Громошина Н.А. Исковое производство и производство по делам, возникающим из публичных правоотношений, с позиций правоприменения

Аннотация: The article deals with the place of the norms of law of civil procedure, regulating the order of proceedings on the cases arising from public legal relations. The substantive approach to the differentiation of the procedures in civil and arbitration procedure according to the peculiarities of law enforcement activities was chosen as a starting point of this article. Comparing activity of the court on enforcement of material law in adversary proceedings and the proceedings arising from public legal relations and analyzing generally excepted criteria of division of these kinds of proceedings, as well as characteristics of proceedings arising from public legal relations, the author comes to the conclusion that the above mentioned categories and characteristics “do not work,” because they both together as well as separately, may be typical for the cases, examined both in adversary and special proceedings. In other words these characteristics in theory or practice do not allow to define strictly according to what procedure the case is to be tried and solved. As a result additional argumentation of scientific points of view on inclusion of norms, regulating proceedings on cases arising from public legal relations into adversary proceedings was proposed. Out of categories of cases regarded by the law in force as the proceedings arising from public legal relations the author separates the cases on invalidation of normative legal acts because law enforcement activities in these cases has important special features. Here we do not have all stages of enforcement of the material law and the court interprets the norms of material law. After study of the cases on invalidation of normative legal acts through the prism of law enforcement and finding peculiarities of such law enforcement, the author came to some conclusions: First. The author supports the point of view that the procedure of the court examination of normative acts needs special regulation. Second. If other cases arising from public legal relations are of the same substance as actionable cases and they are to be classified in a group of special adversary proceedings, then cases on normocontrol substantively differ from adversary proceedings and thus have to have their own specific procedure delimited from adversary proceedings. Third. The norms, regulating examination of cases on normocontrol should not be classified in the same subgroup with other cases arising from public legal relations. In conclusion the author puts out a proposal to pass the decision of cases connected with contestable normative acts to the competence of constitutional (ustavny) courts .

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Abstract: The article deals with the place of the norms of law of civil procedure, regulating the order of proceedings on the cases arising from public legal relations. The substantive approach to the differentiation of the procedures in civil and arbitration procedure according to the peculiarities of law enforcement activities was chosen as a starting point of this article. Comparing activity of the court on enforcement of material law in adversary proceedings and the proceedings arising from public legal relations and analyzing generally excepted criteria of division of these kinds of proceedings, as well as characteristics of proceedings arising from public legal relations, the author comes to the conclusion that the above mentioned categories and characteristics “do not work,” because they both together as well as separately, may be typical for the cases, examined both in adversary and special proceedings. In other words these characteristics in theory or practice do not allow to define strictly according to what procedure the case is to be tried and solved. As a result additional argumentation of scientific points of view on inclusion of norms, regulating proceedings on cases arising from public legal relations into adversary proceedings was proposed. Out of categories of cases regarded by the law in force as the proceedings arising from public legal relations the author separates the cases on invalidation of normative legal acts because law enforcement activities in these cases has important special features. Here we do not have all stages of enforcement of the material law and the court interprets the norms of material law. After study of the cases on invalidation of normative legal acts through the prism of law enforcement and finding peculiarities of such law enforcement, the author came to some conclusions: First. The author supports the point of view that the procedure of the court examination of normative acts needs special regulation. Second. If other cases arising from public legal relations are of the same substance as actionable cases and they are to be classified in a group of special adversary proceedings, then cases on normocontrol substantively differ from adversary proceedings and thus have to have their own specific procedure delimited from adversary proceedings. Third. The norms, regulating examination of cases on normocontrol should not be classified in the same subgroup with other cases arising from public legal relations. In conclusion the author puts out a proposal to pass the decision of cases connected with contestable normative acts to the competence of constitutional (ustavny) courts .

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