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63Information for citation:
Grubtsova, S. P. (2021) Differentiation of the Procedural Form in Administrative Legal Proceedings: Theoretical Aspects. European and Asian Law Review. 4 (1), 23-27. DOI: 10.34076/27821668_2021_4_1_23.
UDC 347.97/.99
BISAC LAW012000
DOI: 10.34076/27821668_2021_4_1_23
Research Article
DIFFERENTIATION OF THE PROCEDURAL FORM IN ADMINISTRATIVE LEGAL PROCEEDINGS: THEORETICAL ASPECTS
SVETLANA P. GRUBTSOVA
Ural State Law University ORCID ID: 0000-0001-7477-3741
The Russian judicial administrative procedural law has in a relatively short period of time been replenished with a number of special institutes devoted to independent types of proceedings for considering administrative cases or transforming existing types of proceedings according to new requirements adding features to the consideration of administrative cases. The goal of this study is to gain a theoretical understanding of the processes of differentiation of the procedural form in administrative proceedings and their assessment from the standpoint of their compliance with the goals and objectives of legal proceedings. The conclusion based on an analysis of the current legislation on administrative proceedings is that the differentiation of the procedural form does not always meet the specified goals and objectives, and therefore, as a result of the study, the author points out that the model of differentiation of the procedural form in administrative proceedings should be built depending on the protected substantive rights, the nature of material legal relations and with the orientation towards the optimization of legal institutions.
Key words: procedural form, differentiation, administrative proceedings, optimization of legal proceedings, specialization of legal regulation, administrative cases
Introduction
A procedural form is traditionally understood as the procedure for the consideration and resolution of legal cases by courts and regulated by provision of law. Posing the question of the procedural form of administrative proceedings under the current legal regulation is not accidental. An analysis shows that today the administrative court proceedings as an independent form of exercising judicial powers have met with a clear tendency towards differentiation of the procedural form. This has resulted in an increasing separation of regulatory prescriptions and the emergence of specialized legal regulation.
This study discusses the meaning of the procedural form's structure and differentiation, as well as the justification of the legislator's above approach in the regulation of administrative proceedings. The aim of the study is to theoretically comprehend the processes of differentiation of the procedural form in administrative proceedings and their assessment from the standpoint of compliance with the goals and objectives of legal proceedings. The author suggests that it is worth assessing the need to differentiate the procedural form in administrative proceedings through the prism of optimizing legal proceedings.
Copyright© 2021. The Authors. Published by Ural State Law University. This is an open access article distributed under the CC BY-NC 4.0. license http://creativecommons.org//license/by-nc/4.0/
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Materials and methods
In this study the following methods are used: general scientific (analysis, synthesis, comparison, descriptive, formal-logical) and special legal (formal-legal, comparative-legal, historical-legal, legal modeling).
Results
The results of the study are reflected in the conclusions of this work.
Discussion
As for the procedural form, it is worth noting that this category should only extend to those activities of the judicial authorities that are involved in the administration of justice, since a different approach would allow mixing the activities of the court in exercising its judiciary powers within the framework of legal proceedings and the activities of other jurisdictional and non-jurisdictional bodies (Gorshenev & Nedbailo, 1976: 7-25)1. During Soviet times, K. I. Komissarov proposed a profound concept of the civil procedural form, also relevant to present-day research, in which the content of the procedural form was determined through its qualitative characteristics: standardization, indisputability, consistency and universality (Komissarov, 1982: 50). In the modern interpretation, we can talk about the following features of the procedural form:
legislative regulation (regulation of the procedure for administering justice at the level of procedural legislation),
degree of detail (the rules of law regulate in detail the course, sequence of procedural actions and the content of relations arising between the court and other participants in the process),
universality of the procedural form (the procedure for considering and resolving cases established by law is applicable to various stages of the process and categories of cases arising from substantive relations),
imperativeness (the mandatory procedure for considering and resolving cases within the judicial process for all subjects of procedural legal relations and the presence of measures of responsibility and other negative consequences enshrined in legislation in case of violation, for example, the cancellation of a judicial act, a court fine) (Reshetnikova, 2019: 178; Zipunnikova, 2008: 8-11)2.
In addition, it is important to understand that the procedural form itself is 'determined by the substantive legal features of the object of the procedural legal relationship' (Yarkov, 2021: 149). This means that the procedural form is subject to modification depending on the nature of the dispute, the parties of the disputed material relationship and other criteria. Even though the procedural form is also a theoretical structure, its significance in the area of legal regulation should be obvious. Its goal is to ensure the implementation of the procedures regarding the correct and timely consideration and resolution of cases within jurisdiction of the courts and, as a result, the achievement of goals for protecting violated or disputed rights and the legitimate interests of persons.
In relation to the procedural form of administrative proceedings under the conditions of the current legal regulation, it seems appropriate to talk about the processes of its differentiation. So, since the Code of Administrative Procedure of the Russian Federation dated September 15, 2015 came into force, this type of legal procedure has become the basis for including new proceedings and categories of cases in its regulatory fabric, marking an expansion of the scope of legal regulation. In other words, the judicial administrative procedural law has in a relatively short period of time been replenished with a number of special institutes devoted to independent types of proceedings for considering administrative cases or transforming existing types of proceedings according to new requirements adding features to the consideration of administrative cases. Among them:
1 In legal science, there is another point of view, according to which the procedural form is characteristic not only for the jurisdictional law enforcement sphere, but also for all areas in which the rules of law regulate the actions of subjects of public relations. This concept is a broad understanding of the legal process (Gorshenev & Nedbailo, 1976).
2 Zipunnikova Yu. N. also separately highlights the signs of consistency and ritual in the procedural form. It is also interesting to note the principles of the civil procedural form, which the author highlights: expediency, rationality, simplicity, scientific character, discretionary nature.
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administrative cases that challenge acts containing clarifications of legislation and having regulatory properties (clause 1.1, part 2, article 1 of the Code of Administrative Procedure of the Russian Federation)3, administrative cases on awarding compensation for the violation of conditions of custodial detention and detention in a correctional facility (clause 2.1 of part 2 of article 1 of the Code of Administrative Procedure of the Russian Federation)42,
administrative cases on restricting access to an audiovisual service (clause 2.1, part 3, article 1 of the Code of Administrative Procedure of the Russian Federation)5,
administrative cases on the recognition of information posted in information and telecommunication networks, including the Internet, as the dissemination of information which is prohibited in the Russian Federation (clause 2.2, part 3, article 1 of the Code of Administrative Procedure of the Russian Federation)6, administrative cases on recognizing information materials as extremist (clause 2.3, part 3, article 1 of the Code of Administrative Procedure of the Russian Federation)7,
administrative cases on the protection of the interests of a minor or a person recognized in the prescribed manner as incapacitated in the event of the legal representative refuse to medical intervention necessary to save life (clause 9, part 3 of article 1 of the Code of Administrative Procedure of the Russian Federation)8, administrative cases of writ proceedings on claims for collecting mandatory payments and sanctions (part 3.1 of article 1 of the Code of Administrative Procedure of the Russian Federation)9.
The existing state of affairs in the judicial administrative procedural legislation seems to correlate with the processes of specialization of legal regulation in the form of differentiation identified in legal science (Petrov, 2015; Velikii, 2001; Slepchenko, 2011; Zipunnikova & Zipunnikova, 2014: 50-53).
The structure of law, according to S.S. Alekseev, is the direct result and expression of the process of specialization inherent in developed legal regulation. The essence of this process is that the 'division of labor' occurs and intensifies in law, as a result of which individual rules and their complexes are more and more differentiated in performing certain operations, their content is concretized; and at the same time, they are being integrated. According to its source, the specialization of law has deep socio-economic and political foundations. The complexity and multi-layered nature of social relations, the growing variety of social processes, the variety of tasks performed by law - all this predetermines the need for specialized, differentiated, concretized and integrated legal regulation (Alekseev, 1975 : 53). One of the forms of law specialization is the differentiation of legal regulation, i.e., its branching, splitting, and the acquisition by one branch or another of more and more specific and unique features (Alekseev, 1975: 53)10.
At the same time, the process of differentiation in law should not be an end in itself. The use of such tools will be rational only if it meets the goals of improving the procedure for the implementation of legal proceedings. In this regard, V. V. Yarkov states that Russian doctrine and legislation are gradually moving towards comprehending the need to differentiate judicial procedures, which is based on the nature of the material legal relationship, the purpose of the proceedings, the nature of evidence, the need to influence the behavior of the parties ... in order to optimize justice (Yarkov, 2012: 347-348).
It seems that building the differentiation of the procedural form in administrative proceedings at the level of new proceedings and categories of administrative cases in the court of first instance does not always meet the goals of such optimization (Gromoshina, 2010: 18)11. So, for example, from the point of view of the legal nature of public material legal relations and the nature of the claims, the need for differentiation and separate legal regulation do not meet, the rules governing administrative case proceedings
3 Introduced by Federal Law No. 18-FZ of February 15, 2016.
4 Introduced by Federal Law No. 18-FZ of February 15, 2016.
5 Introduced by Federal Law No. 87-FZ of May 1, 2017.
6 Introduced by Federal Law No. 451-FZ of November 28, 2018.
7 Introduced by Federal Law No. 451-FZ of November 28, 2018.
8 Introduced by Federal Law No. 223-FZ of June 28, 2016.
9 Introduced by Federal Law No. 103-FZ of April 05, 2016.
10 In addition, the specification of legal regulation is highlighted, i.e., its detailing, more and more detailed regulation of individual elements and aspects of these social relations and the integration of legal regulation, i.e. generalized regulation of that single, coinciding, which is characteristic of groups of social relations, their principles.
11 In order to consider the problems of differentiation in civil proceedings, N. A. Gromoshyna proposed an internal division of civil proceedings horizontally (differing proceedings at the level of first instance). This approach is applicable to administrative proceedings.
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on recognizing information posted in information and telecommunication networks, including the Internet, as the dissemination of information which is prohibited in the Russian Federation (Ch. 27.1 the Code of Administrative Procedure of the Russian Federation) and administrative cases on recognizing information materials as extremist (Ch. 27.2 the Code of Administrative Procedure of the Russian Federation). This is partly confirmed by the fact that the legislator for the most part uses blanket rules in the legal regulation of administrative case proceedings concerning the recognition of information materials as extremist, referring to the provisions of articles on administrative case proceedings on the recognition of information posted in information and telecommunication networks, including the Internet, as the dissemination of information which is prohibited in the Russian Federation. Thus, according to Part 1 of Art. 265.7 of the Code of Administrative Procedure of the Russian Federation the form and content of the administrative statement of claim on the recognition of information materials as extremist, filed in relation to materials posted on the information and telecommunications network 'Internet', must comply with the requirements specified in Art. 265.2 of the Code of Administrative Procedure of the Russian Federation12.
Such an approach could be called the optimal legal technique, however, in this case, often the reference goes not to the provisions of the general part of the procedural law, but to the special rules of the 'neighboring' chapter of the Code of Administrative Procedure of the Russian Federation, which clearly shows the minimal features in the nature of the analyzed proceedings and material legal relations from which such administrative cases arose. In addition, uncontroversial, but generally interesting from a scientific point of view, will be a unified consideration of the designated categories of administrative cases (Ch. 27.1, Ch. 27.2 of the Code of Administrative Procedure of the Russian Federation) in the sense of a special proceedings, one of the classic procedures of an indisputable nature in the civil law process, since, when disengaging from detailed legal prescriptions, we can observe qualitative characteristics that are essentially similar to cases of establishing legal facts (Chapter 28 of the Code of Civil Procedure of the Russian Federation) from the standpoint of the goals of the proceedings.
Despite the above criticism of legislative provisions, a positive example of the differentiation of the procedural form contributing to the optimization of legal proceedings is the introduction of nondiscriminatory procedures for the consideration of administrative cases - order proceedings in administrative proceedings (Chapter 11.1 of the Code of Civil Procedure of the Russian Federation) (Tsaregorodtseva, 2006; Papulova, 2013: 13-28)13. Thus, a characterization of the indisputability of claims by the claimant to collect mandatory payments and sanctions is the basis that reflects the necessary specialization of legal regulation, which helps to optimize the procedure for considering this category of administrative cases.
Conclusion
A model of differentiation of the procedural form in administrative proceedings should be built depending on the protected substantive rights, the nature of material legal relations and with the orientation towards the optimization of legal institutions, and not as a 'mechanical' insertion of new rules into the regulatory fabric of judicial administrative procedural law and duplication of legal prescriptions. Even the Constitutional Court of the Russian Federation, in its Resolution of May 11, 2017 No. 13-P, indicated 'when determining the discretion of the federal legislator in regulating relations ... to act in a lawful manner, that is, proceeding from the need for a reasonable and objectively justified differentiation of procedural forms of judicial protection ...'14. Only with this approach, the differentiation of the procedural form in administrative proceedings will correspond to the goals and objectives of administrative proceedings.
12 Similarly, the legal regulation is built in relation to the requirements for a court decision in this category of administrative cases - 'The operative part of a court decision in an administrative case on recognizing information materials as extremist posted on information and telecommunication networks, including the Internet, should contain information provided for in Article 265.5 of the Code of Administrative Procedure of the Russian Federation'.
13 Differentiation in the sense of optimizing legal proceedings was considered in procedural science by E. A. Tsaregorodtse-va. The differentiation of the procedural form as a way to accelerate civil procedures expresses the point of view of Z. A. Papulova.
14 Resolution of the Constitutional Court of the Russian Federation of May 11, 2017 No. 13-P 'In the case of checking the constitutionality of paragraph 1 of part three of Article 31 of the Criminal Procedure Code of the Russian Federation in connection with the request of the Leningrad Regional Court'.
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References
Alekseev, S. S. (1975) Struktura Sovetstkogo prava [The Structure of Soviet Law]. Moscow, Jurid. Lit. (in Russian).
Gorshenev, V. M. & Nedbailo, P. E. (eds.) (1976) Yuridicheskaya protsessual'naya forma: Teoriya i praktika [Legal Procedural Form: Theory and Practice]. Moscow, Yuridicheskaya literature. (in Russian).
Gromoshina, N. A. (2010) Differentsiatsiya i unifikatsiya v grazhdanskom sudoproizvodstve [Differentiation and Unification in Civil Proceedings]. Abstract of Doctor of Juridical Sciences' thesis. Kutafin Moscow State Law University (MSAL). (in Russian).
Komissarov, K. I. (1982) Posledovatel'no progressivnoe razvitie sovetskogo grazhdanskogo protsessual'nogo prava [Consistently Progressive Development of Soviet Civil Procedural Law]. Problems of Action and Improvement of Soviet Civil Procedural Legislation. Sverdlovsk. (in Russian).
Papulova, Z. A. (2013) Uskorennye formy rassmotreniya del v grazhdanskom sudoproizvodstve [Accelerated Forms of Consideration of Cases in Civil Proceedings]. Abstract of Ph. D. thesis. Ural State Law Academy. (in Russian).
Petrov, D. I. (2015) Differentsiatsiya i integratsiya strukturnykh obrazovanii sistemy rossiiskogo prava [Differentiation and Integration of Structural Formations of the System of Russian Law]. Abstract of Doctor of Juridical Sciences' thesis. Saratov State Law Academy. (in Russian).
Reshetnikova, I. V. (2019) Razmyshlyaya o sudoproizvodstve: Izbrannoe [Thinking on Legal Proceedings: Selected Papers]. Moscow, Statut. (in Russian).
Slepchenko, E. V. (2011) Grazhdanskoe sudoproizvodstvo. Problemy edinstva i differentsiatsii [Civil Proceedings: Problems of Unity and Differentiation]. Saint Petersburg, Yuridicheskii tsentr. (in Russian).
Tsaregorodtseva, E. A. (2006) Sposoby optimizatsii grazhdanskogo sudoproizvodstva [Ways to Optimize Civil Proceedings]. Abstract of Ph. D. thesis. Ural State Law Academy. (in Russian).
Velikii, D. P. (2001) Edinstvo i differentsiatsiya ugolovno-protsessual'noi formy: istoriya, sovremennost', perspektivy [Unity and Differentiation of the Criminal Procedural Form: History, Modernity, Prospects]. Abstract of Ph. D. thesis. Kutafin Moscow State Law University (MSAL). (in Russian).
Yarkov, V. V. (2012) Yuridicheskie fakty v tsivilisticheskom protsesse [Legal Facts in the Civil Process]. Moscow, Infotropic Media. (in Russian).
Yarkov, V. V. (ed.) (2021) Aktual'nye problemy grazhdanskogo i administrativnogo sudoproizvodstva [Actual Problems of Civil and Administrative Proceedings]. Moscow, Statute. (in Russian).
Zipunnikova, N. N. & Zipunnikova, Yu. N. (2014) Great Judicial Reform and Differentiation of the Civil Procedural Form (Dedicated to the Anniversary of the Judicial Statutes of 1864). Historical and Legal Problems: A New Perspective. (9-1), 50-53.
Zipunnikova, Yu. N. (2008) Principles of the Civil Procedural Form: to the Formulation of the Problem. Arbitration and Civil Procedure. (9), 8-11.
Information about the author
Svetlana P. Grubtsova - Candidate of Juridical Sciences, Associate Professor of the Civil Procedure Department, Ural State Law University, Yekaterinburg, Russia (21 Komsomolskaya str., Yekaterinburg, 620137, Russia; e-mail: [email protected]).
© S. P. Grubtsova, 2021
Date of Paper Receipt: May 21, 2021
Date of Paper Approval: June 24, 2021
Date of Paper Acceptance for Publishing: July 26, 2021
