There are
different approaches to the classification of legal and administrative disputes.
In this case only a few investigators determine the species composition of the
full range of legal and administrative disputes. However, the most thoroughly developed this issue EB Luparev.
Initially,
the scientist is based on the species composition of objects of administrative
and legal dispute. In his view, individual material public administrative
rights can be classified based on the general classification of rights and
freedoms of man and citizen to: personal, political, economic, socio-cultural.
At the same protection in the administrative and legal dispute subjective
realization of public duties by its structure is similar to protection of
subjective rights of public management, with the only difference being that no
protected right, and the manner in which subjective public management
responsibilities face. Among them, too,
can be distinguished general and specific duties relating to the status of a
person.
In the
classification of public management rights of legal entities, which may include
the object of administrative and legal dispute, EB Lupari offers the following groups of public rights:
Responsibilities
of organizations in the field of public administration, as well as the rights
are specified depending on whether or not they have a special
administrative-legal status. In
this case, according to Luparev for public bodies - legal persons of their
rights at the same time may be considered as a duty.
Overall,
however, the main issue of classification of legal and administrative disputes
is the selection of material legally relevant criteria for their distribution.
Analyzing the content of existing procedural codes of the Republic of
Kazakhstan, one can conclude that the grounds for the classification of legal
and administrative disputes in matters of their jurisdiction in order or other
vessels are not always clearly establish such jurisdiction. This is evidenced
by numerous cases of return of the higher courts to clarify issues of
jurisdiction of administrative and legal disputes.
For the
first time suggested that the structure of the classification of administrative
and legal disputes in relation to set out in legislation and additional
criteria injectable researchers have repeatedly mentioned by the Russian
scientist, EB Luparev 1
He identifies several species and subspecies of disputes, which, with respect
to the Government of the Republic of Kazakhstan, as follows:
1. Disputes individuals and organizations with
public authorities, local authorities and other bodies vested with public
power:
a) disputes the citizens of Kazakhstan, foreign
citizens and stateless persons in connection with the violation of their rights
and freedoms, not connected with business and other economic activities;
b) disputes of individuals from institutions with
public authority in connection with the implementation of business and other
economic activities;
c) disputes
organizations with bodies with state-of power is not connected with business
and other economic activities;
d)
disputes organizations with bodies with public authority in connection with
business and other economic activities;
2. Intersystem
disputes involving bodies with public power:
a)
disputes between the state and regional executive authorities;
b)
disputes the executive branch of state level with each
c) legal
and administrative disputes regional executive bodies among themselves;
d)
disputes between the executive authorities and local authorities;
; d)
management disputes between local authorities;
e) in-group
disputes in state bodies and local self-government.
Current
legislation does not contain a uniform administrative procedure for settling
legal disputes on the competence, indicating in some cases, to conciliation,
but in others - on the court order. Responding
to a question, to which category disputes between local authorities involved in
dealing with local issues, most researchers came to the conclusion that the
substantive point of view they are not administrative law (although there are
other doctrinal point of view on this account), but in terms of procedure, the
procedure for resolving them is similar disputes with state authorities. However, from the viewpoint of
the majority of jurists, is a special category of disputes, which can be
defined as a municipal-law, - close, but not related to the category of legal
and administrative disputes.
3.
Administrative and procedural disputes:
a)
disputes in connection with the acts of an appeal court to impose
administrative penalties;
b)
disputes in connection with the appeal proceedings to public officials.
In the
classification of disputes in order to resolve them and the bodies of their
authorizing the above author suggests the following structure (again, with
regard to the specifics of the judicial system of Kazakhstan, for the
considered system includes author and disputes dealt with in the courts of
special jurisdiction:
1. Administrative and legal disputes settled in court:
a) legal
and administrative disputes resolved by the Constitutional Council of
Kazakhstan, at the request of the court declaring a law unconstitutional;
b)
administrative and legal disputes, to allow the administrative courts in the
order of the cases arising from administrative legal relations;
c) legal
and administrative disputes settled in the courts of general jurisdiction (if
the administrative court for the jurisdiction is not formed) in the order of
the cases arising from administrative legal relations as enshrined CPC, as well
as in appellate judgments in cases Administrative Offences, enshrined in
Articles 672-676 of the Administrative Code of Kazakhstan.
2. Administrative and legal disputes that are
solvable by administrative order: a) administrative and legal disputes are
settled in an alternative legal and administrative jurisdiction and b)
administrative and legal disputes that are solvable in the higher
administrative body or official.
3. Administrative and legal disputes are settled in conciliation. 2
If you
match both the classification, then, in our opinion, found their natural one
intersection, then there is controversy, assigned to one of the categories on
the criterion of the nature of relationships and the subject composition,
wholly or partially included in one of the categories of disputes on the bodies
of their resolution, and the order of authorization.
Detailing the above classification, it should be noted
that the disputes of individuals and organizations of persons with public
authorities, local authorities and other bodies with state-of authority,
includes, above all, the debate of citizens of Kazakhstan, foreign citizens and
stateless persons in the violation of their rights and freedoms, not connected
with business and other economic activities. Characteristics of this group
is their dispute differentiation depending on the status of the dispute with
the bodies with state-of power of the subject. For this category of disputes characterized by
"power relations" between participants in a material sense: the state
or municipal authorities are endowed with public authority but such individual
with respect to the opposing party has not. The substantive inequality in the
dispute have been exacerbated if a party to the argument in favor a foreign
citizen or stateless person, a person who does not have a stable political and
legal ties with the Republic of Kazakhstan. These arguments can be grouped according to general or
special status of foreign citizens and stateless persons:
Among the legal and administrative disputes,
non-citizens of the Republic of Kazakhstan in the business or other economic
activity, the following basic types:
Among the
disputes of individuals from institutions with public authority in connection
with the implementation of business and other economic activities, the
following are typical categories of disputes with the participation of citizens
in Business:
Disputes
organizations (excluding public authorities and local governments), not related
to the implementation of their entrepreneurial and other economic activities
include the following typical categories:
Thus, the
administrative and legal disputes represent a wide range of disputes, which can
be grouped into certain types and subtypes, based on the composition of the
parties to the dispute and / or subject matter.