administrative Proceedings

Judicial Practice ◽

Analysis And Synthesis ◽

Standards Of Proof ◽

Import And Export ◽

Definition Of ◽

Sphere Of Influence ◽

Administrative Proceedings ◽

Law Of Evidence

Introduction: the division of all procedural institutions into universal, similar and unique ones requires the identification of the factors that determine the branch uniqueness. The purpose of the work is to determine the validity of inter-branch differences in the regulation of the institutions of criminal, civil, arbitration and administrative processes, depending on their own standards of proof. The determinant method of the research was the method of comparative law. A comparison was made of typical situations of proving related offenses under consideration of the criminal and civil or arbitration or administrative procedure. The research also uses the methods of historicism, system-structural analysis and synthesis. Results: the correlation of “standards of proving” and “standards of proof” is determined on the basis of the scientific literature and judicial practice. Through the example of the criminal and civil (arbitration, administrative) cases with similar subjects of proving (the cases of tax crimes and offenses, transport crimes and offenses, fraud and non-repayment of loans, smuggling and non-compliance with the ban on the import and export of goods), different industry requirements are established for the level of verification of the conclusions about the presence or absence of any facts. The cases of the legislative definition of standards of proof for certain legal situations are revealed. Conclusions: serious differences in the levels of proof required by law and judicial practice in different types of legal proceedings dictate the uniqueness of the regulation of a number of procedural institutions in their branch implementation. The sphere of influence of the standards of proof on the branch statutory regulation is not limited by law of evidence.

INSTITUTE OF ADMINISTRATIVE CLAIM: CURRENT STATE AND DEVELOPMENT PROSPECTS

Constitutional State ◽

10.18524/2411-2054.2021.43.240950 ◽

2021 ◽

pp. 28-34

Author(s):

O. H. Kostromina ◽

H. O. Babenko

Keyword(s):

Public Relations ◽

System Analysis ◽

Administrative Claims ◽

Legal Method ◽

Analysis And Synthesis ◽

Definition Of ◽

Administrative Proceedings ◽

The Right

An administrative claim is one of the main institutions of administrative justice. To understand the institution of an administrative claim as a complex legal structure covering the right of a person to apply to an administrative court with a request, it is necessary to clarify the concept, legal nature, types of administrative claim. The purpose of the article is the theoretical and legal characteristics of the categories of the institution of administrative proceedings, the definition of the concept, the definition of the essence and structure of an administrative claim, the criterion for its classification, making proposals aimed at improving the Code of Administrative Procedure of Ukraine. The methodological basis of the research is a combination of general scientific and special methods of cognition. The research is based on the dialectical method of scientific cognition of the phenomena of reality in their development and interrelation. The achievement of certain research objectives led to the use of such methods as: the historical and legal method – when analyzing claims in administrative proceedings, the system analysis method made it possible to consider an administrative claim as a single system with its own structure and dynamics of development. The methods of analysis and synthesis, structural-functional, synergetic and other methods were also used, which made it possible to comprehensively explore the problematic aspects of understanding the institution of administrative claims. An administrative claim is understood as a material claim of the plaintiff for the protection of rights, freedoms and interests in public law relations, addressed to an administrative court. Various approaches to the classification of administrative requirements depending on the content are described. The internal structure of the administrative claim is described, in connection with which the provisions of the legislation are analyzed. The substantive and procedural aspects of the claim are highlighted. Analyzes the legal requirements for an administrative claim. It is noted that within the framework of administrative legislation, in particular in the Code of Administrative Procedure of Ukraine, the types of administrative requirements are not directly defined. It has been established that at the scientific and theoretical level, the main criteria for the classification of administrative claims are: the subject of an administrative claim, a method of procedural protection, a method of achieving procedural goals, the nature of material legal relations. The main tasks that an administrative claim solves as a procedural means of protecting rights, freedoms and interests in the field of public relations are determined.

The grounds and conditions of securing a claim in administrative proceedings

Law. Human. Environment ◽

10.31548/law2021.02.012 ◽

2021 ◽

Vol 12 (2) ◽

Author(s):

Yara Olena ◽

◽

Kravchuk O.V. ◽

Keyword(s):

Law Enforcement ◽

Subject Matter ◽

Direct Connection ◽

Individual Rights ◽

Judicial Practice ◽

Legal Provisions ◽

Legal Science ◽

The Subject ◽

The article examines the grounds and conditions of securing a claim in administrative proceedings. By analyzing the legal provisions, law enforcement (judicial) practice in connection with the acquisitions of legal science, the grounds and conditions of securing a claim in administrative proceedings are highlighted. Attention is focused on problematic issues that arise when courts check the grounds for securing a claim and compliance with the terms of securing a claim. In particular, attention is drawn to the fact that securing an administrative claim on the grounds of obvious signs of illegality of the decision, action or inaction of the subject of power is virtually inapplicable due to reservations about the inadmissibility of resolving the dispute on the merits. It is concluded that an administrative lawsuit can be secured if there is at least one of the grounds specified in part one of Article 150 of the Code of Administrative Procedure of Ukraine and compliance with the conditions of proportionality, adequacy of measures to ensure administrative lawsuit, direct connection with the subject matter and legal the defendant's conduct in the dispute. Emphasis is placed on the fact that the freedom of discretion (discretion) of the court in the application of measures to ensure an administrative claim is unconditional, but not unlimited and controlled by the requirement to properly justify the relevant procedural action. Keywords: administrative court, administrative claim, administrative proceedings, securing the claim, principles of administrative proceedings, protection of individual rights and freedoms, grounds for securing the claim, conditions for securing the claim

Features of Financial and Legal Incentives of Investment Activities in the Regions

Journal of Advanced Research in Law and Economics ◽

10.14505//jarle.v9.1(31).26 ◽

2018 ◽

Vol 9 (1) ◽

pp. 210

Author(s):

Nikita K. POPADYUK ◽

Olga V. PANINA ◽

Sergey G. EREMIN ◽

Andrey I. GALKIN ◽

Alexander A. SAVELYEV

Keyword(s):

Financial Incentives ◽

Russian Regions ◽

Investment Activity ◽

Scientific Methods ◽

Judicial Practice ◽

Analysis And Synthesis ◽

Logical Method ◽

General Scientific ◽

The Subject ◽

Definition Of

Research of features of financial and legal incentives of investment activities in the regions. Methodological basis of the study raised issues were the following: general scientific methods of cognition generalization, analogy, analysis and synthesis, elaboration, comparison, logical method, etc. Conducted interdisciplinary analysis of literature and sources on stimulating investment activities, with particular emphasis given to the Institute financial and legal incentives. Formed the author's definition of the term ʼfinancial and legal stimulus of investment activity of regionsʼ. Studied types of financial and legal incentives of investment activities of the regions. Analyzed regional legislation and judicial practice on the subject of study places financial incentives in the legal field of regional legislation. Identified conflicts in the system of financial and legal incentives of investment activities of the regions. A proposal to optimize the preliminary control of the Prosecutor's offices of the legality of the investment legislation, in particular, the structure of which has different financial and legal incentives of investment activities in Russian regions.

On the issue of understanding administrative proceedings

Current Issues of the State and Law ◽

10.20310/2587-9340-2020-4-13-135-140 ◽

2020 ◽

pp. 135-140

Author(s):

Valentin Nazarov ◽

Tat’yana Akimova

Keyword(s):

Russian Federation ◽

Practical Implementation ◽

Public Interests ◽

Legal Norms ◽

Legal Proceedings ◽

The Subject ◽

The Russian Federation ◽

Definition Of ◽

Judicial Procedure ◽

We point out some trends observed in the development of Russian justice. We note the features of the historical development of the state that have influenced the legislative consolidation of administrative legal proceedings. Exploring the main approaches to the definition of administrative legal proceedings, we conditionally combine them into three large groups and characterize each of them. The various positions of legal scholars on the legal nature of administrative legal proceedings are illustrated. It is indicated that with the adoption of the Code of Administrative Judicial Procedure, there was a separation of administrative proceedings from other types, the result of which is the creation of administrative and legal means to ensure and protect public interests as well as the practical implementation of constitutional legal norms on administrative legal proceedings. We specify that the independent nature of administrative legal proceedings is determined by the specifics of this process. The features characteristic for this type of legal proceedings are analyzed. We express an opinion on the need for a more clear and unambiguous formulation of the subject of regulation of the Code of Administrative Judicial Procedure of the Russian Federation and its normative consolidation. Despite the fact that more than four years have passed since the adoption of the Code, the controversy surrounding the subject of regulation of the Code of Administrative Judicial Procedure of the Russian Federation continues to this day. In addition, we reveal the most important results of the adoption of the Code of Administrative Judicial Procedure.

MAIN CHARACTERISTICS OF ADMINISTRATIVE ACTS FROM THE PERSPECTIVE OF ADMINISTRATIVE PROCEDURE LAW OF LATVIA AND JUDICIAL PRACTICE

Administrative law and process ◽

10.17721/2227-796x.2019.2.09 ◽

2019 ◽

pp. 133-147

Author(s):

Kristine Kore-Perkone

Keyword(s):

Kyrgyz Republic ◽

Main Concept ◽

Judicial Practice ◽

Legal Literature ◽

Administrative Procedures ◽

Administrative Act ◽

The Law ◽

Classic Form ◽

Definition Of

An administrative act is the main concept and instrument of administrative procedure. Despite the availability of other forms of the performance of public administration (for example, practical step, public law agreement, legislative action etc.), an administrative act is considered as an activity in classic form. Consequently, as a rule, the concept of an administrative act is analysed more frequently in the Latvian administrative judicial practice and legal literature. The article provides an overview of the main characteristics of administrative acts from the perspective of Administrative Procedure Law in Latvia. In the article, the author elaborates on several main characteristics of administrative acts from the perspective of judicial practice and Latvian doctrine. The author also undertakes а comparative analysis between the Latvian Administrative Procedure Law and the newly adopted Law on Administrative Activities and Administrative Procedures of the Kyrgyz Republic. From the above, it follows that the positive part of the definition of an administrative act in the Administrative Procedure Law of Latvia is the same as in the Law of the Kyrgyz Republic. Thus, both laws provide for similar features that a decision must have to be recognized as an administrative act. It is noted that the Administrative Procedure Law of Latvia includes an exception to the general principle that an interim decision is not an administrative act, apart from cases when the decision itself substantially affects the rights or legal interests of a person or substantially limits them. The definition of an administrative act, which is stipulated by the Law of the Kyrgyz Republic “On Administrative Activity and Administrative Procedures”, does not indicate that an administrative act is not an interim or procedural decision. The above does not mean that even now in Kyrgyzstan in order to recognize the decision as an administrative act, there must be no features of a final character. The jurisdiction of administrative offenses cases was changed from the jurisdiction of administrative courts to the courts of criminal jurisdiction. Consequently, the competence of administrative cases doesn’t involve considering administrative offences cases.

REVIEW OF THE TEXTBOOK M. I. SMOKOVYCH, V. M. BEVZENKO «ADMINISTRATIVE PROCESS OF UKRAINE: THEORY, PRACTICE»

Constitutional State ◽

10.18524/2411-2054.2021.41.225620 ◽

2021 ◽

pp. 145-148

Author(s):

O. I. Mykolenko

Keyword(s):

Legal Regulation ◽

Administrative Law ◽

Administrative Process ◽

Legal Proceedings ◽

Procedural Law ◽

Administrative Proceedings ◽

Functional Purpose

Administrative process is a legal phenomenon that causes discussion and controversy among representatives of administrative law and the process both in terms of determining its content, form and functional purpose in the system of legal proceedings, and in terms of subjects, principles and substantive jurisdiction. Thus, the ideas of Ukrainian scholars about the administrative process are not always related exclusively to the understanding and legal regulation of administrative proceedings, and therefore textbooks and manuals on the disciplines "Administrative Procedure" and "Administrative Procedural Law" differ significantly in content.

Scientific and Informational Bulletin of Ivano-Frankivsk University of Law Named after King Danylo Halytskyi - Scientific and informational bulletin of Ivano-Frankivsk University of Law named after King Danylo Halytskyi ◽

Prospects of legal regulation of simplified proceedings in administrative cases

10.33098/2078-6670.2021.11.23.97-104 ◽

2021 ◽

pp. 97-104

Author(s):

Iryna Khomyshyn

Keyword(s):

Complex Analysis ◽

Legal Regulation ◽

Educational Process ◽

Practical Significance ◽

Historical Aspect ◽

Effective Implementation ◽

Judicial Practice ◽

Legislative Activity ◽

Purpose. The purpose of the study is to analyze the prospects for the legal regulation of simplified proceedings in administrative cases by the Code of Administrative Procedure of Ukraine. Method. The research is based on the complex analysis and generalization of the available practical, scientific and theoretical material and the formation of the corresponding conclusions and offers. The following methods of scientific cognition were used in the research: the dialectical, system-structural, terminological, system-functional, historical, normative-dogmatic, way of generalization. Results. The study examines the historical aspect of the development of legislation on simplified proceedings, including administrative cases. It is established that a particular category of cases can be considered in the framework of simplified proceedings without an oral hearing by examining the evidence provided in writing. Simplified proceedings are differentiated proceedings containing several exceptions to the administrative, procedural form. Simplified proceedings in administrative cases are distinguished not depending on the special categories of administrative matters but particular circumstances and applying a simpler trial procedure in the cases specified by law. The current legislation on applying the rules on the simplified system of justice requires improvement to ensure the effective implementation of procedural guarantees of participants, compliance with the principles of legality and fairness in the consideration and resolution of administrative cases. Scientific novelty. It is established that the formation of simplified proceedings aims to ensure the effective implementation of procedural guarantees of the participants, compliance with the principles of legality and fairness in the consideration and resolution of administrative cases. The practical significance lies in the possibility of using materials in legislative activity, in judicial practice, in the educational process in the study of administrative proceedings.

Real Acts as a Public Administration Tool

University Scientific Notes ◽

10.37491/unz.79.8 ◽

2021 ◽

pp. 83-90

Author(s):

Oleh MUZA

Keyword(s):

Public Administration ◽

Scientific Research ◽

Legal Regulation ◽

Administrative Law ◽

Significant Information ◽

The Real ◽

Legal Proceedings ◽

Legal Nature ◽

Definition Of

In the article the phenomenon of real acts as a public administration tool is researched. The consolidation of public administration tool «real acts» was first embodied in the German doctrine of administrative law. The scientific research of real acts in the Ukrainian administrative law hasn’t yet received the necessary results. It’s formulated the definition of real acts as informal decisions or actions of public administration bodies which are adopted or committed outside the legal regulation of administrative activities and aimed at communication with private persons. It’s determined the legal features of real acts: 1) they are informal decisions or actions of public administration bodies; 2) the purpose of their application is to inform private persons about socially significant information or to reach a consensus between public administration bodies and private persons during the administrative procedure; 3) their content doesn’t reflect the final result of the power influence of public administration bodies; 4) they are additional illegal means of communication of public administration bodies with private persons; 5) may be appealed in court in case of violation of the rights, freedoms or interests of private persons. It’s noted that the real acts for the legal nature and form of adoption (committed) aren’t administrative acts. It’s concluded that real acts complement the system of public administration tools and reflect the part of administrative activity of public administration bodies, which doesn’t have a legal formalization. The use of real acts by public administration bodies allows to increase the efficiency of relations with private persons during the occurrence of administrative procedure relations. The real acts aren’t legal facts that can lead to the dynamics of administrative legal relations, but their application may be subject of court legal proceedings to protect the rights, freedoms and interests of private persons with public administration bodies. Administrative procedural legislation of Ukraine should contain provisions on the possibility of applying real acts in order to expand the possibilities of public influence of public administration bodies on various spheres of public administration.

The dispute about law in urgent administrative cases at the appeal of the bodies of revenue and fees

Legal horizons ◽

10.21272/legalhorizons.2019.i18.p85 ◽

2019 ◽

pp. 85-90

Author(s):

O.V Skochylias-Pavliv ◽

N.V. Lesko

Keyword(s):

Supreme Court ◽

Court Decisions ◽

Legal Definition ◽

Judicial Practice ◽

The Supreme Court ◽

The Subject ◽

The Law ◽

Definition Of ◽

Judicial Procedure ◽

The article deals with current issues related to the procedure of consideration and resolution of urgent administrative cases at the appeal of the bodies of revenue and fees. The peculiarities of the specified category of cases which are manifested in the urgency; subject composition; notification of the participants of the case on the date, time and place of the case; filing of the claim; calculation of procedural terms; announcement and service of court decisions; appeal and cassation appeal; the court fee are analyzed. It is noted that the statements of the case are a statement of claim, reaction a statement of claim, a response to a reaction, a protest, a third party’s explanation of the statement claim, or reaction a statement of claim. The form of the appeal of tax authorities to the administrative court is a claim. Obviously, that is why in these categories of cases there are often misunderstandings regarding the payment of court fees as evidenced by a large number of decisions on leaving without motion the claim of bodies of revenue and fees on the ground of failure to submit to the court a document on payment of court fees. Central to the article is the consideration of the issue of understanding of the dispute about law as one of the grounds for refusing to open proceedings at the appeal of the bodies of revenue and fees. The only form of administrative proceedings is the consideration of the case on the statement of claim. As is well known, a lawsuit involves conflict between the parties. The mutual rights and obligations of the parties to prove their claims and objections constitute the substance of the dispute. However, the peculiarities of disputes at the request of the bodies of revenue and fees due to the fact that they don’t have a dispute about the law. It is noted that there is no legal definition of the term «dispute about the law», which significantly complicates the consideration and resolution of this category of cases. The interpretation of this concept exists only in judicial practice, in particular in resolutions of the Supreme Court but they are also contradictory. That’s why we consider it necessary to supplement article 283 Code of Administrative Proceedings of Ukraine a note defining the concept of «dispute about the law», which should be understood as a claim of the taxpayer to the tax authority regardless of the subject of the claim which may be submitted to administrative or judicial procedure. Keywords: a dispute about law, administrative proceedings, administrative case, revenue, and fees, claim.

Principles of legal proceedings in the Code of administrative proceedings and in the Civil procedure code

Law Enforcement Review ◽

10.24147/2542-1514.2020.4(3).139-147 ◽

2020 ◽

Vol 4 (3) ◽

pp. 139-147

Author(s):

Lydia A. Terekhova

Keyword(s):

Characteristic Feature ◽

Civil Procedure ◽

Independent System ◽

Legal Proceedings ◽

Procedure Code ◽

Civil Proceedings ◽

Rules Of Evidence ◽

The Subject ◽

The subject. The system of principles of legal proceedings is one of the indicators of the independence of the type of legal proceedings. The article analyzes the general and distinctive features of the principles enshrined in the Russian Civil Procedure Сode and the Code of Administrative Procedure. The purpose of the article is confirmation or confutation of the hypothesis that there is no independent system of principles of administrative proceedings that differs from the system of principles of civil proceedings. The methodology of the study includes the formal legal method, analysis, synthesis. The main results. All of the principles enshrined in the Code of Administrative Procedure are also enshrined in the Civil Procedure Code except some minor characteristics. So, the active role of the court, involving a number of exceptions to the usual rules of evidence, was also characteristic of the regulation of the consideration of cases arising from public legal relations in the Code of Civil Procedure. The court’s active actions to determine the subject of evidence, to recover evidence are general rules of evidence for all types of proceedings. These rules existed both before the adoption of the Code of Administrative Procedure and after it. But the specifics of the execution of judicial acts adopted in cases of administrative proceedings require special attention. A characteristic feature in the consideration and resolution of most administrative cases is the immediate execution of decisions enshrined directly in the Code of Administrative Procedure. Such a rule can be considered as a priority of immediate execution, which is a characteristic feature of administrative proceedings. The author doubts about the need for normative consolidation of the principles, as well as the need for a special list of principles of administrative legal proceedings in separate article of the procedural code. Conclusons. The absence of an independent system of administrative procedural principles confirms the thesis that administrative proceedings cannot be considered an independent branch of law separated from civil proceedings law. However, the priority of immediate execution of a court decision is a characteristic feature (perhaps even a principle) of administrative proceedings.