Differentiation of the Land Disputes Jurisdiction beetween Economic and Administrative Courts: the History of the Court Practice Formation

Abstract

The article is devoted to the analysis of the land disputes jurisdiction and the history of the judicial practice formation on this matter.

The aim of the research is to develop a theoretical basis for the definition of the land disputes jurisdiction in the context of the delimitation of the competence of Administrative Courts and Economic Courts. According to this target the article is addressed to determine the history of the mechanism for defining the land disputes jurisdiction and the main enforcement approaches at the level of the Supreme Court of Ukraine, the Higher Administrative Court of Ukraine, the Higher Economic Court of Ukraine and the Constitutional Court of Ukraine.

On the basis of the historical and the teleological approaches the stages of the procedure of defining the land disputes jurisdiction can be distinguished, such as a stage attempted to summarize the practice of the consideration of disputes as a criteria for determining jurisdiction; the trend of a separate definition of the competencies of each of the jurisdictions courts; the transition to public law and private law principles in order to define the land disputes jurisdiction.

Taking into account the urgent need to solve the problem of delimitation of the land disputes jurisdiction in judicial practice new approaches were proposed during the land reform. However, given the lack of sustainability in the positions of judges at the level of the higher courts an attempt to compile the practice arised.

Historical stages of the consolidation of the relevant mechanism are defined in the research. Main enforcement approaches at the level of the Supreme Court of Ukraine, Higher Administrative Court of Ukraine, the Higher Economic Court of Ukraine and the Constitutional Court of Ukraine are analized in the article.

The first attempt to implement a systematization of the practice to determinate the land disputes jurisdiction is characterized by an inadequate level of a distinctive mechanism detailization and therefore the problems arising before the beginning of this stage formation which have not been resolved.

Approaches on the delineation of the land disputes jurisdiction were further elaborated, but a significant disadvantage of the criteria for this distinction remained according to which it was impossible to form the mechanism of the land disputes jurisdiction determination. In particular, the evaluation aspect of private and public legal nature of the land disputes stipulated impossibility of the existence of the established court practice because the issues of the land disputes jurisdiction were solved in each particular case according to the judicial discretion.

Despite the lack of clear criteria to define the land disputes jurisdiction between the courts of administrative, economic and civil jurisdiction a trend toward a single definition of the competencies between the courts of each of the jurisdictions emerged at the level of the generalization of the judicial practice. This process began with the establishment of the economic competency of the courts to judge disputes over the land.

At the same time, the evaluation aspect of private and public legal nature of the land disputes causes the necessity to reform the Ukrainian legislation on the definition of specific and consistent mechanism for determining the land disputes jurisdiction.