УДК 342.482

ORCID: 0000-0002-5351-9653

DOI 10.37566/2707-6849-2023-1(42)-7

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Yurii TSVIRKUN,

Doctor of law, Professor of the Department of Public and International Law Kyiv National University of Economics named after Vadym Hetman, Retired judge of the High Administrative Court of Ukraine

REGARDING THE INVOLVEMENT OF THE APPELLATE INSTANCE BY THE COURT TO PARTICIPATION IN THE CASE OF A PERSON IN ADMINISTRATIVE PROCEEDINGS

The article analyzes the procedural norms of the law that regulate issues related to the replacement of an improper party and the involvement in the case of persons who did not participate in the case and the practice of applying these norms by the appellate court in administrative proceedings.

It is emphasized that during the administration of justice by the appellate courts of administrative jurisdiction, a certain ambiguity arose regarding the application of procedural norms, which determine the procedure for replacing the improper party and involving the second defendant (co-defendant) in the case. The question is raised why a person who did not take part in the case, if the decision of the court of first instance concerns his rights, freedoms, interests and (or) duties, can independently enter the court process at the stage of consideration of the case in the court of appeal and take participation, then why such a person cannot be involved in the case at the initiative of a party or a third person or at the initiative of the court.

Attention is drawn to the fact that the current rules of procedural law, which regulate issues related to the replacement of an improper party and the involvement in the case of persons who did not participate in the case at the stage of its consideration by the appellate administrative court, limit the competence of the appellate court and prevent the consideration of administrative cases within a reasonable time, as required by law and needed by the parties to the case. It is noted that the inconsistency of the norms of procedural law, which establish the procedure for conducting administrative proceedings, creates problems of prompt response by administrative courts to the dishonest performance of management functions by subjects of authority and the unity of judicial practice, which in general has a negative effect on the protection of individuals and legal entities from violations of side of the government.

Taking into account the analysis of relevant procedural norms, it was concluded that certain provisions that establish the powers of appellate administrative courts regarding the involvement of persons who did not participate in the case, but the decisions of the court of first instance may affect their rights and obligations, need to be improved. In particular, as it was concluded, the relevant problem can be solved either by reviewing and changing the established legal position by the Supreme Court, or by making appropriate changes to the procedural legislation, which, in the opinion of the author, is more likely and necessary to overcome legal differences.

Key words: norms of procedural law, administrative court, appellate court, replacement of an improper party, involvement of a second defendant.

References

The Constitution of Ukraine dated June 28, 1996 (as amended). URL: https://zakon. rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80#Text [ukr.].

Administrative Judicial Code of Ukraine: Law of Ukraine dated July 6, 2005 No. 2747-IV (as amended by Law of Ukraine dated October 3, 2017 No. 2147-VIII). URL: http://zakon0.rada.gov.ua/laws/show/2747-15 [ukr.].

Resolution of the Supreme Court of November 11 2020, case № 191/1169/16-a (2-a/191/7/17). URL: https://reyestr.court.gov.ua/Review/927872974. Resolution of the Supreme Court of April 10 2019, case № 815/5133/16. URL: https://reyestr.court.gov.ua/Review/81046963 [ukr.].

Resolution of the Supreme Court dated November 28. 2019, case № 826/12172/18. URL: https://reyestr.court.gov.ua/Review/86000085 [ukr.].

Resolution of the Supreme Court dated April 14 2022, case № 160/12574/20. URL: https://reyestr.court.gov.ua/Review/103962990 [ukr.].

Boyko A. Problematic issues of replacing an improper party in administrative

proceedings when considering cases by an appellate instance. Word of the National School of Judges of Ukraine. No. 1 (10) 2015. Pp. 137–142 [ukr.].

Kucheruk N. Third parties in the administrative process: separate problems. Legal newspaper Online. October 24 2018. URL: https://yur-gazeta.com/publications/practice/sudova-praktika/treti-osobi-v-adminprocesi-okremi-problemi.html [ukr.].

Resolution of the Vinnytsia Appeal Administrative Court dated January 23. 2018, case №. 125/1103/17. URL: https://reyestr.court.gov.ua/Review/71825700 [ukr.].

Resolution of the Seventh Administrative Court of Appeal dated March 12. 2019, case №. 824/387/18-a. URL: https://reyestr.court.gov.ua/Review/80384429 [ukr.].

Resolution of the Seventh Administrative Court of Appeal dated May 14. 2021, case №. 240/19411/20. URL: https://reyestr.court.gov.ua/Review/96904754 [ukr.].

Resolution of the Seventh Administrative Court of Appeal dated November 18. 2021, case №. 600/2835/21-a. URL: https://reyestr.court.gov.ua/Review/80384429 [ukr.].