Right to appeal - Administrative process

Right to appeal

Citizens, legal entities and individual entrepreneurs can apply to the arbitration court to declare invalid a normative legal act adopted by a state body, an official who violated their rights and legal interests in the field of entrepreneurial and other economic activities. Moreover, the cases indicated in π. 1 part 1 tbsp. 29 of the US Arbitration Court, the arbitration court considers, regardless of who the applicants are (Part 2, Article 29 of the APC RF), i.e. the subjective composition of persons applying for protection is not taken into account if the economic direction of the case is present.

A huge amount of authority in terms of ensuring the rights, freedoms and legal interests of citizens against violations or threats of violation by administrative bodies is exercised by the prosecutor. This is ensured, on the one hand, by the fulfillment of the duties provided for in Clause 2, Art. 1, item 3 of Art. 22, art. 23, 28 of the Federal Law "On the Prosecutor's Office of the United States", and on the other - the status of the prosecutor in the arbitration process. According to Art. 40 APC of the USA the prosecutor in the arbitration process is attributed to the persons participating in the case. But still his rights are somewhat wider than those of the rest of the category of persons listed in this legal norm. So, the prosecutor can participate in the case of challenging a normative legal act in two forms:

• initiate the initiation of administrative proceedings;

• give an opinion (legal assessment after examining all the evidence in the case).

The right to appeal the application for challenging normative legal acts, the verification of which is assigned to the competence of arbitration courts, the prosecutor has, by virtue of cl. 1 p. 52 of the US agroindustrial complex. The prosecutor who applies to the court enjoys the procedural rights of the applicant. At the same time, the prosecutor does not have the duty to specify which law and which rights and freedoms guaranteed by the US Constitution or other normative legal acts are violated by the contested act, as is the case with a legal entity or individual entrepreneur who must prove the violation even potential) of their rights and freedoms. In the event that the prosecutor gives an opinion on the case, he can enter the case at any stage of the process.

Public authorities and local authorities, as well as other bodies, may also act in defense of public interests. Thus, one of the guarantees of local self-government is the right to judicial protection granted by Art. 133 of the US Constitution.

The application for the recognition of a normative legal act as inactive must comply with the requirements of Art. 125 and 193 of the APC of the USA, i.e. contain:

• the name of the state authority, local government, other body, official who adopted the challenged normative legal act;

• location of the body or official;

• the full and accurate title of the act;

• number of the contested act;

• the date of its adoption, registration, publication, entry into force;

• the rights and legitimate interests of the applicant, which, in his opinion, are actually violated or may be violated by the challenged normative act or its separate provisions;

• the name of a normative legal act having a great legal effect, which, in the opinion of the applicant, is in conflict with the contested normative act or its separate provisions;

• The applicant's claims to recognize the impugned act as invalid.

In the application, in addition, the list of attached documents is indicated. The application is accompanied by:

• the text of the contested normative act;

• the text of the normative legal act to which the contested act contradicts;

• documents confirming the direction of copies of applications and documents attached to the persons participating in the case;

• a document confirming the payment of the state fee or the right to receive a privilege to pay the state fee, or an application for granting a deferment, installments, reducing the state fee;

• documents confirming the circumstances on which the applicant bases his claims;

• copies of the certificate of state registration as a legal entity or individual entrepreneur;

• power of attorney and other documents confirming the authority to sign the application (Article 126 of the APC RF).

The state fee is paid in the amount determined by Art. 333.21 NC USA. At present, when submitting applications for the recognition of a normative legal act as inactive, individuals pay a state fee of 200 rubles, an organization - 2000 rubles.

Cases of challenging a normative legal act are considered by the collegial staff of judges within a period not exceeding three months from the date of receipt of the application to the court, including the time for preparing the case for trial and making a decision on it (p. 1 item 194 of the agrarian and industrial complex of the United States).

The arbitration court plays more than an active role , when considering cases of this category, than when considering cases of the proceedings, creating favorable conditions for the judicial protection of violated rights. The Arbitration Court may find it obligatory for the representatives of relevant state bodies and officials who accepted the challenged normative legal act to be summoned to the court session, summon them to the hearing to give explanations, impose a fine for disobedience.

An important feature of hearing cases in the course of administrative proceedings is the imposition of burden of proof on the body or person who adopted this act. Powerful subjects are obliged to prove compliance of the impugned normative legal act with another normative legal act having greater legal force, the availability of authority for its adoption, as well as indicate the circumstances that served as the basis for the adoption of the act.

Thus, in the APC of the US procedural guarantees are secured for effective protection of the rights of applicants and the legal inequality of the parties that is inherent in the very nature of the conflict arising from public relations is leveled.

The arbitration court considering the application for the recognition of a normative legal act as inactive, initially should check the following facts:

• when and where the contested normative legal act was published;

• Did it come into force;

• Is it canceled by the person who issued it?

• Has it lost its force due to its limited duration or in connection with the publication of a later act, without being formally revoked.

At the same time, it is necessary to take into account the legal position of the Constitutional Court of the United States that when examining a case on challenging a normative legal act, arbitration courts may not limit themselves to a formal determination that the procedure for and the form of acceptance of the act complained of are respected (or not met). The court establishes the fact of violation of the rights and interests of citizens or legal persons protected by law by an unpublished normative act and, in each specific case, effectively ensures the effective restoration of violated rights.

The legislator stressed that a legal act can be considered normative not only if it contains meaningful signs of a normative act, but also on condition that its form and procedure of publication are observed. Proceeding from this, a normative legal act, unlike a non-normative one, must be issued in accordance with the procedure established by law, which is one of the important formal features of a normative legal act.

In determining the circumstances listed above, the judge must take into account that some acts already or still can not produce legal consequences, as well as entail any violations of the rights protected by law and the legitimate interests of the individual entrepreneur or legal entity in the field of entrepreneurial and other economic activities. If, before the arbitration court passes a decision on the application for challenging a normative legal act, this act was abolished in accordance with the established procedure or its operation ceased, then the proceedings in the case are subject to termination on the basis of Cl. 1 Part 1, Art. 150 APC USA.

The proceedings in the case are subject to termination also in the event that there is a legally binding decision of the arbitration court or the court of general jurisdiction that has verified this act for compliance with a legal act that has great legal force.

At the same time, arbitration courts, as well as courts of general jurisdiction, should take into account the position of the Constitutional Court of the United States, according to which if a violation of the applicant's rights and freedoms challenged by a normative legal act, guaranteed by the US Constitution, case, when this normative legal act is recognized as invalid by a decision of the body that adopted it or an official or in the case when the validity period of this normative legal act has expired.

The right to judicial protection, guaranteed in art. 46 of the US Constitution, implies full, timely and effective restoration of rights through justice, as well as inadmissibility of substitution of judicial protection by another procedure and arbitrary termination of proceedings initiated. Consequently, the loss of power by a normative legal act challenged by an arbitration court does not in itself constitute grounds for termination of proceedings.

The subject of evidence for this category of cases involves the establishment of the following circumstances (Figure 4.10):

• violation of the applicant's rights and legal interests in the field of entrepreneurial and other economic activities

• the normative nature of the challenged legal act (whether the act contains legal norms that determine the rules of conduct of subjects of regulated relations);

• powers of the state authority, local government or official to adopt the impugned normative legal act;

• compliance with the procedure for the adoption of a regulatory legal act (whether the regulatory act passed state registration, meets the established requirements);

• Compliance of the challenged normative legal act with the federal constitutional law, federal law and other normative legal act having great legal force.

If the arbitration court determines that the impugned act was adopted with violation of authority, then it has the right to recognize it as invalid without examining other circumstances, including. without checking its contents.

When considering cases of this category, the arbitration court is not bound by the applicant's arguments and verifies the legality of the challenged normative legal act in full. Article 194 of the APC of the United States establishes the right of the court, not limited to the reasons given by the applicant for the recognition of a normative legal act as inactive, to independently establish the circumstances that indicate its illegality. It should be borne in mind that this rule determines the scope of legal verification of the subject of judicial review, and not the subject of judicial review. However, this does not mean that in the case of challenging any part of a normative legal act, the court, having established the circumstances indicating the illegality of the entire normative act or other provisions of the act, has the right to go beyond the scope of the consideration, recognizing all illegal provisions as inactive. Typical is the following example: when reviewing the application for invalidating clauses 1.1 and 2.2 of the Mayor's decision by the court of first instance, it was established that the decision was issued by an unauthorized person - the mayor of the city, while establishing the procedure for owning, using and disposing of city property and land sites within the boundaries of the city refers to the powers of the city Duma, in connection with which the decision of the court of first instance, the said decision was declared inoperative in full.

By decision of the Federal Antimonopoly Service, the court decision was changed: recognized as inoperative clauses 1.1 and 2.2 of the contested provision and Appendix No. 1 to it, i.e. the resolutive part of the decision is brought into line with the scope of the claimed claims in the case.

The subject of evidence in challenging a normative legal act

Fig. 4.10. The subject of evidence in challenging a normative legal act

Refusal of the applicant from his claim or the recognition of these claims by the relevant authorities of the state, officials who adopted the challenged normative legal act, is not an obstacle for the consideration of the case on the merits. Such powers of the court are conditioned by the fact that the normative legal act establishes the rules of conduct that are mandatory for an indefinite circle of persons, calculated for repeated application and operating regardless of whether the specific legal relations provided by this act have ceased.

The difficulty in establishing the legal nature of the impugned act is due to the fact that the acts often contain provisions both normative and non-normative. These are mixed administrative acts. Individual prescriptions in this kind of acts, as a rule, play a supporting role and are called upon to ensure the implementation of administrative and legal norms. Mixed acts are issued in the forms prescribed for regulatory legal acts, and must be disputed in the order of Ch. 23 APC USA.

If the arbitration court determines that the impugned act contains provisions of a non-normative (individual) nature and the case of challenging such an act is attributed to its jurisdiction, then it continues to consider the case of challenging such an act in the order of Ch. 24 APC USA in the same composition of the court.

In accordance with Part 1 of Art. 192 APC of the United States the basis for applying to an arbitration court is a violation of the rights and legitimate interests of an individual entrepreneur or legal entity in the field of entrepreneurial and other economic activities. Therefore, the applicant is obliged to prove violation of the disputed act of his rights and legitimate interests. The applicant's arguments must be documented. A specific list of documents is formed on the basis of the subject matter of the dispute: financial documents on the increase of costs, leases of municipal property, tax returns, etc.

Absence of circumstances indicative of a violation of the rights and legal interests of the applicant or of unlawful assignment of any obligations to the applicant, or creating obstacles to the performance of entrepreneurial or other economic activities, or their lack of evidence is grounds for refusing to meet the claims.

The challenged normative legal act or a part thereof is subject to verification for compliance not only with the normative legal act that is indicated by the applicant, but also with other acts regulating these relations and having greater legal force, which are not specified in the application.

The arbitration court may recognize the impugned normative legal act as being inoperative in full or in a certain part thereof, any item or specific proposal, if they contradict another act of great legal force.

The decision on the case of contesting a normative legal act must comply with the general requirements for judicial decisions. In the operative part of the decision, the refusal to satisfy the claimed claim or to recognize the impugned act as having no effect in full or in part (in which part, paragraph, etc.) should be indicated. It is necessary to specify the name of the normative legal act, the number, the date of adoption and the name of the body or person who adopted the impugned act, which is recognized as inoperative, and also indicate the same data of the act to which the contested act corresponds or does not comply.

If the normative legal act is declared invalid due to the lack of authority of the body or person to adopt the impugned act, the arbitral tribunal points out in the operative part that it does not comply with its normative legal act fixing the respective powers of the body or person. In the event that the claim for challenging a normative legal act that was canceled in the prescribed manner or whose action was terminated before the decision was rendered, the arbitral tribunal in addition to the general information listed in the first paragraph of this clause in the operative part indicates the inconsistency of the impugned act or its separate provisions with the normative a legal act that was of great legal force during the period of validity of the contested act.

The decision of the arbitration court in the case of challenging the normative legal act comes into force immediately after its adoption, and those provisions that the court found invalid, can not be applied from the moment of making the decision (Article 195 of the APC RF). This day is considered not the day of announcement of the resolution part, but the production of the final decision. A normative legal act or certain of its provisions recognized as inactive shall not be applicable from the moment the judgment enters into legal force. The obligation of the body or the person who adopted the impugned act is to bring the inoperative provisions into line with the law or other normative legal act having great legal force (Article 195 of the Code of Administrative Procedure of the United States).

The decision of the arbitration court in the case of challenging the normative legal act is not subject to appeal, , which ensures the shortening of the terms of the illegal regulatory legal act (its part) and accelerated protection of rights and freedoms of an unlimited circle of persons.

However, the decision of the arbitration court in the case of challenging the normative legal act can be appealed in the general order to the court of cassation instance within a month from the date of entry into legal force, except for the decision of the Supreme Arbitration Court of the United States.

Copies of the judgment must be sent to the persons participating in the case within 10 days from the date of this decision.

The decision of the arbitration court that entered into legal force on the case of challenging the normative legal act is sent by the arbitration court to official publications of state bodies, local self-government bodies, other bodies where the contested act was published, and is subject to immediate publication by the indicated editions. This decision should be published in the "Bulletin of the Supreme Arbitration Court of the United States", and, if necessary, in other publications (Part 2, Article 196 of the APC).

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