Constitutive Features of Administrative Acts: Criticism and Analysis

Abstract

The relevance of the topic has been determined by the entry into force of the Law of Ukraine «On Administrative Procedure». The article is aimed at analyzing the approaches on understanding the features of an administrative act existing in Ukrainian legal doctrine and formulating recommendations oriented on building their universal system. Various methods of scientific cognition, including comparative and legal, systematic and structural, analysis, synthesis, and others constitute the research methodology. It makes it possible to systematically and consistently solve scientific problems, to study and compare the standpoints of scholars, the provisions of legal acts of the relevant countries, caselaw and to formulate the author’s conclusions. A number of systematic problems related to the incorrect understanding of the essence and features of administrative acts has been revealed in the research process. This situation, according to the author’s opinion, is largely related to the imperfection of legal definition of an administrative act, which was enshrined in the Law of Ukraine «On Administrative Procedure». Further analysis of the works of Ukrainian authors has demonstrated that in order to formulate relevant scientific provisions they in the vast majority use the results of Soviet authors. According to the author, such an approach is wrong; it blocks the development of modern, practically oriented concepts and conclusions. The author of the article has separately emphasized the fact that the features of an administrative act perform very important practical function. They help to solve comprehensive objectives primarily arising at the legal enforcement level. The author provides relevant detailed explanations on this matter. The article’s center of attention is the detailed presentation of the features of an administrative act. While performing this objective, the author has widely used the achievements of Western European authors, as well as refers to certain decisions of the judicial power to demonstrate the validity of the formulated conclusions and recommendations. As a result of the conducted research, the author comes to a sound conclusion that an administrative act should be characterized by the following features: 1) it represents a decision; 2) it is taken by an administrative agency; 3) it is oriented on the application / implementation of the norms of public (administrative) law; 4) it causes legal consequences in the form of establishing the rights or obligations for its addressee (regulatory nature); 5) it has a concrete and individual character; 6) it is characterized by an external orientation of the action. The conducted research allowed to draw the following conclusion:the features of an administrative act play a constitutive role by helping to solve various theoretical and practical problems. The features of an administrative act are universal in nature. It means that they do not depend (should not depend) on the national peculiarities of legal regulation and ideas about it. Ukrainian authors must be extremely responsible while formulating their own conclusions in regard to those categories and provisions having a supranational nature.