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RESOLUTION OF THE PLENUM OF THE SUPREME ADMINISTRATIVE COURT OF UKRAINE

of September 29, 2016 No. 12

About generalization of practice of permission by administrative courts of the disputes arising in connection with refusal of body of state registration of acts of civil status

Having heard the report of the vice-chairman, the secretary Plenum of the Supreme administrative court of Ukraine Smokovich M. I. about generalization of practice of permission by administrative courts of the disputes arising in connection with refusal of body of state registration of acts of civil status, the plenum of the Supreme administrative court of Ukraine decides:

1. Report of the vice-chairman, secretary of plenum of the Supreme administrative court of Ukraine Smokovich M. I. take into consideration.

2. Recommend to judges of administrative courts Generalization of practice of permission by administrative courts of the disputes arising in connection with refusal of body of state registration of acts of civil status is (applied) to be considered in case of decision making for the corresponding category.

Chairman

A. N. Nechitaylo

Secretary Plenuma

M. I. Smokovich

The certificate of results of studying and generalization of practice of permission by administrative courts of the disputes arising in connection with refusal of body of state registration of acts of civil status

In pursuance of the work plan of the Supreme administrative court of Ukraine on the first half of the year 2016 on the Supreme administrative court of Ukraine studying of practice of permission by administrative courts of the disputes arising in connection with refusal of body of state registration of acts of civil status is performed.

The purpose of such studying is need of generalization of court practice on consideration of the specified category of administrative disputes, identifications of problematic issues in the solution of cases which arise in connection with refusal of body of state registration of acts of civil status, and assistance to development of single approach to the solution of such cases and to improvement of quality of their consideration.

The decisions of administrative courts made in 2015 on cases on administrative claims for occasion of refusal of body of state registration of acts of civil status to make corrections to assembly record of civil status were object of studying.

The official statistical reporting of administrative courts does not allow to trace in full quantitative indices of consideration of administrative cases of this category. With respect thereto the quantitative indices received by the information processing provided Vinnytsia, Dnipropetrovsk, Donetsk, Zhytomyr, Kiev, Lviv, Odessa and Kharkiv by Appeal administrative courts are given.

According to the available information, during 2015 in production of Appeal administrative courts there were 109 cases, Trial Courts - more than 247 cases.

Considering statistical data on hearing of cases of this category It should be noted that such disputes constitute insignificant percent of total quantity of the actions for declaration and cases which were in production of administrative courts.

As showed the analysis of decisions of the courts of the first and appeal instances, the Supreme administrative court of Ukraine accepted using provisions of the Code of administrative legal proceedings of Ukraine of 06.07.2005 No. 2747-IV, the Law of Ukraine of 01.07.2010 No. 2398-VI "About state registration of acts of civil status" (with changes), Rules of modification of assembly records of civil status, their recovery and cancellation approved by the order of the Ministry of Justice of Ukraine of 12.01.2011 No. 96/5 (with changes), information provided by Appeal administrative courts by results of studying of court practice on this matter in law-enforcement activity of the courts there is number of problems.

Introduction

The constitution of Ukraine determines that the person, his life and health, honor and advantage, immunity and safety are recognized Ukraine the highest social value. Therefore human rights and freedoms and their guarantees determine content and orientation of activities of the state. Approval and providing human rights and freedoms is the main obligation of the state (article 3 of the Constitution of Ukraine).

Subjective human rights and freedoms are not exhausted darkness which are directly fixed by the Constitution of Ukraine. The personal non-property rights affirmed by the Civil code of Ukraine, in particular the rights, providing natural existence and social life of physical person are of great importance for public life of person (Chapter 21, 22 Civil codes of Ukraine 1, further - the Civil Code of Ukraine). Owing to coherence of various spheres of legal relationship and interaction of the branches of law regulating these spheres, the personal non-property rights have not only private-law, but also public value. In particular, the relations which the personality with state bodies and other subjects of powers of authority in processes when the state performs the constitutional approval function and providing human rights and freedoms enters are public.

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1 The civil code of Ukraine of 16.01.2003 No. 435-IV (with changes) [Electronic resource]//the Official portal of the Verkhovna Rada of Ukraine. - Access mode: http://zakon.rada.gov.ua/laws/show/435 15.

Among events and actions which are dispositive facts for the person (physical person) acts of civil status - events and actions which are inseparably linked with physical person have special value and begin, change, supplement or stop its opportunity to be subject of the civil laws and obligations (part one of Article 49 of Civil Code of Ukraine). Considering what the personal non-property rights have not only civil, but also public nature, it is possible to claim that acts of civil status are important for all public human life as in the private, and public sphere.

Important component of activities of the state for providing human rights and freedoms is state registration of acts of civil status. State registration is public certificate of acts of civil status 2, which provides general (both in private, and in the public relations) recognition of legal personality of person. Thus, in the course of civil registration of people (physical person) enters the public relations with the state on behalf of state body, authorized to perform state registration of acts of civil status.

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2 The scientific and practical comment to the civil legislation of Ukraine: [In 4 t.] / A. G. Yarema, V. Ya. Karaban, V. V. Krivenko, V. G. Rotan. - T. 1. - M.: A. S. To., 2004. - Page 269.

The part three of Article 49 of Civil Code of Ukraine determines that acts of civil status which are subject to state registration is the birth of physical person and its origin, nationality, scrap, annulment of marriage, change of name, death. According to part four of this Article state registration of acts of civil status is made according to the law. Such law is the Law of Ukraine of 02.07.2010 No. 2398-VI "About state registration of acts of civil status" 3 (further - the Law). This Law determines legal and organizational basis of state registration of acts of civil status, regulates procedure for carrying out state registration of acts of civil status, fixing the bases, terms, the place of state registration, maintaining the State register of acts of civil status of citizens. In particular, article 22 of the Law regulates the bases and procedure for modification of assembly records of civil status. In more detail these questions are regulated by the Rules of modification of assembly records of civil status, their recovery and cancellation approved by the order of the Ministry of Justice of Ukraine of 12.01.2011 No. 96/54.

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- 3 Law of Ukraine "About state registration of acts of civil status" of 02.07.2010 No. 2398VI (with changes) [Electronic resource]//the Official portal of the Verkhovna Rada of Ukraine. - Access mode: http://zakon.rada.gov.ua/laws/show/2398-17.

- 4 Order of the Ministry of Justice of Ukraine of 12.01.2011 No. 96/5 "About approval of Rules of modification of assembly records of civil status, their recovery and cancellation" (with changes) [Electronic resource]//the Official portal of the Verkhovna Rada of Ukraine. - Access mode: http://zakon.rada.gov.ua/laws/show/z0055-11.

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