Herald of Civil Procedure
EN
main-photo

We in a citing index:

SOME FEATURES OF ADMINISTRATIVE PROCEEDINGS COMPARED TO CIVIL WHICH SHOULD BE REFLECTED IN THE PROCEDURE OF PROOF, THE APPLICATION OF THE RULES ON PREJUDICIAL JUDICIAL ACT, CAUSING THEIR FEATURES

JUDICIAL AUTHORITY AND PRACTICE


M.B. VELICHKO

M.B. VELICHKO,
Judge of the Tomsk Regional Court,
Lecturer of the Department of Civil Procedure of the West Siberian Branch
of the Russian State University of Justice

The purpose of this article is to develop proposals to determine the regularities of the
reflection of certain features of administrative proceedings in the functioning of the
institution of proof, including the possibility of the use of evidentiary fictions, the limits
of judicial knowledge, the extension of the judicial act to persons who did not participate
in the decision on the administrative dispute, as well as the use of such a method of
protection as the non-application of the act by the court, contrary to another, having
greater legal force. These goals are solved by analyzing the reasons for the emergence of
legal institutions of civil and public law, determining their features, which are transferred
to the block of protective regulation of the relevant substantive law, part of which are
civil and administrative proceedings. Features of protective regulation in relation to the
topic of work, allowed to draw the following conclusions. In administrative proceedings,
the risk of non-presentation of evidence, based on public interest, is compensated by the
active role of the court, which is obliged to demand them on its own initiative. This active
role is limited to the public interest, in particular, it is expressed in the implementation
of the administrative procedure by the private entity and the subject of public authority,
which are the parties to the administrative litigation. The active role of the court in
administrative proceedings in the content of the principle of adversarial proceedings and
equality of the parties, due to the focus of the proceedings to establish a balance of private
and public interest in the consideration of each public dispute, regardless of the position of
the parties in the case. The court carries out on its own initiative the collection of evidence,
recognizes the obligatory appearance of the subject of public authority not only to assist
the party not vested with authority, implementing the principle of access to justice, but
also to achieve the task of correct and timely consideration and resolution of the legal
dispute, by establishing a balance between private and public interests in the field of public
administration. The use of such a method of protection as non-application by the court of
an act of a state or local self-government body that is contrary to the law should be carried
out in administrative rather than civil proceedings, as an independent claim against the
administrative defendant – the authority.

Keywords: administrative legal proceedings; civil legal proceedings; judicial legal dispute;
judicial control; goals and objectives of civil legal proceedings and administrative legal
proceedings; procedure of proof; evidentiary fictions.

References

Balashov A.N. Aktivnaya rol’ suda v realizatsii zadach administrativnogo sudoproizvodstva
[The Active Role of the Court in the Implementation of the Tasks of Administrative
Proceedings]. Administrator suda = Court Administrator, 2017, no. 2. (In Russian)
Nefedyev E.A. Uchebnik russkogo grazhdanskogo sudoproizvodstva [Textbook of
Russian Civil Proceedings]. Krasnodar, 2005. (In Russian)
Pavlova M.S. Pravovaya priroda i znachenie spora o prave po delam, voznikayushchim
iz publichnykh pravootnoshenij [The Legal Nature and Significance of the Dispute on Law
in Matters Arising from Public Relations]. Yurist = Lawyer, 2015, no. 2. (In Russian)
Velichko M.B. Otdel’nye problemy mekhanizma sudebnoj zashchity, svyazannye
s ponyatiem administrativnogo spora [Some Problems of the Judicial Protection Mechanism
Related to the Concept of Administrative Dispute]. In Lebedev V.M., Osokina G.L.,
Solomin S.K., Pashkova G.G. (eds.). Pravovye problemy ukrepleniya rossijskoj gosudarst
vennosti: Sb. statej. Ch. 72 [Legal Issues of Strengthening of the Russian Statehood: Collection
of Articles. Part 72]. Tomsk, 2017. (In Russian)
Velichko M.B. Soedinenie iskovykh trebovanij v administrativnom sudoproizvodstve
[Compilation of Claims in Administrative Proceedings]. Probely v rossijskom
zakonodatel’stve. Yuridicheskij zhurnal (JurVAK) = Gaps in the Russian Legislation. Legal
Journal, 2018, no. 1. (In Russian)
Velichko M.B. Sravnitel’nyj analiz kontrol’noj funktsii sudebnoj vlasti i eyo realizatsii
v administrativnom i grazhdanskom sudoproizvodstve [Comparative Analysis of the Control
Function of the Judiciary and Its Implementation in Administrative and Civil Proceedings].
In Sbornik statej po itogam nauchno-prakticheskoj konferentsii, prokhodivshej
21–23 oktyabrya 2015 goda v g. Belokurikha «Voprosy primeneniya Kodeksa administrativnogo
sudoproizvodstva RF» [Collection of Articles on the Results of the Scientific-
Practical Conference “Issues of Application of the Code of Administrative Proceedings
of the Russian Federation”, Belokurikha, 21–23 October 2015]. (In Russian)

Information about the author

Velichko M.B. (Tomsk, Russia) – Judge of the Tomsk Regional Court, Lecturer of
the Department of Civil Procedure of the West Siberian Branch of the Russian State University
of Justice (3-32 Karla Marksa St., Tomsk, 634009, Russia; e-mail: callbackm@
mail.ru).

Recommended citation

Velichko M.B. Otdel’nye osobennosti administrativnogo sudoproizvodstva po sravneniyu
s grazhdanskim, kotorye podlezhat otrazheniyu v protsedure dokazyvaniyа, primeneniyа
pravil o preyuditsial’nosti sudebnogo akta, obuslovlivayа ikh osobennosti [Some Features
of Administrative Proceedings Compared to Civil Which Should Be Reflected in the
Procedure of Proof, the Application of the Rules on Prejudicial Judicial Act, Causing
Their Features]. Вестник гражданского процесса = Herald of Civil Procedure, 2019,
no. 1, p. 423–437. (In Russian) DOI: 10.24031/2226-0781-2019-9-1-423-437

 el_.png   it_.png   book.png

Keywords