FICTITIOUS ADMINISTRATIVE ACTS: PROSPECTS OF REGULATION IN THE COUNTRIES OF CENTRAL ASIA

Abstract

The Central Asian countries – Kazakhstan (twice: in 2000, 2015–2016), Kyrgyzstan (twice: in 2004, 2015), Tajikistan (in 2007), and Uzbekistan (twice: in 2007, 2015–2016) – are trying to implement laws on administrative procedure into their national legal systems. Laws on administrative procedure are а tool of western philosophy, an institute of European administrative law of the European understanding of open government and effective administrative regulation, approaches to which the countries of the region have begun to develop relatively recently. Instead of a formal pursuing the adoption of laws on administrative procedure, it is more important to find answers to the countries’ readiness to accept laws on administrative procedure into their existing social, political and economic realities, including the peculiarities of the legal systems. The research notes а lack of two key concepts of the laws on administrative procedure – the concept of administrative procedures as such and the concept of administrative acts. It is analyzed the possibility of implementation of one of the variants of the administrative decision adopted as the result of a fictitious approval (Genehmigungsfiktion). Today, in Central Asia а truncated model of fictitious approval is in operation – the principle “silence gives consent” – within the sphere of licensing procedures of entrepreneurship: “if the public authority does not submit within the established deadlines а motivated refusal or authorization document, such а document is considered to be issued (i. e. the procedure is deemed to be completed)”. The article provides its comparative legal analysis of the application of fictitious approval in the countries of Central Asia.

The author arrives at а number of conclusions:

− administrative “silence” can be used by the legislator as a fictitious administrative act (tacit consent);

− administrative “silence” is а form of an administrative act, but only on the basis of legislative clauses;

− objective limitations of the use of administrative “silence” are shown;

− different types of inactivity are classified for its effective objection, the position of the term in the system of such definitions as “administrative silence”, “delay in the adoption of an administrative act”.