IMPROVING THE PROCEDURE FOR ESTABLISHING JUDICIAL CONTROL IN ADMINISTRATIVE PROCEEDINGS

Abstract

Execution of a court decision that has entered into force is one of the key aspects of the administration of justice. Due to this, the Verkhovna Rada of Ukraine adopted the Law of Ukraine dated 02.06.2016 № 1403-VIII “On bodies and persons carrying out enforcement of court decisions and decisions of other bodies”, which introduced the institute of private executors. In addition, relevant amendments were made to the Law of Ukraine “On Enforcement Proceedings”. However, paragraph 2 of part 2 of Article 5 of this law restricts the execution of private executors of decisions under which the debtor is the state, state bodies, the National Bank of Ukraine, local governments, their officials, state and municipal enterprises, institutions, organizations, legal entities, the share of the state in the authorized capital of which exceeds 25 percent, and / or which are financed exclusively from the state or local budget. Due to this, the Code of Administrative Procedure of Ukraine, in contrast to the Civil and Commercial Procedural Codes of Ukraine, establishes a broader form of judicial control over the execution of court decisions. In particular, the provisions of the Code of Administrative Procedure of Ukraine stipulate that the plaintiff in whose favor the court decision is made has the right to apply to the court of first instance to declare illegal decisions, actions or omissions committed by the subject of power – the defendant court, or violation of the rights of the plaintiff, confirmed by such a court decision, in accordance with Article 383 of this Code.In a thorough study of the provisions of the Code of Administrative Procedure of Ukraine, the author found a legislative gap that the provisions of this codified normative legal act do not provide for an appeal against the refusal to satisfy the application for recognition of the decision of the subject of power. According to the author, this legislative loophole contradicts the Constitution of Ukraine, as the provisions of the highest legal act in the hierarchy do not provide for exceptions to the appellate review of the case, as “since ancient Rome, the review of judgments affairs” [1]. In connection with the above, the author proposes to amend part six of Article 383 of the Code of Administrative Procedure of Ukraine by supplementing it with provisions on appeal against the decision of the court of first instance to dismiss the application filed under this article.