Досудовий розгляд та вирішення адміністративних спорів: законодавче регулювання, зарубіжний досвід

The dissertation is dedicated to a comprehensive study of the procedures for pre-trial consideration and resolution of administrative disputes in Ukraine through the lens of foreign experience. The qualifying research work is the first systematic study of legislative regulation and foreign experience of pre-trial administrative disputes consideration and resolution in Ukraine. A detailed analysis of legislation on administrative process, administrative procedure, citizens' appeals, and sectoral laws in certain areas of administrative legal relations (tax, customs, relations related to pensions and public service) has been carried out. The purpose of the dissertation is to study the legal essence and foreign experience of pre-trial administrative disputes resolution in Ukraine, its significance and prospects for application, and to develop proposals for improving national legislation hereof. The author initially provides a reasonable distinction between the procedures for pre-trial administrative disputes resolution and alternative, out-of-court (including mediation) administrative disputes resolution. The author proves that pre-trial administrative disputes resolution is an administrative procedure. It is emphasized that most features, principles and stages of administrative procedure should apply to certain means of pre-trial administrative disputes resolution. The author proves that mediation, including administrative one, is an out-of-court dispute resolution procedure. This conclusion is confirmed, in particular, by provisions of Code of Administrative Procedure of Ukraine and Law of Ukraine "On Mediation". It is substantiated that pre-trial administrative disputes resolution is a special type of pre-trial disputes resolution belonging to alternative disputes resolution. It is proved that alternative administrative disputes resolution functioning separately from administrative court proceedings includes pre-trial disputes resolution (including administrative appeal, consiliation and dispute resolution by administrative commissions), mediation as an out-of-court procedure, and other reconciliation procedures applied at any stage of administrative dispute resolution (they do not belong to any of listed categories, in particular, dispute resolution with the participation of a judge). The author provides a scientific definition of pre-trial administrative dispute resolution as an administrative procedure which is used by an administrative body and a person as a means of resolving a legal conflict between them, is free of charge and carried out without the participation of a court, and does not exclude further recourse to judicial protection in case the parties fail to achieve the desired result of dispute resolution. The author also focuses on definitions of alternative administrative dispute resolution and out-of-court administrative dispute resolution, and identifies their features, types and peculiarities. The author initially formulates a scientific definition of mandatory pre-trial administrative disputes resolution. It is defined as an administrative procedure which is mandatorily applied by an administrative authority and a private entity to the end of legal conflict resolution, is free of charge and carried out without court participation, and does not exclude subsequent recourse to judicial protection in case of failure to achieve the desired result of dispute resolution. The author identifies key features and prerequisites for mandatory pre-trial administrative dispute resolution. The author proves the practical necessity of introducing mandatory means of certain categories of administrative disputes resolution into national legislation and law enforcement practice, which should act as an additional "filter" on the way to judicial protection. Thus, provided that effective mandatory pre-trial settlement mechanisms are applied before administrative court, most disputes are to be resolved without the the resources of the judicial system which incures less pressure and burden. The key advantage for administrative courts is their ability to concentrate on the most complex and multi-level administrative cases. Based on a thorough analysis of the court practice of disputes resolution in the field of public service, including military one, it has been established that due to imperfect legislative regulation of pre-trial administrative disputes resolution, courts, law enforcement agencies and private entities inconsistently identify certain regulatory procedures as pre-trial dispute resolution. Such a situation gives rise to contradictory conclusions when interpreting legal provisions of court decisions, and may result in violation of the rights and legitimate interests of individuals and the state. An author carries out a comprehensive study of foreign experience with regard to pre-trial administrative disputes resolution with identifying the most advanced mechanisms for their implementation in Ukraine (the ones could successfully strengthen the national legal system). The author focuses on the study of such procedures in the countries of continental, common law and mixed law families. Foreign experience illustrates that pre-trial administrative dispute resolution procedures are not consistently characterized by the legislator as such. Not every country has a comprehensive law regulating pre-trial dispute resolution, including administrative disputes resolution. However, most countries that demonstrate positive experience when applying alternative administrative dispute resolution utilize specifically pre-trial procedures. The mandatory pre-trial administrative disputes resolution is widely used abroad and is highly recommended for Ukraine. Among the countries of the continental legal family, the positive experience of Germany, Italy, France, the Netherlands, Belgium, Latvia, Lithuania, Poland and some countries of the South American continent (Mexico, Peru, Chile, Colombia, Argentina) is definitely noteworthy. Widely used pre-trial mechanisms in these jurisdictions include administrative complaints, objections, conciliation, dispute resolution by administrative commissions and the activities of the public interest ombudsman. Such procedures are mostly enshrined as mandatory before applying to administrative court. Among common law countries, the author has studied laws of the United Kingdom of Great Britain and Northern Ireland, the United States of America, Canada, Japan and Australia. The most effective mechanisms imply specialized tribunals for certain administrative cases (tax, social security, public service, public procurement). The appeals against decisions of public authorities via tribunals usually serve as prerequisite for further recourse to the courts. The mandatory administrative mediation is commonly applied in some foreign countries, but for the Ukrainian legal system it is illogical and inconsistent step to identify mediation as a pre-trial procedure due to its essence of a voluntary confidential out-of-court procedure. The author initially proposes to develop legislative regulation of the consiliation procedures as means of pre-trial administrative disputes resolution and emphasizes on the necessity for its implementation in the national legal system. When analyzing foreign experience in regulating such procedures, the author refers to the regulations of France, Poland and Lithuania. The main feature of the conciliation is the conciliator’s ability to offer mutually beneficial options for dispute resolution, unlikely organizing dispute resolution process itself. The practical significance of this dissertation is developing relevant amendments to national legislation on the regulation of pre-trial administrative disputes resolution. As an appendix to this study, the author provides a Draft Law of Ukraine "On amendments to laws regarding the expanding of legal regulation of pre-trial administrative dispute resolution procedures". This draft law illustrates amendments into two key laws. Thus, it is offered to include into Code of Court Administrative Procedure of Ukraine statutory definitions of alternative and out-of-court dispute resolution, as well as to amend part four of Article 122 with establishing a rule on the general term for applying to an administrative court after pre-trial dispute resolution. Simultaneously, it is proposed to include into Law of Ukraine "On Administrative Procedure" the statutory definitions of pre-trial administrative dispute resolution and mandatory pre-trial administrative dispute resolution. The preliminary implementation of the results of the dissertation is carried out by the author in cooperation with her scientific supervisor when preparing scientific conclusions during the assessments of draft laws submitted by the committees of Verkhovna Rada Ukrainy with regard to administrative and administrative procedural legal relations. Besides, the results of dissertation also are implemented by All-Ukrainian Association of Administrative Judges when preparing offers for improving administrative and administrative procedural laws and judicial practice.

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