|Administrative law of ukraine as a branch of law, a science and a discipline|
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ADMINISTRATIVE LAW OF UKRAINE AS A BRANCH OF LAW, A SCIENCE AND A DISCIPLINE
As a homogeneous legal substance isolated in a system of jurisprudence , the administrative law of Ukraine is characterized as: 1) a branch of law; 2) a science; 3) a discipline.
The subject of the branch of the administrative law of Ukraine is a system of broad social relations between the public administration and the objects of the public management, which arise in the sphere of authoritative and administrative activity, rendering of administrative services, with the purpose of public guaranteeing of rights and liberties of the person and the citizen and normal functioning of the civil society and the state, with the opportunity of applying of measures of administrative compulsion and administrative responsibility to disturbers of administrative-legal regulations.
To the public administration belong:
1) organs of executive power;
2) organs of local self-government;
3) the integration of citizens or the enterprises during realization of the delegated state functions;
4) officials of any of the mentioned collective subjects of the public administration.
To the objects of the public management belong:
1) the citizens of Ukraine
2) foreigners and persons without nationality;
3) private natural persons with a special status (ex. a natural person-entrepreneur);
4) nonpublic legal persons; 5) subjects of public administration, which are subordinate, lower by hierarchical status (ex. head of the Administration of Justice in the district will be considered an object of the public management relatively to the head of the Main Administration of Justice in the region).
For the matter of the branch of the administrative law of Ukraine the following features are inherent:
1) a wide range of social relations between the public administration and the objects of the public management. Otherwise, one of the essential participants of administrative-legal relations is the subject of the public administration.
The main aim of activity of the public administration consists in guaranteeing of rights and liberties of the person and the citizen and providing of normal functioning of the civil society and the state;
The leading feature of the matter of the administrative law is its public nature:
public interest is the needs, which are important for the considerable quantity of natural and legal persons and which should be provided, according to legally established competence, by the public administration;
The relations of the public management reflect the determinative component of the subject of the administrative law: the authoritative activity is the competence of organs and officials of the public administration as to guaranteeing of execution of the laws of Ukraine; the administrative activity is the issue by them on the basis of the laws of the by-laws, which have compulsory meaning;
To the matter of the administrative law belong also the issues in rendering of administrative services by the public administration ;
One of the constituents of the matter of the administrative law is the internal activity of the public administration, but only that part of it, which is executed in a legal form;
An integral constituent of the matter of the administrative law of the democratic lawful state is the means of responsibility of the public administration for illegitimate actions or inactivity;
The important feature of the matter of the branch of the administrative law is the possibility of undertaking by the public administration of the measures of administrative compulsion and administrative responsibility;
It is irrational to include into the matter of the branch of the administrative law the clauses, which although correspond to the above-mentioned features formally, have nevertheless become the matter of regulation of other branches of the law, for example the ecological law1.
The absence in these features of mentioning about the activity of the administrative justice is explained by the fact that the including of it to the sphere of regulation of the current administrative law should be considered a temporary measure. Because the independent procedural-legal branch should be created, which will regulate separately the legal proceedings in administrative courts (administrative legal proceedings)2.
Administrative-legal methods is the complex of ways and modes of impact of the public administration on the objects of management as to providing of regulative impact of regulations of the administrative law on social relations, with aid of which the legally authoritative and legally dependent status of the parties in legal relations is established.
The relations, which arise under the impact of the administrative-legal methods of regulation, are characterized by inequality of parties and are called the relations of “authority-subordination”.
In the legal aspect the content of such relations means that:
first, the subject of the public administration establishes on the grounds of the empowered competence the requirements compulsory for fulfillment by the objects of the public management;
second, the object of the public management is obliged to fulfill the legal requirements of the subject of the public administration;
third, these relations do not require and do not exclude the organizational subordination, but the decree of the subject is in any legally provided case compulsory for fulfillment by the object.
The example of such legal relations can be the requirement of a policeman(a subject of the public administration) to the natural person (an object of management) to stop the actions, which disturb civil order and peace of citizens. The natural person is obliged to submit to the requirement of the policeman, since the latter is empowered by the legislation of Ukraine with public authoritative competence of preventing of violations of law, and if the persuasions had no effect – to apply the measures of administrative compulsion.
In the narrow interpretation the legal equality of relations during the use of the administrative-legal method of regulation is absent. But it does not mean that the principle of equality mentioned in p. 21 of the Constitution of Ukraine “All people are free and equal in their dignity and rights” is broken. In the moment of illegal behavior, when a person disturbs the rights of other persons, he delegates by the law to the public administration the right of applying of power against him. But after fulfillment of requirements of the public administration natural or legal persons have the right of disputing the legality of any actions (or inactivity) of the public administration to several instances – higher governing body of the subject of the public administration, the office of public prosecutor, the administrative court, the authorized representative of the Verkhovna Rada of Ukraine on person’s rights, the European Court on person’s rights. Besides, the person, who considers that his rights have been disturbed, can apply for legal support to plenty of law-enforcement public organizations and raise the question of disturbing of his rights in mass media etc. In that way, in wide interpretation, the equality of rights of subjects and objects of public management is not broken under the applying of the administrative-legal method of regulation.
As a whole, the administrative-legal method of regulation has the following features:
first, the administrative-legal regulation presupposes the unilateralism of authoritative demonstration of the subject of the public administration to the object of the public management;
second, the foremost measures of the realization hereof are prohibitions, obligations, administrative compulsion and administrative responsibility;
third, as a rule, there is no organizational subordination between the subject and the object of the public management (except the cases of administrative impact of higher organs on lower ones);
fourth, under the conditions of the legal democratic state the authoritarian method of impact of subjects of the public management to the objects is balanced by strict compliance with the principle of legality by the subjects and the possibility of multistage appealing against the actions of the subjects of the public administration;
fifth, the relations “authority-subordination” do not exclude on certain stages of administrative-legal relations the use of the disposition method of regulation of social relations (for example when concluding administrative contracts).
Thus, the foremost method of the administrative law is the administrative-legal method of lawful regulation of social relations, the essence of which consists in the fact, that the subject of public management is empowered with authoritative competence, and the object is obliged to fulfill his legal requirements. Under the conditions of the democratic lawful state the mentioned method has lost authoritarian features, because it is balanced by strict compliance by the public administration of legality and by the possibility of the object of public management to appeal against his actions to several independent instances.
Therefore, the administrative law as a branch of the law is the complex of legal regulations meant for settlement on the principles “authority-subordination” of broad social relations between the public administration and the objects of the public management, which arise in the sphere of state management, rendering of administrative services with the aim of public guaranteeing of rights and liberties of the person and the citizen, normal functioning of the civil society and the state, with the possibility of applying of measures of administrative compulsion and administrative responsibility against the breakers of administrative-legal regulations.
The notion of the administrative law as a science is wider than the notion of the administrative law as a branch of the law. The science of the administrative law studies not only the administrative-legal regulations and relations in the sphere of the state management, but also analyses the practice of applying of the current legislation. It researches: administrative-legal institutions and their correlation; the problems of systematization and codification of the administrative law; the legal status of subjects of the administrative law, their rights and obligations, administrative procedures and problems of the administrative process and administrative jurisdiction; the means of providing and consolidation of procedure of legality, discipline and responsibility in the sphere of executive and administrative activity; the interrelation of the administrative law with other branches of the legal system; the stages of the historical development of the branch of the administrative law, the ways of the further improvement hereof; the experience of the administrative-legal regulation and achievements of the foreign science of law3.
Thus, the science of the administrative law is the theoretical clauses and methodological fundamentals, which provide the process of research, analysis and work-out of propositions, recommendations and conceptions on legal regulation of social relations in the sphere of organization and functioning of the public management, rendering of administrative services of many-sided public guaranteeing of rights and liberties of natural and legal persons etc.
The administrative law of Ukraine is taught in law and other educational establishments with the aim of acquirement by future lawyers and officials of state organs of the system of theoretical and scientific applied knowledge as to the principles and procedure, which regulate social relations in the sphere of executive authority and state management, as well as of skills and habits of practical applying of the mentioned knowledge.
The educational course of the administrative law consists of the general part and the special part. The first one reveals the beginnings and basic stages of development of the administrative law, its place in the system of the native law, the sources of the administrative law and administrative legislation etc. It depicts the dynamism of development, reflects the changes, which take place in the society and in the state, and formation of new relations, at the same time the certain administrative-legal heredity is considered (preservation of current administrative-legal regulators and ratification of them under new social conditions).
Thus, the administrative law of Ukraine as an educational discipline is the course systematized according to the curriculum, which is taught in educational establishments of Ukraine with the aim of acquirement by future lawyers and other interested persons of the system of theoretical and scientific applied knowledge as to regulations, principles, means and other institutions of the administrative law, as well as skills and habits of practical applying of such knowledge.
The conceptions of development of the administrative law in Ukraine are as follows:
1) The general branch of the administrative law of Ukraine is defined the service conception, according to which the public administration should guarantee public rights, liberties and legal interests of natural and legal persons as completely as possible;
2) The Constitution of Ukraine and the fundamental international regulatory documents ratified by the Verkhovna Rada of Ukraine approved in Ukraine the Western conception of understanding of rights and liberties of the person and the citizen, according to which the public (individual) rights and liberties of the person and the citizen are recognized prior compared to the interests of the collective, the state or to social interests in general.
3) Functionally, the administrative reform in Ukraine provides the change to the new understanding of functions of the public authority, that directs its efforts first of all to rendering of effective administrative services, with the aim of development of the social-legal, democratic state;
4) One of the indisputable conceptual direction of reforming of the whole legal system of law of Ukraine, in particular the administrative law, is the phased putting in effect of its regulations and adoption of the new ones, which would correspond to the requirements “acquis communautaire” of the legal system of the European Union;
5) An important element of the modern administrative law is securing of development of the principles of civil society, which is at the same time the aim and the means of functioning of all the state-legal reality;
6) The foremost constituent of development of the branch of the administrative law is the development of constitutional-legal principles on rendering of social services to the persons, which are not able to support themselves on their own or on the private initiative;
7) Guaranteeing of rights and legal interests of subjects of economical activity is the foremost direction of the branch of the administrative law with market economy;
8) An important branch on protection of natural and legal persons by means of the administrative law is the development of the administrative-legal principles of prevention and opposition to corruption;
9) In the sphere of prevention (precautions) of violations of the law as to non law-abiding persons the administrative pressure of subjects of the public administration should be constantly increasing unless the mentioned persons refuse their unlawful behavior;
10) The society has to get from the branch of the administrative law the answers about the ways of providing for natural and legal persons of the goods, works and services of high quality.
Therefore, the modern administrative law of Ukraine contain best acquisitions of the native and world administrative-legal thought and proceeds from the conception of the priority of legal public rights and liberties of the person and the citizen.
1 Administrative law of Ukraine nowadays (the beginning of the 21st cent. ): monograph/ edited by Valentyn Galunko. – Kherson, 2010. – p. 11-21. - Access: http://www.law-property.in.ua/images/books/apuvsu.pdf (in Ukrainian)
2 Administrative Law of Ukraine/ edited by Vadym Averyanov – Kyiv, 2004. – Vol. 1. (in Ukrainian). – p. 73. (in Ukrainian).
3 Averyanov Vadym. – Quoted investigation. – p. 86.
4 Galunko Valentyn. – Quoted investigation. – p. 21-26.
5 Galunko Valentyn. – Quoted investigation. – p. 26-37.
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|Обновлено 26.01.2011 13:44|