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

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

Golovachova A. S. Sources of legal regulation of insurance and reinsurance mediation activity

    For the operation of any economic activity as an orderly, organized system there is a set of social controls – the sources of law. Both a general theory of law and the branches of law lack unanimity in understanding of the concept of «source of law». The reason for this is the presence of various concepts of thinking and ambiguity of the defi nition of «source of law». The theory of economic law includes both a broad approach to understanding the sources of law and a narrow approach. By taking the broad approach, the author considers the following structure of sources as the best. It consists of three groups: 1) formal legal (institutional) sources, which coincide with the law as a way to shape the internal organization and external expression of conduct contained in the law; 2) other social sources, which exist as certain facts of social reality; 3) legal practice, which holds a special place in the sources of economic law, and is the result of legal regulation having an impact on enforcement of law. It is advisable to extrapolate the said classifi cation to the sources of legal regulation of insurance and reinsurance mediation as a type of economic activity.

    According to the author, the institutional sources include legislation on insurance mediation: the Constitution of Ukraine, the Commercial and Civil Codes, the Law of Ukraine «On insurance» and other laws, international treaties ratified by Ukraine, and some subordinate regulations. The second group of the sources the author studies the business practices, which play a rather important role in the regulation of the insurance market and its participants. The participants of the insurance and reinsurance activities are expected to observe and use national and international business practices, especially if these relations are complicated by a foreign element. The last group of the sources includes the author’s answers to the question: is it possible to include legal practice to the sources of legal regulation of insurance and reinsurance mediation? Today, legal practice in Ukraine is not de jure determined by a source. The function of the courts may indeed be in some ways similar to the legislature, but only when they eliminate gaps in the legal regulation of specifi c legal relationships by using the analogy of law or law and business practices.

    Thus, to summarize the above, we can conclude that today the main source of legal regulation of insurance and reinsurance activities still remains the relevant current legislation of Ukraine. But for the full and progressive development of the insurance market as a whole one should take into account other social sources, which exist as certain facts of social reality (business practices) and legal practice.

 

 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.

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