The limits of procedural judgment of the administrative courts in the cases of return of the customs payments charged into the budget by mistake and/or in excess

Abstract

We have given estimation to the procedural judgment of the administrative courts in respect to the legal relations which appear due to the return from the state budget of the customs payments paid by mistake. The problems of administrative and procedural judgment are typical for all administrative and legal relations without any exceptions, the customs, administrative land, administrative economic, administrative delictual, fiscal, financial and ecologic ones.

The lack in the modern national administrative and administrative procedural law of a complete theory of administrative and procedural judgment, an activity duly revised by the practical activity of the subjects of public administration at last has formed the grounds for formation of the unequal judicial practice for administrative cases, where such judgment has been applied.

A principal meaning for the correct determination and correlation of the procedural judgment of administrative court with the administrative judgment of the subject of public administration is stipulated by the regulations of the Constitution of Ukraine – articles 6 and 19 . The article 162 of the Code of administrative proceeding of Ukraine defines the procedural judgment of the administrative court for the cases of the administrative jurisdiction, in respect to which the proceedings have been started in the administrative court of the first instance. At the same time by applying the procedural judgment, the administrative courts can intervene into the judgment of the subject of public administration (administrative judgment), which resolutions, action, lack of action have become a subject of revision in the court.

It has been defined that the facts of faulty definition and correlation of the procedural judgment of the administrative court with administrative judgment of the subject of the public administration have taken place in the cases about return of the customs payments credited into the budget by mistake and/or in excess.

We have specified the answers to the question on the possibility to satisfy by the administrative court the stated claims on charging the customs and other payment into the budget by mistake and/or in excess. First of all we have put emphasize on the regulations of the article 19 of the Constitution of Ukraine, which define the rules of activity of the subjects of public administration (in our situation – customs bodies) in the administrative legal (customs) relations.

It has been proven that the administrative legislation defines a certain, exhaustive list of the subjects empowered to return the customs payments credited in the budget by mistake or in excess. It is obvious that the administrative courts are not included by the legislations into the list of empowered subject and as a result have no powers for rendering a decision about the return of the customs payments credited in the budget by mistake or in excess.