scholarly journals Modern Approaches to Understanding the Administrative Process as a Result and the Basis for the Development of Domestic Administrative Procedural Legislation

2021 ◽  
Vol 18 (3) ◽  
pp. 261-276
Author(s):  
A. I. Kaplunov
Keyword(s):  
Public Relations ◽  
Public Administration ◽  
Methodological Approach ◽  
Legal Regulation ◽  
Legal Process ◽  
Administrative Process ◽  
Civil Process ◽  
Procedural Law ◽  
Administrative Proceedings ◽  
Judicial Protection

The article provides an overview and analysis of modern approaches to understanding the administrative process as a sectoral type of legal process that have developed in domestic theory, taking into account the changes that have occurred in the procedural legislation of the Russian Federation over the past three decades after the collapse of the USSR in 1991. The process is classified as follows: complex on a jurisdictional basis; integrative; complex on the basis of managerial, judicial. Particular attention is paid to the critical analysis of the judicial approach to understanding the administrative process, the reasons for the disagreements of its supporters, firstly, with representatives of the science of civil procedural law regarding the determination of the procedural nature of administrative proceedings, and, secondly, with specialists in administrative law regarding the denial of the presence of administrative-procedural forms of activity of subjects of public administration and attempts thereby to disavow the domestic doctrine of the administrative process. The methodology for studying the nature of procedural activity is based on the analysis of the sectoral subject of legal regulation and three types of a unified method of substantive regulation (civil, administrative and criminal), the implementation channels of which are varieties of legal process in the form of civil, administrative and criminal process which are based on an adversarial or investigative type of jurisdictional process, or a law-granting type of legal process. This methodological approach made it possible: 1) to establish the sectoral procedural nature of administrative proceedings, which is determined not by the subject of a “dispute about law”, but by the method of legal regulation, represented by the civil law type of regulation of public relations, the implementation channel of which is an adversarial type of jurisdictional legal process, which is its nature as a civil process; 2) to identify the shortcomings of the model of administrative proceedings enshrined in Russian legislation, the essence of which is that an adversarial type of jurisdictional process intended for judicial protection of a person who has suffered from the actions of an official and, acting as a plaintiff in the case, is applied to persons who have violated the established prohibitions and restrictions, or committed administrative offenses and acting in the case as a defendant; 3) to substantiate the presence in the structure of the administrative process of procedural forms of activity of subjects of public administration as a channel for the implementation of the administrative-legal type of regulation of public relations and determine the list of administrative proceedings.

scholarly journals GUARANTEES OF LEGALITY OF PUBLIC ADMINISTRATION ACTIVITY: FROM CONCEPT TO PRACTICAL IMPLEMENTATION

2021 ◽  
Vol 7 (1) ◽  
pp. 134-138
Author(s):  
Vyacheslav Tylchyk ◽  
Olha Tylchyk
Keyword(s):  
Public Relations ◽  
Public Administration ◽  
Dispute Resolution ◽  
Central Place ◽  
Practical Implementation ◽  
Legal Doctrine ◽  
Procedural Law ◽  
Analysis And Synthesis ◽  
General Scientific ◽  
Administrative Proceedings

The purpose of the article is an attempt to consider guarantees of the legality of public administration through rethinking the existing system of appeal, taking into account the novelties of domestic science and practice, and the preconditions for the formation of administrative procedural law, in which the central place belongs to the category of “dispute in public relations”. The analysis of subsystems of dispute resolution through administrative proceedings and pre-trial appeals from the standpoint of efficiency and the dialectical connection is carried out. It is stated that to ensure the effectiveness of the generally accepted system of dispute resolution as a guarantee of legality, the activities of public administration entities today are the priority of absolutely all legal countries. Significant obstacles on gradual and systematic activities such as those caused by an acute exacerbation of social tension in society, external aggression, especially the development of legal doctrine and legislation that includes an ambiguous position. Today, most scholars agree that the issues of guarantees of the legality of public administration are directly related to the ability to present a model for appealing decisions, actions, inactions and determine its levels. Scientific support of the processes of formation of a legal and socially-oriented state is closely connected with the need to strengthen the methodological armament of legal science, its departure from outdated scientific dogmas, and the search for forms of manifestation and enforcement. The solution of the goal set in the publication is achieved using the cognitive potential of the system of philosophical, general scientific, and special methods. Analysis and synthesis allowed to determine the features of the concepts of “appeal” and “dispute” within the administrative appeal. Methods of review of grammar and interpretation of the law helped identify gaps and other shortcomings of legislation problems introducing mediation in the judicial administrative process as of alternative that will act as a separate stage of proceedings litigation, making suggestions for improvement. Practical implications. The formulated proposals for the development of legal support for appealing decisions, actions, the inaction of public administration, along with the functioning of administrative proceedings as a procedural form of administrative justice, acts as a guarantor of public administration in the relationship between citizen and state and is an integral part of this model.

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

2021 ◽  
pp. 145-148
Author(s):  
O. I. Mykolenko
Keyword(s):  
Legal Regulation ◽  
Administrative Law ◽  
Administrative Process ◽  
Legal Proceedings ◽  
Administrative Procedure ◽  
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.

scholarly journals Requirements of a Law-Governed State as a Due Basis for the Establishment of the Russian Administrative Law Paradigm

2021 ◽  
Vol 2 ◽  
pp. 42-54
Author(s):  
Yuriy N. Starilov ◽  
Keyword(s):  
Public Administration ◽  
Legal Regulation ◽  
Administrative Law ◽  
Legal Issues ◽  
Procedural Law ◽  
Practical Usefulness ◽  
The Subject ◽  
Administrative Proceedings ◽  
The Relationship ◽  
Administrative Justice

The article takes a brief excursion into the scientific topics of administrative and legal issues, deeply researched by LL.D, Professor Alexander Borisovich Zelentsov. These include the development of administrative and administrative procedural law, the interaction of public administration and administrative justice, and the relationship between administrative proceedings and judicial administrative law. The new views of the scientist on the trends in limiting the subject of administrative law are considered, as well as his merits in putting forward ideas, setting tasks and setting priorities for the modernization of many elements of the system of administrative legal regulation are noted. The article analyzes the theoretical validity and practical usefulness of many of A.B. Zelentsov’s opinions concerning the improvement of the system and structure of judicial administrative law.

scholarly journals NON-JUDICIAL MEDIATION IN THE LITHUANIAN ADMINISTRATIVE PROCESS: CURRENT ISSUES

2019 ◽  
pp. 115-134
Author(s):  
Eglė Bilevičiūtė ◽  
Vaidas Milius
Keyword(s):  
Public Administration ◽  
Civil Law ◽  
Legal Regulation ◽  
Administrative Law ◽  
Successful Implementation ◽  
Mediation Model ◽  
Administrative Process ◽  
The Law ◽  
Administrative Courts ◽  
Administrative Proceedings

The article is the first scientific study in the cycle of extrajudicial mediation in the administrative process of Lithuania. The purpose. The article describes the envisaged new legal regulation of non-judicial mediation in the Lithuanian administrative law process, analyzing the works of Lithuanian scholars in this field and new draft legal acts, through the categories defined in the research tasks. The aim of the article is to briefly present and discuss the institute of non-judicial mediation in Lithuanian administrative law science and practice, its current and foreseeable development in administrative justice, to define and analyze the aims of non-judicial mediation in administrative law new legal regulation, the envisaged possibilities of non-judicial mediation as an alternative to peaceful dispute resolution in the administrative law system in Lithuania. In order to achieve the aim and objectives of the research, the analysis of Lithuanian scientists’ works and basic laws and newly drafted legal acts implementing non-judicial mediation, pre-trial administrative proceedings and Lithuanian administrative legal regulation was carried out. Methods: comparative, documents’ analysis, systematic approach and other methods were used for research. Results of research. It can be reasonably stated that Lithuania, having regard to the successful implementation of mediation in civil law, has prepared appropriate amendments to new laws and other legal acts and created an efficient operational basis for the proper functioning of non-judicial mediation in pre-trial administrative proceedings. Conclusions. Summarizing this study, it can be concluded that the legal regulation of non-judicial mediation drafted by the legislators is based on analogy with the regulation of mediation in civil law. As judicial mediation in administrative proceedings is already legally regulated, as a complete analogue to civil mediation and administrative courts already apply it in practice, it is expected that the regulation of non-judicial mediation in administrative proceedings will follow a similar model. According to the proposed non-judicial mediation model, such mediation will only be possible once the dispute has been initiated and resolved by the Lithuanian Administrative Disputes Commission or its territorial offices. Such a model is acceptable given the practical work of the commission and the existing legal regulation, and the commission could operate on the basis of the mediation model of administrative courts. However, the question of the qualifications of mediators remains unresolved, as legal theorists do not agree on what the qualifications of mediators in extrajudicial administrative proceedings should be. There is disagreement as to whether a person who has completed only a supplementary course on administrative law will acquire the necessary knowledge and qualifications, as well as whether it is necessary to have a legal education and a thorough knowledge of the principles of public administration. It should be noted that the successful application of non-judicial mediation in administrative proceedings is highly influenced by the nature of the dispute. It is believed that in administrative disputes concerning material, tax relations, civil service, administration of national, European Union and foreign financial assistance, the possibility of mediation seems realistic in order to resolve the dispute and restore the balance of social peace in a manner acceptable to all parties to the dispute. The first steps have already been taken, the law stipulates that a public administration entity may not aggravate the situation of the person subject to the decision by making or modifying the decision. The drafts initiated in this way are related to the extension of the jurisdiction of the disputes dealt with by the Administrative Disputes Commission, in the hope that before the new wording of the Law on Mediation comes into force, other legal acts will be regulated to enable successful non-judicial mediation.

scholarly journals Undertaking Material and Technical Activities by Public Administration Bodies and the Right of an Individual to Be Heard

2021 ◽  
Vol 3 ◽  
pp. 189-200
Author(s):  
Jakub Szremski
Keyword(s):  
Public Administration ◽  
Administrative Law ◽  
Active Participation ◽  
Limited Extent ◽  
Administrative Process ◽  
Procedural Law ◽  
Legal Situation ◽  
The Individual ◽  
Administrative Proceedings ◽  
The Right

The right of the individual to be heard is a principle that relates to both the right to a fair trial and the right to a trial. The adjudicating entity is required, regardless of whether it is a court or a public administration body, to enable the active participation of the entity in the proceedings. The right of an individual to be heard in the context of administrative law relates mainly to the procedural situation of a party to administrative proceedings. In jurisdictional administrative proceedings, a party is guaranteed a number of procedural tools to protect its rights. First of all, the party has the opportunity to actively participate in the ongoing administrative process. Provisions of administrative procedural law allow for the submission of evidence applications, explanations, participation in the taking of evidence, as well as access to the files of a pending administrative case. The right of the individual to be heard to a limited extent should also apply to material and technical activities. An individual should be guaranteed at least minimal procedural protection in a situation where administrative bodies perform material and technical activities directly affecting their legal situation.

scholarly journals Judicial protection of several legitimate environmental interests as a way to prevent violations of environmental security

2020 ◽  
pp. 250-253
Author(s):  
Andrii Yevstihnieiev
Keyword(s):  
Public Relations ◽  
Environmental Safety ◽  
Legal Regulation ◽  
Constitutional Court ◽  
Full Implementation ◽  
Procedural Law ◽  
Legitimate Interest ◽  
Legitimate Interests ◽  
Judicial Protection ◽  
Environmental Interests

The article analyzes the status and prospects of judicial protection of environmental legitimate interests, analyzes the provisions of the relevant current procedural legislation, proposes the formulation of two environmental interests, the protection of which can make it possible to prevent violations of environmental safety. It is concluded that full implementation of judicial protection of selected environmental legitimate interests as an effective preventive mechanism in the investigated field may be exercised under the terms of the applicable version of procedural law. It is substantiated that the current law in the field of justice defines legitimate interests as the objects of court protection. Moreover the official understanding of the term "legitimate interest" was given by the Constitutional Court of Ukraine in 2004 in its decision from 01, December, 2004 № 18-рп/2004. Despite of this this, it is noted that national courts rarely protect environmental interests directly. This is due to the absence of clear criteria for identifying legitimate environmental interests which are not explicitly enshrined in legislation. Therefore, in the absence of a proper tradition of protecting legitimate environmental interests, courts seek to protect specific environmental rights which are rather detailed specifies in current legislation. Such a situation impedes the fulfillment of the main objective of the legal regulation of public relations for ensuring ecological security, which is to prevent possible violations in the form of harm to life or human health. In case of full implementation the practice of full protection of legitimate environmental interests (which is formally permitted by the applicable procedural legislation), the protection of such interests will be exercised until the right to environmental safety is violated, so such violations will be prevented.

scholarly journals Modern Approaches to the Determination of the Structure of an Administrative Procedure

2021 ◽  
Vol 1 ◽  
pp. 25-29
Author(s):  
Eduard L. Leschina ◽  
Keyword(s):  
Public Administration ◽  
Point Of View ◽  
Main Element ◽  
Present Stage ◽  
Legal Process ◽  
Administrative Process ◽  
Administrative Procedure ◽  
Definition Of ◽  
Administrative Proceedings

Тhe article considers the existing approaches to the definition of the administrative process and its structure. The conclusion is formulated that at the present stage, the General theory of the legal process, as well as the theory of administrative process, is still very difficult to consider universally recognized and finally formed. Further, the point of view that the administrative process is a broad collective concept that covers the legally significant activities of public administration and the court is substantiated. The main element of the administrative process is administrative proceedings, and the structure of the administrative process includes cases that have the characteristics of the process as a legal category. The existing disagreements among experts on the issue of inclusion in the structure of the administrative process of various categories of administrative proceedings (cases) are shown.

scholarly journals CHARACTERISTIC OF THE SUBSTANTIVE LAW

2018 ◽  
Vol 28 (6) ◽  
pp. 1977-1984
Author(s):  
Laze Jakimoski ◽  
Pakiza Tufekci
Keyword(s):  
Public Relations ◽  
Legal System ◽  
Legal Regulation ◽  
Legal Norm ◽  
Legal Entity ◽  
Procedural Law ◽  
Substantive Law ◽  
Judicial Protection ◽  
Subjective Rights ◽  
Two Sides

The division of material and procedural law has its deep traditions both in the law and in the legal science. Until recently in the continental legal system had primacy substantive law and the procedural law was perceived as something secondary, as a technology whose task is to serve the substantive law. However, in recent years, more and more widespread is the understanding that both substantive and procedural law are equally important. There is no basis for the material right to be considered as primary and priority, and the process as secondary and subordinate. Substantive law is inextricably linked with procedural law. They can be considered as two sides of the legal category - legal regulation and procedural means for administrative and judicial protection of subjective rights in regulated public relations. In the substantive law, the legal norm determines what the rights and obligations of the legal entity are. The process law determines how these rights and obligations will be realized, that is, the procedure.

PRINCIPLES OF LAW AS A BASIS FOR INTERSECTORAL COOPERATION

2021 ◽  
Vol 11 (3) ◽  
pp. 50-69
Author(s):  
M.Yu. LEBEDEV
Keyword(s):  
Family Law ◽  
Legal Regulation ◽  
Main Mechanism ◽  
Administrative Process ◽  
Legal Principles ◽  
Intersectoral Cooperation ◽  
Procedural Law ◽  
Free Treatment ◽  
Russian Law ◽  
Almost All

In the presented article the problems of interaction between the various branches of Russian law on the basis of legal principles are considered. The author, examining such concepts as “interaction” and “interrelation” states the fact that the issue of interaction of branches of law is considered by almost all researchers only from the position of listing those branches with which their branch of law interacts. At the same time, the construction of branch norms without taking into account the principles of the branch, where and the branch, from which the legal institute is implemented, leads to conflicts. Separate attention in the work is paid to the views of V.A. Riazanovskii and other scholars on the concept of “unity of process” in the context of interaction between the principles of various branches of law. The author examines the interaction of such branches of law as civil procedural law with civil, family law, arbitration and administrative process. The article draws attention to the cases of free treatment of the legislator with the category of “principles of law”, which, in the author’s opinion, leads to significant distortions of the entire branch of law, where principles not inherent in this branch are wrongly implanted. Studying institutes of law as the main mechanism of inter-branch interaction, the author comes to the conclusion about the need for legal regulation of interaction precisely through the principles of a branch of law.

scholarly journals Financial and legal basis of the activities of the united territorial communities

2021 ◽  
pp. 54-58
Author(s):  
Ye. Ananieva
Keyword(s):  
Public Relations ◽  
Public Administration ◽  
Legal Regulation ◽  
Regional Governance ◽  
Budget Process ◽  
Scientific Publications ◽  
Scientific Discussion ◽  
Modern Economy ◽  
European Standards ◽  
Constituent Elements

Problems of legal regulation of local finances are considered in the works of lawyers, economists, sociologists, public administration specialists, from different positions of their formation, distribution and use in public relations, but in modern conditions of budgetary relations, namely – formation of budgets of united territorial communities, introduction of decentralization in regional governance, administrative reform, orientation of Ukraine to European standards and values of life, the concept of legal regulation of local finances, in particular, budget relations needs to be updated. Scientific publications investigate the problems of defining local finances as a basic basis for local government, which ensures the reproduction of the budget process and the development of regions, their constituent elements and purpose. However, at present the scientific discussion on the legal significance of local finances, their constituent elements, sources of formation and use continues, because in the modern economy a significant part of financial resources is formed and redistributed through budgets, which include budgets of united territorial communities. which, finally, as a legal institution is not defined. The development of local self-government from the standpoint of the government’s proposed decentralization of power provides for the purpose of creating high-quality living conditions for citizens, providing them with the necessary public services, development of material and social base of the region. These tasks are implemented in the presence of appropriate economic development of the territory, its financial support, which depends on the sources of budget and extrabudgetary funds and areas of their use.

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