Challenging normative legal acts - Administrative process

Challenging normative legal acts

Prior to the adoption of the US AIC in 2002, almost all cases of challenging normative legal acts were in the jurisdiction of courts of general jurisdiction. In the judgments of the Constitutional Court of the USA of 16.06.1998 No. 19-P and of 28.05.1999 No. 9-P, a legal position was formulated, according to which the provisions of Art. 125-127 The US Constitution does not exclude the possibility of exercising, including by arbitration courts, the compliance checks listed in § and b Part 2 of Art. 125 of the US Constitution, regulatory acts below the level of the federal law to another, more legally binding instrument, other than the US Constitution. These regulations were taken into account by the developers of the US agriculture.

In accordance with the APC of the United States, arbitration courts have jurisdiction over cases of challenging normative legal acts affecting the rights and legitimate interests of individuals in the field of entrepreneurial and other economic activities. The cases of challenging normative legal acts affecting the rights and legitimate interests of the applicant in the sphere of entrepreneurial and other economic activities were allowed only in cases where the federal law referred them to the competence of the arbitral tribunal. Such provisions are contained, in particular, in Art. 43 of the Federal Law No. 39-Φ3 of April 22, 1996 "On the Securities Market", item 2, Art. 138 of the Tax Code, art. 23 of Federal Law No. 135-Φ3 of July 26, 2006, "On Protection of Competition"; Art. 36 of the Federal Law of 08.12.2003 No. 165-FZ "On special protective, anti-dumping and countervailing measures for the import of goods."

Thus, as a criterion for determining the jurisdiction of the arbitral tribunal of the challenged normative legal acts, the legislator recognizes, first, the status of the applicant, and secondly, left regulation of entrepreneurial and other economic activities.

The subject of the proceedings is a legal dispute in the sphere of rulemaking. Judicial control in the sphere of rule-making (norm control) is an important element of judicial protection of subjects of arbitration procedural relations.

For the emergence of a legal conflict, the following conditions (processes and phenomena) are necessary: ​​

• a legal fact (a prerequisite for the emergence of a legal conflict situation);

• a legal conflict situation (object and subject of conflict, conflict legal relationship);

• incident (actions taken by one of the parties to defend their interests).

Such a conflict does not have to lead to negative consequences for the person applying, and there is no need for the person to use the normative legal act. It is sufficient that the applicant should disclose a discrepancy between the normative legal act and the basic law of the state, an international treaty that indicates a possible violation of the subjective right or the threat of a breach in the future. The condition for applying to a court is the existence of prerequisites for violation of the rights, freedoms and legitimate interests of the subject. At the same time, there is a presumption of lawfulness in respect of normative legal acts, therefore, the applicant's appeal to the court does not encourage the arbitral tribunal to apply interim measures in the course of the proceedings on contesting the normative act.

The arbitration court, in resolving a legal conflict, assesses whether the controversial normative act complies with a law or other normative legal act of great legal force, verifies:

• Subject composition of conflict legal relations;

• the presence of the authority of the official to adopt the impugned act;

• presence of signs of normality of the act;

• the fact of the actual or possible application of the impugned act;

• existence of a legal interest in the subject for appeal in its contestation.

The time for consideration of a case on challenging a normative legal act - not more than three months , from the date of receipt of the application to a court (part 1, article 194) is established, as compared with the terms of consideration of civil-law disputes. ).

thematic pictures

Also We Can Offer!

Other services that we offer

If you don’t see the necessary subject, paper type, or topic in our list of available services and examples, don’t worry! We have a number of other academic disciplines to suit the needs of anyone who visits this website looking for help.

How to ...

We made your life easier with putting together a big number of articles and guidelines on how to plan and write different types of assignments (Essay, Research Paper, Dissertation etc)