Article title Notional Conflicts in the Restated Code of Administrative Judicial Procedure of Ukraine
Authors
Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 2/2018
Сторінки [71-83]
DOI https://doi.org/10.33498/louu-2018-02-071
Annotation

Procedural laws underlying all types of judicial proceedings should comply with a range of requirements, one of them being no notional conflicts in the meaning of such laws. However, the legislator’s attempted unification of the procedural bases of administrative, civil and commercial court procedure has entailed numerous conflicts in the restated Code of Administrative Judicial Procedure of Ukraine (hereinafter – CAJP of Ukraine). To some extent, this is linked to the specifics of tasks of administrative judicial procedure, to the specific features of the subject matter of public law disputes, and also to the legal status of participants of relevant cases. The purpose of this article is to identify notional conflicts in the restated Code of Administrative Judicial Procedure of Ukraine and to analyze their possible impact on the process of administration of justice in administrative cases. The author has identified the conflicts with regard to how the tasks of administrative judicial procedure are defined, in particular, those that the purpose of administrative judicial procedure in administrative cases of some types is incompatible with such tasks by its subject-matter. In particular, such cases may be seen among cases based on applications of subjects vested with power. Using as an example the analysis of the terms “court judgment” and “judgment of court”, the author identifies terminology-related conflicts. Conflicts associated with the problems of the analogy of statute and the analogy of law used in administrative judicial procedure are considered from the perspective of a possible risk that relevant provisions of the Code of Administrative Judicial Procedure of Ukraine may get double interpretation. The article describes a hidden conflict relating to the methods of court decision enforcement by local self-government authorities. Notional conflicts are identified with regard to court representation of subjects vested with power of some categories, in particular, local self-government authorities, as well as with regard to the possibility of resolving public law disputes through conciliation. Having analyzed the essence of the existing notional conflicts, the author doubts whether there is a need for some aspects of unification of different types of judicial proceedings with different nature. Based on the research of the identified conflicts the conclusion is made that some of them, in particular those relating to the tasks of administrative judicial procedure and the use of the analogy of statute and the analogy of law, may complicate the implementation of administrative judicial procedure, and therefore, should be resolved by making appropriate amendments and additions to the Code of Administrative Judicial Procedure of Ukraine, thus contributing to the improvement of the quality with which this type of justice is administered.

 

Keywords administrative judicial procedure, public law dispute; notional conflicts; conflicts in administrative judicial procedure
References

List of legal documents

 

 

 

Legislation

1. Kodeks administratyvnoho sudochynstva Ukrainy [The Code of Administrative Judicial Procedure of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 6 lypnia 2005 r. № 2747-IV. Vidomosti Verkhovnoi Rady Ukrainy. 2005. № 35-36. № 37. St. 446 (in Ukrainian).

2. Kodeks administratyvnoho sudochynstva Ukrainy [The Code of Administrative Judicial Procedure of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 6 lypnia 2005 r. № 2747-IV (u redaktsii Zakonu Ukrainy [As Amended by the Law of Ukraine] vid 3 zhovtnia 2017 r. № 2147-VIII). URL: http://zakon0.rada.gov.ua/laws/show/2747-15 (accessed: 05.01.2017) (in Ukrainian).

3. Pro mistseve samovriaduvannia v Ukraini [On Local Self-Government in Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 21 travnia 1997 r. № 280/97-VR. URL: http://zakon3.rada.gov.ua/laws/show/280/97-%D0%B2%D1%80 (accessed: 05.01.2018) (in Uk rainian).

4. Pro vnesennia zmin do Hospodarskoho protsesualnoho kodeksu Ukrainy, Tsyvilnoho protsesualnoho kodeksu Ukrainy, Kodeksu administratyvnoho sudochynstva Ukrainy

ta inshykh zakonodavchykh aktiv [On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Judicial Procedure of Ukraine and other Acts of Legislation]: Zakon Ukrainy [Law of Ukraine] vid 3 zhovtnia 2017 r. № 2147-VIII. Holos Ukrainy. 2017. № 221-222 (in Ukrainian).

5. Zemelnyi kodeks Ukrainy [The Land Code of Ukraine]: Zakon Ukrainy [Law of Ukraine] vid 25 zhovtnia 2001 r. № 2768-III. URL: http://zakon5.rada.gov.ua/laws/ show/2768-14 (accessed: 07.01.2018) (in Ukrainian).