Адміністративне правo і процес
ISSN: 2227-796X (Print), ISSN: 2617-8354 (Online)

Науково-практичний журнал‚ заснований Київським національним університетом імені Тараса Шевченка

 

 

Zurkan M. І. Proceeding in administrative cases regarding public service

We have analyzed the legal relations, arising from public service disputes. The characteristics was given to the types of public service, we have specifi ed the differences between them as well. We have identifi ed the features of public service: professional activities of the citizens of Ukraine; realized on the basis of the Constitution, law and other normative and legal acts; according to its content, it involves realization of the tasks and functions of the state, bodies of state power or local administration institutions, payment is done using the state funds or the funds of local budgets.

We have given the characteristics to the parties of the disputes regarding public service; explained who among the participants of legal relations can possess legal personality of the plaintiff and defendant. The plaintiffs in the disputes regarding public service are: a) persons which pretended to occupy the public post; b) public offi cials; c) persons displaced from public service. The cases regarding public service can have as a plaintiff the physical person – citizen of Ukraine, in other words, the public serviceman as only the citizens of Ukraine have right for public service. The physical person – plaintiff can also not have the status of serviceman if it is

about the candidate for the relevant post. The defendants in the cases subject of consideration are state institution or local authorities: a) for occupation of the post, on which the person pretended; b) with whom the person has the relations of public service; c) from which the person is displaces; d) which legal act is a conditions for accepting the person for the post or displacing him or her from it.

It has been proved that the important role in the proceeding regarding consideration of the dispute regarding public service is played by the third parties which act in the administrative case already brought to the court between the parties for defence of personal rights, liberties and interests of physical persons, rights and interest of legal entities in the sphere of public legal relations.

Regarding the rules of subject-matter jurisdiction, the suits of public servants are considered by: local general courts as administrative courts when the defendant is a body or offi cial of the local authorities; district administrative courts when the defendant is state body, power body of ARC, regional councils, Kyiv and Sevastopol municipal councils, their offi cials; by the Higher administrative court of Ukraine as a court of fi rst instance in cases regarding suits of public offi cial concerning appeal against acts, actions or inactions of the Verhovna Rada of Ukraine, President of Ukraine, High council of justice, High qualifi cation commission of judges of Ukraine and under the suits of the Head of the Verhovna Rada of Ukraine, his deputies regarding long-term suspension of the powers of people’s deputy of Ukraine in case of non-performance of the demands on incompatibility.

The application of the terms of application to the court in the cases regarding public service is well grounded. Regarding the fi rst part of the article 99 of the Code of Administrative legal proceeding of Ukraine, the administrative suit can be presented within the term of application to the administrative court determined by this Code or other laws. The general term of application to the court is a six-month term which shall be calculated from the day when a person got to know or had to get to know about violation of his/her rights, liberties or interests (part 2 article 99 of CAP of Ukraine).

 

The consideration of the disputes which arise from the relations of public service, shows a huge number of gaps and non-coordination in the legislation regarding public service as well as in the administrative legal proceeding itself. For this reason before legal elimination of the defi ciencies, the legal practice permits to decrease the cases of false application of the norms of material and procedural law, prevents occurrence of legal collisions in this area, provides the unity of law application which increases the effi ciency and effi cacy of public service as well as administrative legal proceeding.

 

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.

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