Defendant in the administrative proceeding: concept, powers and peculiarities

Abstract

The essence of the subject of power authorities in the administrative proceeding has been investigated and classifi ed. We have come to the conclusion about the engagement in the administrative proceeding of the representatives of self-governing professions and other special bearers of public competence. In particular, it has been proved that the defendants in the administrative cases regarding the resolutions, actions, inactions concerning the access to the public information were the state institutions, public entities, legal persons of public and private law whose objective reality of execution of modern administrative legal proceeding, participation in the administrative process of the subjects different according to the form and content, witnesses the non-compliance of the concepts of «defendant», «subject of power» specifi ed by Code of Administrative legal proceeding of Ukraine with the practice of administrative process.

The specifi ed characteristics of the potential defendants in the administrative process, practice of functioning of the bearers of public powers, in our opinion, forms grounding to talk once again about the urgent character of replacement of the category «subject of power authorities», which is used in the Code of Administrative legal proceeding of Ukraine and other national legislation for the «subject of public administration». Having evaluated the content of these powers, it has been defi ned that they have different functional destination and depending on it, rights and obligations of the defendant can be unifi ed in the following main groups: 1) general rights and obligations which possess all persons without any exclusions, which participate in the case (art. 49, 73, 134 of the CALP of Ukraine); 2) rights and obligations of the defendant which guarantee for him the protection from the demands specifi ed in the statement of claim (part 2, 3 art. 51 of the CALP of Ukraine). Having analyzed the powers of the defendant in the administrative process, taking into consideration the wide range of the cases of achievement of legal personality of the defendant by the non-subjects of power authorities, we are convinced that in order to create equal possibilities for the defense of the subjective rights, liberties and interests, it is reasonable to stipulate in the Code of Administrative legal proce eding of Ukraine the procedural rights of the defendant regarding application by him of the other means of defence of the defendant rights (in particular, to present the administrative counter-claim) and stipulate the obligations for the plaintiff — subject of power authorities of presenting the proves and personal participation in the court session.