of February 8, 2012 No. 373/11/13-12
To chairmen of Appeal administrative courts
In the Supreme administrative court of Ukraine the appeal of Regional Representative office of United Nations High Commission for Refugees in Belarus, Moldova and Ukraine in which the attention is paid, in particular on practice of the decision by courts of question of determination of the proper defendant in the cases connected with provision of the status of the refugee in connection with liquidation of the State committee of Ukraine for nationalities and religions according to the Presidential decree of Ukraine of December 9, 2010 No. 1085/2010 "About optimization of system of the central executive bodies" arrived and the following is reported.
According to part two of Article 81 of the Civil code of Ukraine legal entities, depending on procedure for their creation, are divided on legal entities of private law and legal entities of the public law. The legal entity of the public law is created by the ordering act of the President of Ukraine, public authority, authority of the Autonomous Republic of Crimea or local government body.
The part three of the specified Article provides that the procedure for education and legal status of legal entities of the public law are established by the Constitution of Ukraine and the law.
In particular, the procedure for education, reorganization and liquidation of the ministries and other central executive bodies is settled by article 5 of the Law of Ukraine of March 17, 2011 No. 3166-VI "About the central executive bodies" (further - the Law).
Part one of the specified Article provides that the ministries and other central executive bodies will be formed, will be reorganized and are liquidated by the President of Ukraine on representation of the Prime Minister of Ukraine.
According to part five of this Article the ministry, other central executive body stops by reorganization (merge, accession, separation, transformation) or liquidations.
The ministries, other central executive bodies concerning which the act of the President of Ukraine of their termination became effective continue to perform powers and functions in certain spheres of competence before completion of implementation of actions by training of the ministry, other central executive body to which pass powers and functions of the ministry, other central executive body which stops, and possibilities of ensuring implementation by it of these functions and powers about what the relevant act of the Cabinet of Ministers of Ukraine (part seven of article 5 of the Law) is issued.
The presidential decree of Ukraine about liquidation of the ministry, other central executive body determines executive body to which powers and functions of the ministry, other central executive body which is liquidated (part eight of article 5 of the Law) are delegated.
The procedure of the actions connected with education, reorganization or liquidation of the ministries, other central executive bodies is determined by the Cabinet of Ministers of Ukraine (part nine of article 5 of the Law).
In pursuance of part nine of article 5 of the Law No. 1074 is approved by the resolution of the Cabinet of Ministers of Ukraine of October 20, 2011 the Procedure of the actions connected with education, reorganization or liquidation of the ministries, other central executive bodies.
By Item 12 of this Procedure it is determined that the executive body concerning which the act of the President of Ukraine of its termination became effective continues to perform powers and to perform functions on forming and realization of state policy in certain President of Ukraine to the sphere to the introduction in operation of the act of the Cabinet of Ministers of Ukraine concerning possibility of ensuring implementation by educated executive body of its powers and accomplishment of functions.
The act of the Cabinet of Ministers of Ukraine of possibility of ensuring implementation by educated executive body of powers and accomplishment of functions of executive body which stops, issued after implementation of the actions connected with state registration of educated executive body as the legal entity of the public law, approval of regulations on it, structure and the staff list of its device, the estimate and filling of 30 percent of vacancies (Procedure Item 13).
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