TY - JOUR

T1 - Косвенный судебный контроль законности административных актов

AU - Васильева, Анна Федотовна

N1 - Васильева А.Ф. Косвенный судебный контроль законности административных актов // Вестник гражданского процесса. 2021. Т. 11. № 3. С. 259-292. // https://doi.org/10.24031/2226-0781-2021-11-3-259-292

PY - 2021/8/30

Y1 - 2021/8/30

N2 - Indirect judicial control over the legality of administrative acts within the framework of which the court considers civil law claim whilst evaluates the legality of an administrative act with a missed deadline of direct retrial, is one of the most pressing and unresolved problems of civil and administrative law interplay. The permissibility of indirect judicial control over legally binding administrative acts generates inter-branch conflicts, ‘divergent legal implications’ that have negative impact both on the citizen, when his conduct, permitted by an administrative procedure, entails civil legal sanctions, and on the administrative body, since the civil law practice is a means of “invasion” into its competence to assess the circumstances of the case and make decisions in a particular managerial situation1. The approach of not accepting the binding nature of an administrative act which has legal force, established in the Russian legal system for the court considering a civil case, is perceived as an axiom that does not require proof. However, looking at the problem of binding nature of an administrative act through the prism of the German concept of legal force of administrative acts allows us to question the validity and effectiveness of this axiom for modern civil and public circulation. In German legal system indirect control over the legality of legally binding administrative acts is not possible, such acts are considered obligatory for the courts, with the exception of acts that are null. Thus, the limits of indirect judicial control over the legality of administrative acts are placed in their legal force, and the very concept of the legal force of administrative acts must be built on the grounds of harmonization of the underlying interactive principles: legality, legal certainty, protection of trust.

AB - Indirect judicial control over the legality of administrative acts within the framework of which the court considers civil law claim whilst evaluates the legality of an administrative act with a missed deadline of direct retrial, is one of the most pressing and unresolved problems of civil and administrative law interplay. The permissibility of indirect judicial control over legally binding administrative acts generates inter-branch conflicts, ‘divergent legal implications’ that have negative impact both on the citizen, when his conduct, permitted by an administrative procedure, entails civil legal sanctions, and on the administrative body, since the civil law practice is a means of “invasion” into its competence to assess the circumstances of the case and make decisions in a particular managerial situation1. The approach of not accepting the binding nature of an administrative act which has legal force, established in the Russian legal system for the court considering a civil case, is perceived as an axiom that does not require proof. However, looking at the problem of binding nature of an administrative act through the prism of the German concept of legal force of administrative acts allows us to question the validity and effectiveness of this axiom for modern civil and public circulation. In German legal system indirect control over the legality of legally binding administrative acts is not possible, such acts are considered obligatory for the courts, with the exception of acts that are null. Thus, the limits of indirect judicial control over the legality of administrative acts are placed in their legal force, and the very concept of the legal force of administrative acts must be built on the grounds of harmonization of the underlying interactive principles: legality, legal certainty, protection of trust.

KW - косвенный судебный контроль; юридическая сила администра- тивного акта; «преюдициальность» административного акта; ничтожность административного акта; принцип защиты доверия

UR - https://www.mendeley.com/catalogue/65851a5f-b662-3650-935e-4f01e0a4d2cb/

U2 - 10.24031/2226-0781-2021-11-3-259-292

DO - 10.24031/2226-0781-2021-11-3-259-292

M3 - статья

VL - 11

SP - 259

EP - 292

JO - Вестник гражданского процесса

JF - Вестник гражданского процесса

SN - 2226-0781

IS - 3

ER -