Case Review - Administrative Process

Case Review

The proceedings in cases on the recognition of regulatory legal acts as inactive in full or in part are carried out by the courts of general jurisdiction according to the rules established in Ch. 24 of the CCP of the United States, taking into account both the general rules of the lawsuit proceedings and the specifics relating to proceedings in cases arising out of public relations defined in Ch. 23 of the CCP of the United States.

The application for challenging a normative legal act must comply with the requirements set forth in Art. 131 and 247, as well as Parts 5 and 6 of Art. 251 CCP of the United States.

In accordance with Art. 131 of the US CCP in the application for challenging the normative legal act, as in the statement of claim, must be indicated:

• the name of the court to which the application is submitted;

• what is the violation or threat of violation of the rights, freedoms or legitimate interests of the person and his requirements;

• the circumstances in which a citizen or organization bases his claims;

• list of documents attached to the application.

In addition, the application for challenging a normative legal act should contain additional data:

• the name of the body or official who adopted the challenged legal act;

• the name of the act and the date of its acceptance and registration;

• an indication of what rights and freedoms of a citizen or an indefinite circle of people are violated by this act or a part thereof;

• What is the violation or threat of violation of the rights and freedoms of the applicant.

In the decision of the Plenum of the Supreme Court of the United States of 29.11.2007 No. 48 "On the practice of courts considering cases of challenging regulatory legal acts in full or in part" it is clarified that the application must also indicate which normative legal act having great legal force does not correspond to the impugned act or its part (paragraph 7).

Only the prosecutor does not need to specify in the application, whose rights and freedoms are violated by the impugned act, as his actions are based on the competence defined by the Federal Law "On the Procuracy of the United States".

The application must be enclosed:

• A copy of the contested act, indicating which media and when this act was published;

• A copy of the application;

• receipt (other document) on payment of state duty;

• power of attorney or other document certifying the authority of the applicant's representative (Article 132, 251 of the RF Code of Civil Procedure).

In the event that the application does not meet the established requirements, or the dispute about the right is discerned from it, the judge leaves the statement without motion and provides a reasonable time to correct the deficiencies or clarifies the need registration of the statement of claim (part 3 of article 247, article 136 of the Code of Civil Procedure of the United States). In case of non-judgments, or if the challenged legal act is not normative, the judge returns the application to the applicant (Article 132, part 3, Article 247 of the RF Code of Civil Procedure).

The general rules of the proceedings, applied by virtue of Part 1 of Art. 246 of the CCP of the United States when considering cases arising from public relations, provide grounds for refusal to accept the statement of claim for consideration and the grounds for termination of proceedings in the case.

The judge refuses to accept the application in accordance with π. 1 part 1 tbsp. 134 and part 8 of Art. 251 of the CCP of the United States in cases where:

• The application is not under the jurisdiction of the court of general jurisdiction, as it is subject to review and resolution in a different legal procedure;

• In the application of a citizen or organization, a regulatory legal act is contested in whole or in part, obviously not affecting their rights and freedoms, if this circumstance is a necessary condition for the verification of an act or part thereof in the manner provided in Ch. 24 of the Code of Civil Procedure of the United States;

• The application is filed in defense of the rights and freedoms of another person by a person to whom such rights are not provided by law;

• The draft law is challenged in the application, as it does not infringe on anyone's rights;

• The application disputes an invalid regulatory legal act or a part thereof (including an act that has not entered into force, canceled by a body or an official who published it, lost force in connection with the limitation of its operation by the time frame specified in the act itself, and also formally not canceled, but in fact not acting due to the publication of a later act);

• there is a valid court decision that verified the legality of the same normative legal act or the same part of it;

• The application disputes the content of that part of the normative legal act, which verbatim reproduces the provisions of another normative legal act, the demand for challenging which is not under the jurisdiction of the court of general jurisdiction.

Submitting an application to a court does not suspend the operation of the challenged normative legal act (part 7, article 251 of the RF Code of Civil Procedure).

If, in challenging a normative legal act, the form of application to a court is incorrectly chosen (it is formalized as a claim), but all other requirements established by the civil procedural law for applying to the court with a statement on cases of invalidating regulatory legal acts in full or in part , the judge must accept this application for his own proceedings and consider the case on the merits in accordance with the procedure established in Ch. 24 GIC United States. The normative basis of such a decision is the provisions of Part 1 of Art. 246 of the CCP of the United States, according to which cases arising from public relations are considered and resolved according to the general rules of the suit with specified features.

Cases about challenging normative legal acts are considered by judges of courts of general jurisdiction, unlike arbitration courts, alone.

The application is considered by the court within a month, and the Supreme Court - within three months from the day of its submission.

Persons applying to the court with a statement, representatives of the state authority, local government or official who adopted the challenged normative legal act, are notified of the time and place of the court session and participate in the consideration of the case. Depending on the circumstances of the case, the court may consider the application in the absence of any of the interested persons notified of the time and place of the court session.

The applicant can refuse his claim, such a refusal by law is not prohibited. But the proceedings in this case do not stop. In turn, the body or official who accepted the impugned act may recognize the applicant's claims. But this recognition of the requirement for the court is optional. By virtue of the law, the court, having accepted the case for consideration, must, regardless of the applicant's desire to resolve the issue of compliance of the impugned act with a federal law or other normative legal act having great legal force. In this case, there are rules on the normative control assigned to the court.

The verification of the legality of a normative legal act involves, first of all, an assessment of the contents of the contested provisions for compliance with legal provisions contained in regulatory legal acts of greater legal force. This means that the content of the contested legal rule should essentially follow from the legal norm established by a higher normative legal act.

However, the court's assessment of only the content of the contested normative legal act is not enough. The current legislation also regulates the form and type of the normative legal act, the procedure for its adoption and signing, the procedure for its publication and implementation. The court is obliged to verify all these points. "The legality of a normative legal act can be evaluated by a court in terms of observing the so-called formal requirements for normative acts ... In this case, the violation of these formal requirements, as a rule, entails the legal nullity of regulations and the inadmissibility of their further verification within the framework of the existing procedure for litigation " .

If the court recognizes that the contested act is not in conflict with a federal law or other normative legal act having greater legal force, then it takes a decision to refuse the application. If, however, the court finds that the challenged normative legal act is fully or partially inconsistent with a federal law or other normative legal act of great legal force, then it recognizes a normative legal act as inactive fully or in part. It is necessary to bear in mind that an act signed by an unauthorized person is also recognized as invalid.

Having established that a normative legal act contradicts a federal law or other normative legal act having great legal force, the court recognizes the normative legal act as inoperative from the day of the decision or other time specified by the court. The Plenum of the Supreme Court of the USA in its resolution of 20.01.2003 No. 2 "On some issues that arose in connection with the adoption and enactment of the Code of Civil Procedure of the United States" explained that the time from which the normative legal act is recognized as inoperative should be specified in the operative part of the court decision.

In accordance with the principle of separation of powers, legislative and judicial authorities can not interfere in the competence of each other, therefore the court can not oblige the legislative body of the subject of the United States to amend, supplement, adopt or bring a law in compliance with another statutory act having greater legal force. That is why, in the operative part of the decision, the court only recognizes the impugned normative legal act as invalid in full or in part, but does not oblige the relevant body to bring it into conformity with a specific other act, although in the proceedings it is allowed (for example, invalidation of the transaction).

Recognizing an act as invalid entails the loss of the force of this normative legal act or part thereof, as well as of other normative legal acts based on it or reproducing its content.

The decision of the court on the application for challenging the normative legal act comes into force according to the general rules established in Art. 209 of the Code of Civil Procedure of the United States:

• at the end of the period for appeal,

• If the court decision was appealed, but not reversed, then after the court has considered the appeal,

• If the decision of the court of appeal has been revoked or amended and a new decision has been taken, then it comes into force immediately.

After the entry into force of a court decision on the recognition of a regulatory legal act as invalid, or a communication on such a decision must be published in that printed publication in which the contested normative legal act was officially published. If this printed publication has ceased to exist, the said decision or communication is published in another printed publication in which relevant regulatory legal acts are published.

It should be emphasized that the court's decision to recognize a normative legal act as inactive can not be canceled by repeating it, by adopting the same normative legal act. This means:

• impossibility of accepting the identical act;

• the impossibility of adopting a normative legal act having the same content as was recognized by the court as inactive.

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