In this publication the explanation about judicial protection of legitimate rights of citizens and legal entities on the earth is given.
About judicial protection of legitimate rights of citizens and legal entities on the earth
By article 116 of the Land code of Ukraine (ZK) it is defined that citizens and legal entities receive an ownership right and a right of use of the land lots from lands state or municipal sobstvennostipo to the decision of executive authorities or local government bodies and state authorities of privatization of rather land lots on which objects, privatizeable, within their powers defined by this Code are located.
The broken rights of land users are subject to protection by the ways provided by article 152 ZK with obligatory observance of standards of the current legislation. According to instructions of the specified norm, protection of the rights of citizens and legal entities on the land lots is carried out, in particular, by recognition void decisions of executive authorities or local government bodies that korrespondiruetsya with requirements of a part 2 of article 55 of the Constitution of Ukraine and a part 10 of article 59 of the Law of Ukraine About local self-government in Ukraine.
Specified standard of the Constitution of Ukraine, guaranteeing to everyone right to the appeal in court of decisions, actions or a divergence of public authorities, local self-government, official and officials, became the constitutional basis for introduction in the country of administrative justice and definition of a problem of the administrative legal proceedings consisting in protection of the rights, freedoms and interests of individuals, the rights and interests of legal entities in the sphere of public legal relations from violations from public authorities, local government bodies, their official and officials.
Thus, the conclusion is logical that behind protection of the land entitlements broken by local government body, it is necessary for citizens and legal entities to address in administrative court.
However in practice everything appeared much more difficult. Not a secret that imperfection of the ground legislation generated and generates many problems in right application. The highest degrees of jurisdiction – the Supreme Court of Ukraine (VSU) and the Supreme economic court of Ukraine (VHSU) – for the purpose of elimination of shortcomings of a work of the courts by consideration of the ground affairs, identical application of norms of substantive and procedural law constantly study court practice of the solution of disputes on protection of an ownership right on the earth and land use and the receivership proceeding connected with the ground relations. With confidence it is possible to tell that one of the topical issues needing continuous studying and an explanation, the question of determination of jurisdiction of separate categories of ground disputes is.
The resolution of Plenum of VSU was directed on the decision, in particular, this problem About practice of application by vessels of the ground legislation by consideration of civil cases to No. 7 from April 16, 2004 in which, proceeding from provisions of articles 8, 124 of the Constitution, articles 26, 30, 87 – 90, 97, 100, 102, 118, 123, 128, 143 – 146, 149, 151, 153 – 158, 161, 210, 212 ZK, articles 24 of the Code of civil procedure of Ukraine, article 12 of the Economic procedural code of Ukraine (HPK), VSU the list of the ground disputes considered by vessels of Ukraine is defined, disputes concern them:
- about granting the land lot for maintaining (creation) of a country (farmer) economy in default in it the decision regional, city (in which administrative submission there is an area) council;
- about recognition illegal decisions of village, settlement, city council on refusal to transfer to the citizen in private ownership the land lot provided to it for maintaining a personal part-time farm, construction and service of a house and economic buildings (personal plot), gardenings, country and garage construction;
- about protection and restoration of the broken rights of owners of the land lots and land users, removal of obstacles in use of the land lots;
- about reduction of six-year term in the presence of valid, the reasons throughout which citizens are forbidden to alienate the land lot which has been transferred to the possession for maintaining a country (farmer) economy;
- about the termination of a right of use by the land lot or ownership rights on it in the cases provided by ZK;
- about withdrawal (repayment) of the land lots according to statements of the relevant councils, the enterprises, establishments and the organizations;
- about compensation to owners of land and land users of a damage and reduction of the land lot in a condition suitable for its proper use, the enterprises, establishments, the organizations which were carrying out prospecting works;
- about the solution of disputes between owners of the houses located on adjacent (next) sites, concerning removal of obstacles in using the last;
- about definition of an order of the order by the land lot and its uses by citizens which a house, economic buildings and constructions belong by the right of the general (joint or partial) to a property;
- about recognition void contracts of purchase and sale, donation, pledge, an exchange of the land lots;
- about return of autocratically busy sites, their reduction to a suitable condition for use, demolition of the buildings constructed on them and constructions;
- about the solution of ground dispute, according to certain ZK the competence, considered by executive authority or local government body with which decision the applicant disagrees;
- about the solution of the receivership proceeding connected with the ground relations, including on compensation of the damage caused by withdrawal (repayment) or temporary occupation of the land lots, restriction of the rights of owners of land, tenants and other land users, deterioration of lands or their reduction in unsuitable for use on a designated purpose a condition owing to the negative influence caused by activity of the enterprises, establishments, the organizations and citizens, or the harm caused by other wrongful actions, entailed damage, deterioration of lands or their reduction in unfitness;
- about the solution of disputes between persons of law of ownership in common on the earth and members of these legal entities (or their successors) about the right to a ground share, between gardening societies and their members, between members of such society and members of their families or other persons concerning use of the society of the land lot provided to the member and removal of obstacles in it;
- about refusal on sale of the land lot.
At the same time, VSU defined that delimitation between courts of law of jurisdiction of the receivership proceeding ground and connected with the ground relations occurs depending on subject structure of their participants. To the general vessels podvedomstvenny disputes in which at least one of the persons which are taking part in business, the citizen is, and economic – with participation of the enterprises, establishments, the organizations, other legal entities, and also the citizens who are carrying out an entrepreneurial activity without creation of the legal entity and in accordance with the established procedure of got the status of the subject of an entrepreneurial activity.
With coming into effect on September 1, 2005 the Code of administrative legal proceedings of Ukraine (KAS), proceeding from subject structure of participants of dispute, business on claims to local government bodies on the land questions courts began to consider by rules KAS as such disputes have all signs of the administrative business defined by point 1 of a part 1 of article 3 RE:.
It would seem, it is possible to put an end to it. However many discussions in judicial circles concerning delimitation of competence of administrative and economic courts caused acceptance at the end of 2006 of the Law of Ukraine About modification of some acts of Ukraine concerning determination of jurisdiction of affairs on questions of privatization and on corporate disputes. This Law made changes to article 12 HPK and district and administrative courts which should consider such disputes are excluded from jurisdiction of economic vessels of business on disputes on recognition void acts of the state and other authorities, but, during that moment yet didn’t begin the activity.
For settlement of this situation it was accepted, the weighed decision on possibility of continuation of consideration by economic vessels of the first and appeal instances prior to the beginning of activities of district and appeal administrative courts of affairs for disputes on recognition void acts of state authorities, proceeding from requirements of point 6 of the section V II Final and transitional provisions KAS and subject structure of participants of the judicial economic process defined by a part 1 of article 1 and a part 1 of article 21 HPK.
Nevertheless the problem of jurisdiction of disputes on recognition void acts of state authorities, in particular local government bodies on the land questions, isn’t settled by it.
On June 27, 2007 the presidium of VHSU sent to economic vessels recommendatory explanations About some questions of jurisdiction and jurisdiction of affairs to economic vessels under No. 04-5/120 (Recommendations). However, having familiarized with recommendations, it is possible to draw a conclusion that they are addressed to administrative courts as define the list of administrative affairs more likely and characterize subject structure of participants of such affairs.
At the same time, the part 3 of point 1 of article 39 of the Law of Ukraine About a sudoustroystvo of Ukraine to powers of the supreme specialized court referred granting to specialized courts of the lowest level of recommendatory explanations concerning legislation application concerning the solution of affairs of the corresponding judicial jurisdiction.
To a shined subject definition in Recommendations within the jurisdiction to economic vessels of disputes on recognition void acts of the state and other authorities, but only what don’t answer the legislation is interesting, break the rights and interests of the enterprises protected by the law, the organizations and attract for claimants certain consequence in law ( point 14 of Recommendations).
Point 15 of Recommendations defined the ground disputes subordinated to economic vessels. The affairs connected with protection of an ownership right or using the earth, disputes are referred to them concerning collecting rent receivable under the contract on using the land lot, concluded by the subject of managing and local government body.
According to VHSU position if a subject of dispute is the ownership right on the land lot or a right of use of it, including restoration of the broken right by the third party which on the basis of decisions of imperious bodies applies for the disputable land lot, such dispute is so-called dispute on the right and irrespective of participation in it of body to which the land lot is provided in a property or in using, should decide, according to VHSU, as economic legal proceedings.
And at last, in the information letter About some questions of practice of application of standards of the Economic procedural code of Ukraine, mentioned in reports about work of economic vessels in the first half of the year 2007 No. 01-8/675 from August 14, 2007 of VHSU, referring to article 16 of group of companies and article 20 HK by which as a way of protection of civil law and interest recognition illegal decisions is provided, actions or a divergence of public authority, authority of the Autonomous Republic Crimea or local government body, their official and officials, was defined that requirements about recognition of the act of the state or other authority illegal and about its cancellation are subject to consideration by economic court.
In this regard there is a question: what procedural norms to apply to the general, economic vessels at the solution of such disputes, after all norms civil, economic legal proceedings aren’t carried to jurisdiction of these vessels of business on the appeal of decisions of state authority?
Besides, the important role in the fair solution of any affairs will be played by procedure of their consideration which should be constructed on such principles of legal proceedings, as a dispozitivnost, competitiveness of the parties, official clarification of circumstances of business. Comparison of the procedural guarantees providing realization of these principles in economic, civil and administrative legal proceedings, testifies in favor of the last.
(on newspaper materials Legal practice)