Адміністративне право і процес

науково-практичний журнал заснований Київським національним університетом імені Тараса Шевченка

#4(14)/2015

 

 Daruha V. A. Procedural principles of good administration and the problems of improving the national legislation

    The article investigates problem issues of fi xing and implementing procedural principles of good administration, in particular the principle of participation, charges for administrative decisions and forms of administrative decisions. In the article we summarize positive experience of Western European countries and its problems of usage in the Ukrainian legislation.

    The fi rst time the principles of public administration were identifi ed in the manual «Administration and You» as a result of a comprehensive study made by the Council of Europe. These principles were divided into the following groups: «1) material (basic) principles: the principle of legality, the principle of equality before the law, the principle of proportionality, the principle of objectivity and impartiality, the principle of protection the legal rights, the principle of responsibility; and 2) procedural principles: the principle of public access to (public) services, the right to be heard, the right to representation and support, the principle of a reasonable time (period), the principle of implementation the administrative decisions and the right to appeal the administrative decisions». Later the Council of Europe prepared the preliminary draft recommendation on good administration and consolidated Model code of good administration. According to the Model code of good administration the procedural principles are: requests from private persons, right of private person to be heard with the regard to individual decisions, right of private to be involved in certain non-regulatory decisions, charges for administrative decisions, form of administrative decisions, publication of administrative decision, publication of administrative decision, entry into force of administrative decisions, execution of administrative decisions, changes to individual administrative decisions.

    In the article we focus on the three procedural principles of public administration: principle of participation, charges for administrative decisions and form of administrative decisions. The principle of participation means that public authorities shall ensure participation by private persons through appropriate means in the development and implementation of administrative measures which concern them.

    The principle of charges for administrative decisions means that charges if payable by private person to public authorities in respect of administrative decisions shall be fair and reasonable. The principle of form of the administrative decisions means that administrative decisions shall be formulated in simple and clear language that is easily understood by private person to whom they are directed.

    Author has concluded that the following problems must be resolved: harmonization of legislation in the sphere of charge for administrative decisions, approval of the Administrative procedural code of Ukraine, create better opportunities for participation private persons in the development and implementation of administrative measures that affect them.

 

    The article investigates administrative procedures of rendering administrative services in the European Union and Ukraine. Special attention is devoted to compare general grounds of rendering administrative services and to formulate proposals for improvement of domestic legal regulation taking into account positive European experience.

 

Rohoza Y. E. Development of the principles of openness and transparency in European legal doctrine

    The article deals with analysis of the principles of openness and transparency in public administration. The evolution of these principles in European doctrinal tradition is analyzed. Development of the principles of openness and transparency in the constitutional and legislative context are reviewed.

    The wide and narrow concepts of openness are examined. Different defi nitions of the categories «openness» and «transparency» are proposed. The scientifi c approaches by foreign scientists are divided into two groups considering the substantive and procedural aspects of openness and transparency.

    The article also provides different forms of normative regulation regarding these principles. The differentiation between the requirements of openness and transparency are formed.

    The suggestions as to the forms and methods concerning administrative legal regulation of the defi ned principles in the national doctrine are made. It is justifi ed that adoption  of the Ukrainian Code of Good Administration and the Administrative Procedure Code would improve the implementation of the principles of openness and transparency in public administration in both Ukrainian legislation system and national legal doctrine.

 

Bevz O. V. Functional and legal provision of the lands of historical and cultural signifi cance governance in Ukraine

    The article is devoted to the problems of functional and legal provision of the lands of historical and cultural signifi cance governance in Ukraine. Author draws attention to the administration functions that particularly concern the lands of historical and cultural signifi cance — namely, the land planning, the land cadaster, the land management and the state land control. In the article the legislation that regulates the planning of land use and protection, the land cadaster, the land management and the implementation of the state land control is analyzed. The problems that arise from the implementation of these land administration functions and the ways of its solving are also highlighted.

    Author focuses on the fact that protection of historical and architectural heritage is intimately connected with the land planning and city planning arrangements laid down in the general city map, detailed plans and schemes of its center. There are mandatory legislation requirements regarding the need to develop a historical and architectural key plan for the cities and towns included in the Historical Inhabited Places List, however, they are elaborated and approved not for all cities and towns considered historical.

    The land management is claimed to be extremely important for the establishing the legal regime of lands of historical and cultural signifi cance, the implementation of which includes in particular the establishment of the historical and cultural lands boundaries as a type of land management documentation. The results of the research show that the lack of properly issued rights on land causes the legal regime of lands of historical and cultural signifi cance violation.

    The state control over the lands of historical and cultural signifi cance is an important function that causes a lot of problems. Author pays attention to certain drawbacks of Ukrainian legislation regarding the defi nition of executive bodies authorized to control land use and protection of historical and cultural signifi cance. It is suggested to amend the Law of Ukraine «On Protection of Cultural Heritage» with the powers of Ministry of Culture of Ukraine on participation in exercising state control over the use and protection of the land of historical and cultural signifi cance.

    Author came to the conclusion that the problems of the functional and legal provision of the lands of historical and cultural signifi cance governance in Ukraine lead to the violations of the legal regime of lands of historical and cultural signifi cance and, consequently, entail a threat to objects of cultural heritage.

 

Klynchuk V. I. Licensing of business activity in the public health 

    The article is devoted to the meaning, functions and peculiarities of licensing of business activity in the public health. There is a short characteristic of problems arising during licensing of certain types of business activity in the public health. There is also analysis of current legislation, drafts and trends of changing of licensing procedure for discovered activity.

 

Chornous A. G. Current problems in distinguishing terms «medical care» and «medical service»

    The article is devoted to the research of the legal nature of such legal categories as «medical care» and «medical service». The correlation between the existing legal regulation and scientifi c papers was studied in order to distinguish the particular categories, own defi nitions were proposed.

 

Baluk G., Sushyk O. The Notion of Environmental Riskin the Operation of the Armed Forcesof Ukraine: Legal Aspects

    The article high lights the legal nature of environmental risk in the operation of the Armed Forces of Ukraine. The author shave come to the conclusion that the environmental risk in the operation of the Armed Forces of Ukraine is one of the central categories of environmental safety law, and that the legal for mofi ts regulation is ensured in the current national environmental safety legislation. The above-mentioned category is also enshrined in such international legal documents as: the Council Directive 96/82/EC of 9 December 1996 On the control of major-accident hazards involving dangerous substances, the Convention on Transboundary Effects of Industrial Accidents (Helsinki, 1992), the Convention on the Prohibition of the Development, Production and Stock piling of Bacteriological (Biological) and Toxin Weaponsand on their Destruction (1975), the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modifi cation Techniques (Geneva,1977), the Convention on the Prohibition of the Development, Production, Stock piling and Use of Chemical Weapons and on their Destruction (Paris, 1993).

    In order to reveal the peculiarities of environmental risks the authors performed it’s classifi cation based on various characteristics.

    The article defi nes the notion of environmental risk in the operation of the Armed Forces of Ukraine as a fact established by environmental legislation which caused the creation, change, and termination of legal relations in the operation of the Armed Forces of Ukraine regarding environmental hazardous objects (including weapons), which determine the formation and implementation of special status of individuals, legal persons and state in the military sphere in order to identify, prevent and eliminate military and technogenic threats to the environment, human health and life, and that results in a special regime of legal liability for failure to perform or improper performance of obligations on ensurance of environmental safety in the operation of the Armed Forces of Ukraine, including random (possible) danger.

 

Horodetska I. A. Regarding the issues of administrative-legal regulation in the area of protection and use of animal world (in the context of the implementation of the Strategy of state ecological policy of Ukraine)

    Author discussed actual issues of extensive usage of natural resources, including wildlife at modern stage of development in Ukraine. Given the tendency of transition of the international community to the sustainable development model and the importance of functions, namely, environmental, social, economic, performed fauna in the life of man and of the society should be relevant issue of effective legal regulation of social relations in the field of protection, usage and reproduction of animal world, including administrative and legal aspects.

    The aim of the article is to clarify the issues of administrative and legal regulation of the usage and reproduction of the animal world in the context of the Strategy of state ecological policy of Ukraine for the period until 2020. The performed analysis of the «Assessments of the Strategy of state ecological policy of Ukraine for the period until 2020 and the National Action Plan on Environment 2011–2015» showed that a number of strategic objectives relating to the protection, usage and reproduction of animal world, had been performed on unsatisfactory level or not implemented at all.

    Figuring the ratio of the actual result of the implementation of the strategic objectives and strategic goals, author described the pre-crisis level of effi ciency of admini strative legal regulation of social relations in the fi eld of protection, usage and reproduction of animal world.

    The main problems of administrative-legal regulation of protection, usage and reproduction of animal world in the context of the implementation of the Strategy of state ecological policy of Ukraine for the period until 2020 include:

— imperfect regulatory-legal framework of administrative-legal regulation in the sphere of protection, usage and reproduction of animal world; 

— lack of effective activity of entities in public administration and administrative-legal regulation in the fi eld of protection, usage and reproduction of animal world.

Now there is a process for the formation of the National action plan on environmental protection for 2016–2020. The fi rst step is to solve the problems that led to unsatisfactory level of implementation of strategic tasks. 

 

Kryzhanovska V. A. Administrative responsibility of legal entities in the fi eld of road safety: current problems

    In the article the actual problems of administrative responsibility of legal entities in the field of road safety in the context of national legislation to EU requirements in the light of Ukraine Association Agreement with the EU have been reviewed. Author analyzed the provisions of the Code of Ukraine on Administrative Offences, the experience of the European Court of Human Rights, the legal framework of Ukraine National Police in the area of road safety.

 

Tubelets О. S., Paryshkura V. V. Administrative liability of persons who have the status of a judge as a factor of formation of highly professional judiciary

    The article provides valuable information on theoretical and practical aspects of administrative liability of persons who have the status of a judge. The analysis of correlation of judges’ administrative and disciplinary liability has been performed in this article. The article highlights the problem of legislative regulation of holding responsible persons who have the status of a judge, including to administrative liability. The optimal ways of solving the aforementioned practical issues in the fi eld have been proposed.

 

Popov R. V. Defendant in the administrative proceeding: concept, powers and peculiarities

    The essence of the subject of power authorities in the administrative proceeding has been investigated and classifi ed. We have come to the conclusion about the engagement in the administrative proceeding of the representatives of self-governing professions and other special bearers of public competence. In particular, it has been proved that the defendants in the administrative cases regarding the resolutions, actions, inactions concerning the access to the public information were the state institutions, public entities, legal persons of public and private law whose objective reality of execution of modern administrative legal proceeding, participation in the administrative process of the subjects different according to the form and content, witnesses the non-compliance of the concepts of «defendant», «subject of power» specifi ed by Code of Administrative legal proceeding of Ukraine with the practice of administrative process.

    The specifi ed characteristics of the potential defendants in the administrative process, practice of functioning of the bearers of public powers, in our opinion, forms grounding to talk once again about the urgent character of replacement of the category «subject of power authorities», which is used in the Code of Administrative legal proceeding of Ukraine and other national legislation for the «subject of public administration». Having evaluated the content of these powers, it has been defi ned that they have different functional destination and depending on it, rights and obligations of the defendant can be unified in the following main groups: 1) general rights and obligations which possess all persons without any exclusions, which participate in the case (art. 49, 73, 134 of the CALP of Ukraine); 2) rights and obligations of the defendant which guarantee for him the protection from the demands specifi ed in the statement of claim (part 2, 3 art. 51 of the CALP of Ukraine). Having analyzed the powers of the defendant in the administrative process, taking into consideration the wide range of the cases of achievement of legal personality of the defendant by the non-subjects of power authorities, we are convinced that in order to create equal possibilities for the defense of the subjective rights, liberties and interests, it is reasonable to stipulate in the Code of Administrative legal proce eding of Ukraine the procedural rights of the defendant regarding application by him of the other means of defense of the defendant rights (in particular, to present the administrative counter-claim) and stipulate the obligations for the plaintiff — subject of power authorities of presenting the proves and personal participation in the court session.

 

Berzin P. S. Special part of the Criminal Treasury Code of Republic of Poland

    Maintenance of Special part of the fi rst head of the Criminal Treasury Code of Republic of Poland is analyzed in the article. The due way of translation of the name of this Code and it’s coherence with the Criminal Code of Republic of Poland are determined. Author determines the structure of Special part of the Criminal Treasury Code, that consists of four chapters: 1) treasury crimes and treasury misconducts against tax obligations and calculations grants; 2) treasury crimes and treasury misconducts against custom duties and rules of turn of commodities and services abroad; 3) treasury crimes and treasury misconducts against currency; 4) treasury crimes and treasury misconducts against organization of gaming.

    In the article is determined maintenance of structural «components » of this Code, concepts «act», «types of the treasury crime», «types of the treasury misconduct», «forbidden act», «subject, instituted criminal proceedings against for a treasury crime», «publicly harmful act», «behavior», «guilty responsibility», «legal entity», «organizational unit, that does not have status of legal entity and legal capacity», «legal consequence commission of treasury crime and treasury misconduct » and concept principle code, rules awarding punishment, criminal sanction and safety sanction for the feasance treasury crime and treasury misconduct, exception from punishment for a guilty person.

    The concepts of responsibility and diminished responsibility in the Criminal Treasury Сode are investigated. In the article the questions of application of measures of criminal-law infl uence for the feasance of treasury crimes and treasury misconducts are examined. Author analyzed specifi cs of the principle applied to the structure of the Criminal Treasury Code. 

 

Kovalenko T. O. Legal regulation of genetic safety: international and national aspects

    Genetic safety is a special state of security of human and environment, in which: a) any unnatural impact on the human genome is absent; b) any unnatural impact on genome of biosphere objects is absent; c) uncontrolled impacts on genome of agricultural plants, animals and industrial microorganisms, which leads to their negative and /or undesirable properties are absent.

    The object of genetic safety is genome — the entire set of hereditary genetic information of an organism. These objects are human genome and genome of any biosphere objects, including agricultural plants, animals and industrial microorganisms.

    Legal regulation of genetic safety is ensured primarily at the international level by: a) prohibition of interference in the human genome, aimed at its modifi cation, except when such interference with preventive, therapeutic or diagnostic purposes and only on condition that such intervention is not aimed at changing genome of heirs of the person; b) prohibition of any form of discrimination against a person on grounds of genetic heritage; c) guaranteeing the human right to privacy of genetic data; d) securing the right to fair compensation of any damage caused as a result of the direct and determining infl uence on his genome; f) prohibition of human cloning for the purpose of reproduction of the human person, and the cultivation of human embryos for research purposes; e) guaranteeing the preservation of biological diversity, particularly in the process of obtaining, handling, transport, use, transfer of living modifi ed organisms; g) implementation of the precautionary principle in the study, diagnosis and treatment connected with the genome of any person and the principle of threats avoidance when implementing projects that could signifi cantly adversely affect the biological and landscape diversity.

    Ukrainian legislation has specifi c provisions, aimed at guaranteeing genetic safety by: a) prohibition of reproductive human cloning; b) preventing unnatural impact on genome of biosphere objects as a result of genetically modifi ed organisms discharge into environment; c) regulation of genetic engineering activities aimed at modifying genome of agricultural plants, animals and industrial microorganisms. However, provisions of special laws of Ukraine «On the prohibition of human reproductive cloning» and «On state biosafety system for creating, testing, transportation and use of genetically modified organisms» are mainly declarative. The above mentioned determines the necessity of signifi cant improvement of Ukrainian legislation in the fi eld of genetic safety with regard to international legal requirements.

 

Otradnova О. О. State as a participant of civil tort relations

    The article is devoted to the analysis of states participation in civil relations of noncontractual damage compensation (torts). The author explores problematic questions of states characteristic as a victim in torts and a possibility to use articles of Chapter 82 of the Civil code of Ukraine to such relations. Also the peculiarities of damage, caused by state bodies and state servants, compensation are analyzed in the article. The author pays attention to the conditions of special Civil codes norms use for such relations. In the article there is also a conclusion about exact state bodies which should be defendants in such cases.

 

Patsuriia N. B. Codifi cation of the economic legislation and development of insurance relations: correlation, goal-orientation & infl uence on the economy

    Codifi cation is a specifi c feature of continental European law-making process. According to these approaches codifi cation is a necessary condition of structuring the law on the basis of the branches, it could ensure systematic improvement of the legislation, providing the possibility of synthesis of the mentioned approach as well as a combination of commitment to their own experience, taking into account the achievements of world civilization, especially in the regulation of economic relations. The codifi cation provides the opportunity to create this common legislative framework, fundamental laws clarifying their provisions in compliance with development of the society, instead of infi nite publication of many new laws. Many laws alone cannot provide a consistent system, transparent regulation. Author underlined the drawbacks & examples of negative quality of legislation, undermining its effectiveness, the degree of implementation. 

    In this respect, prospective studies could become a subject of research in economic analysis of law (Law and economics) and effi ciency of legal regulation of several spheres of industry and effi ciency of it’s legal regulation. The main «ideologist» of Modern Law and economics R. A. Posner introduced into scientifi c doctrine the principle of effi ciency, the essence of which is that economic analysis of the law allows such decisions that encourage lawyers to simulate a «perfect market». The above formula is well-known to the law community. Author reviewed the category system-legal economic order, normative principles enshrined in the ch. 1, Art. 5 of the Commercial Code of Ukraine. Today the specified combination of two disciplines — human and economic — successfully implemented within the economic and legal doctrine, including the study of insurance relations.

    In this regard, attention should be paid to the initiative of the Ministry of Justice of Ukraine on elimination of the Commercial Code of Ukraine, which in our opinion, could lead to negative effects. Commercial Code of Ukraine is an act of systematization, based on the branched economic legislation. In addition codifi cation of economic legislation provides the main aim of the economy — optimizes the private and public interests, that provides legal economic order in the economy. The said without exaggeration may be applied to insurance as a system of insurance relations category that requires proper legal regulation and regulation by means of economic and legal means, including the rules of economic legislation.

    Improper application of economic and legal scientifi c achievements in the context of implementation of the economic analysis of law leads to practical issues in insurance activities. A striking example is the normalization of the legal status of mutual insurance under the legislation of Ukraine and uncertainties as to insurance object.

    The Ukrainian legislation at the modern stage is represented by different branches, has diffi cult structure, that crossed horizontal and vertical relationships, legislative arrays are of different levels, and there have been persistent tendency to unifi cation, which requires further research, and securing insurance within legal norms of the Commercial Code of Ukraine.

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