of December 26, 2005 No. 3.2.-2005
About application by economic courts of Ukraine of provisions of the procedural legislation concerning delimitation of competence between specialized administrative and economic courts
Materials of economic cases testify to ambiguity of court practice concerning application by economic courts of Ukraine of provisions of the procedural legislation which concerns differentiation of competence between specialized administrative and economic courts. For the purpose of ensuring unity of court practice it is necessary to consider the following.
The analysis of current edition of the Code of administrative legal proceedings of Ukraine (further - KASS of Ukraine) does not allow to formulate the general rule according to which there will be differentiation of competence between administrative and economic courts. To the solution of this problem at the legislative level it is offered in case of determination of criteria of separation of disputes on administrative and economic to consider the following:
1. Definition of the concept "case of administrative jurisdiction" is given in Article of 3 KASS of Ukraine which is understood as the public dispute transferred to the decision of administrative court in which at least one of the parties is the subject which performs imperious managerial functions based on the legislation, including on accomplishment of the delegated powers.
I.e., the dispute which arose between two (several) specific subjects of society concerning their rights and obligations in specific legal relations in which at least one subject is legislatively authorized to direct imperiously behavior of another (other) subjects can be transferred by case of administrative jurisdiction to the decision of administrative court, and these subjects respectively shall fulfill requirements and instructions of such imperious subject.
If the subject (including public authority, local government body, their official or the official) in disputable legal relationship does not perform the specified imperious managerial functions concerning other subject who is disputing party, such dispute does not deal KASS established by regulations Ukraine signs of administrative jurisdiction, and, respectively, shall not be solved administrative court.
Article of 17 KASS of Ukraine establishes categories of disputes to which competence of administrative courts, concerning the solution of administrative cases extends. With economic disputes the categories of disputes determined in Items 1, of 3, 4 specified Articles can be crossed namely:
a) disputes of persons with the subject of powers of authority on appeal of its decisions, actions or divergence;
b) disputes between subjects of powers of authority concerning realization of their competence of the management sphere, and also disputes over occasion of the conclusion and accomplishment of administrative agreements;
c) disputes over addresses of the subject of powers of authority in the cases established by the law.
It is provided in all given categories of disputes that at least the subject of powers of authority shall be one of the parties of such dispute.
2. The concept "subject of powers of authority" is determined in Article of 3 KASS of Ukraine - it is public authorities, local government body, their official or officials, other subject when implementing of imperious managerial functions by them on the basis of the legislation, including on accomplishment of the delegated powers.
Therefore, necessary and single sign of the subject of powers of authority is implementation by this subject of imperious managerial functions, at the same time these functions shall be performed by the subject in those legal relationship on which there was dispute.
If the subject (including public authority, local government body, their official or the official) in disputable legal relationship does not perform the specified imperious managerial functions (concerning other subject who is disputing party), such subject is not "when implementing managerial functions", and has no KASS of Ukraine of necessary signs of the subject of powers of authority established by regulations.
Proceeding from above-mentioned criterion, it is possible to mark out certain categories of cases which consideration according to Articles 1, of 4, 17 CASH DESKS of Ukraine shall be performed according to the procedure of administrative legal proceedings:
a) disputes of persons with the subject of powers of authority on appeal of its decisions, actions or divergence on which such subject the imperious decisions or actions obliges these persons to make certain actions, to abstain from making of certain actions, to bear responsibility. At the same time persons according to regulations of the current legislation of Ukraine shall fulfill such imperious solutions or requirements of the subject of powers of authority;
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