A brief comparative analysis of the differences between civil and administrative proceedings

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Department of Law Enforcement and Anti-Corruption

Prince Vladimir the Great Educational and Scientific Institute of Law of Private Joint Stock Company «Higher education institution» Interregional Academy of Personnel Management»

A brief comparative analysis of the differences between civil and administrative proceedings

Mikheiev M.V.

lawyer, lecturer

In order to research the law, it is advisable to compare with civil proceedings with Administrative proceedings. In the legal literature, such comparisons are not common, because it is believed that civil proceedings include proceedings that involve a civil conflict, which consists of material aspects and it is resolved exclusively by civil law.

In general, in civil proceedings we can distinguish three grounds for its onset: civil conflict, civil dispute and civil tort [1].

As a general rule, civil proceedings are associated with the following features:

- they have a substantive nature; most civil cases are heard and decided in court;

- their procedural order of consideration and decision has certain features;

- tasks performed by the court in the consideration and decision have their own specifics;

- they have their own separate system of interrelated civil procedural rights and responsibilities;

- civil procedural actions performed by the subjects, which include the court and the participants in the process are specific;

- objects and subjects and the content of civil procedural relations is special;

- the subject of judicial activity, which stands out in each type of proceedings is special;

- general rules of civil jurisdiction differ from other types of proceedings.

In jurisprudence there are three types of proceedings: lawsuit, order and separate legal proceedings.

Most civil cases are heard in lawsuit litigation.

Characteristic features of litigation are the presence of two parties. In jurisprudence, they are defined as plaintiff and defendant. A dispute has arisen between these parties, which they cannot resolve on their own, so they go to court. In this case, the plaintiff is the first to raise the issue of resolving the legal dispute [3].

In contrast to administrative proceedings, civil lawsuits are initiated only in the presence of a claim. The dispute may exist for some time or may be resolved by alternative means of dispute resolution.

Civil litigation is characterized by the following features: the parties are equal in the process in contrast to administrative proceedings where one of the parties is a government agency or official who makes a decision; a mandatory feature is the presence of a dispute that is related to the property or other personal rights of the parties; the claim must be filed only with the court that decides the dispute, and in administrative proceedings, the decision may be made by government officials; the dispute resolution process is regulated in detail by the norms of the Civil Procedure Code of Ukraine.

In contract to the civil litigation administrative proceedings may be regulated by separate orders and instructions; the court decision is aimed at protecting the violated right, while in administrative proceedings in the case of a conflict between a citizen and the established rules of law, the decision is aimed at punishment [4].

Another type of civil proceedings is order proceedings. The order proceedings resolve the issue of protection of the right, which undoubtedly belongs to the applicant who filed the application, and the very fact of the offense is indisputable, and thus the guilt of the debtor is recognized as obvious. The basis of order proceedings, as well as lawsuits are substantive legal relations. The opening of order proceedings is carried out after the applicant submits an application to the court.

The characteristic of order proceedings are the following:

the applicant's claims are indisputable, to some extent this coincides with certain rules of administrative proceedings, but the case is heard on the basis of the relevant protocol;

the requirements are supported by relevant evidence, mainly written, which is attached to the application;

the court decides the order proceedings without summoning the applicant and the debtor, there are also certain parallels with the administrative proceedings, but again it should be noted that in administrative proceedings the issue of imposing a penalty is resolved;

order proceedings provide that the decision is made without a court hearing;

the judge for the execution of the decision on the case issues a special form of the court decision, which is called a court order [5].

The last type of civil proceedings is a separate proceeding. The main task of a separate proceeding is to confirm the presence or absence of legal facts that are of paramount importance for the protection of violated rights and interests of the person. In addition, separate proceedings are conducted in cases where it is impossible for a person to exercise personal non-property or property rights or to confirm the presence or absence of undisputed rights.

A separate proceeding differs in that during its implementation the following aspects can be distinguished:

- in this proceeding there is no dispute about the right;

- there are no parties during the proceedings;

- the initiation of the case occurs after the applicant submits an application to the court;

- there are restrictions on some procedural principles such as dispositiveness, adversarial proceedings and equality;

- procedural features have been established for consideration of these cases [6].

Thus, it can be stated that administrative proceedings differ from civil proceedings in the following criteria:

- in civil proceedings, the parties are equal in the process in contrast to administrative proceedings where one of the parties is a government agency or official who makes decisions and they make decisions on the basis of legislation;

- in civil proceedings, the presence of a dispute related to property or other personal rights of the parties is a mandatory feature, and in administrative proceedings, the presence of a conflict between a citizen and the rules established by the state;

- in civil proceedings, the claim should be submitted only to a court, and only it resolves the dispute, and in administrative proceedings, the decision may be made by government officials or persons who have the right to make appropriate decisions;

- in civil proceedings, the dispute resolution process is regulated in detail by the Civil Procedure Code of Ukraine, in administrative proceedings in addition to the Code of Administrative Offenses, the proceedings may be regulated by separate orders and instructions, which provide for the imposition of penalties for administrative offenses;

- in civil proceedings, the court decision is aimed at protecting the violated right, while in administrative proceedings in the case of a conflict between a citizen and the established rules of law, the decision is aimed for punishment;

- in civil proceedings the applicant's claims are indisputable, ie they cannot be changed in the process of consideration, which to some extent coincides with certain rules of administrative proceedings, but the case is heard on the basis of the relevant protocol;

- in civil proceedings, the requirements are supported by relevant evidence, mainly written, which is attached to the application. The evidence is also used in administrative proceedings, but they can be both oral and written;

- in civil proceedings, the court decides on order proceedings without summoning the applicant and the debtor. in this case there are certain parallels with the administrative proceedings, but it should be noted that the administrative proceedings address the issue of imposing a penalty;

It should be noted that hierarchy is present in both civil and administrative proceedings. In the judicial system, in accordance with the provisions of the Civil Procedure Code of Ukraine, there are proceedings of courts of first instance, appellate proceedings, cassation proceedings, proceedings on review of court decisions by the Supreme Court of Ukraine, as well as proceedings in connection with newly discovered circumstances. Such types of proceedings are also inherent in the administrative process. At the same time, in civil proceedings there are proceedings on appeals against decisions of arbitration courts and on the issuance of writs of execution for the enforcement of decisions of arbitration courts, but these proceedings are also inherent in the economic process.

civil administrative proceedings

References

1. Цивільне право. Конспект лекцій для студентів спеціальності 081 - «Право» денної та заочної форм навчання, Терещук Галина Андріївна. - Луцьк: ЛНТУ, 2017. - 267 с.

2. Цивільний процес (загальна частина): навч. посібник. - 2-е вид., доп. і перероб. / кол. авт.; кер. авт. кол. к.ю.н., доц. А.В. Коваленко. - Дніпро: Дніпроп. держ. ун-т внутр. справ; Ліра ЛТД, 2017. - 192 с.

3. Васильєва-Шаламова Ж. В., Гуменюк К. П. До питання про поняття сторін як основних учасників цивільного процесу. Актуальні проблеми держави і права (2014). № 74 С. 205-211.

4. Сучасні проблеми адміністративного права та процесу: тези доп. учасників Всеукр. наук.-практ. конф. (м. Харків, 30 черв. 2017 р.) / МВС України, Харків. нац. ун-т внутр. справ, каф. адмін.права і процесу ф-ту № 3.- Харків, 2017. - 295 с.

5. Васильев С.В. Порівняльний цивільний процес. Підручник. - К.: Алерта, 2015. - 352 с.

6. Пружанська Т.П. Особливість судового розгляду справ у різних провадженнях цивільного судочинства: порівняльно-правовий аспект. Право і суспільство № 3 частина 2 (2017). С. 75-78.

7. Electronic evidence in civil and administrative proceedings. Council of Europe, July 2019. ISBN 978-92-871-8929-5 URL: https://rm.coe.int/ guidelines-on-electronic-evidence-and-explanatory-memorandum/16809 68ab5.

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