О некоторых аспектах судебной защиты публичных прав в России

Abstract

The article deals with the problem of procedural features of consideration by courts of cases of a public law nature. The author proceeds from the fact that the state, its subjects, municipalities represented by the relevant bodies and authorized officials are the obligatory party of the public law relationship. At the same time, in a public legal relationship, its subjects are in a relationship of power and subordination. The specificity of public law is due to its belonging to an unlimited circle of persons, which naturally produces the impossibility of disposing of it by a specific, individual subject, including in the procedural sphere. Because of this, procedural administrative rights (refusal of a claim, recognition of a claim, the right to conclude a settlement agreement) in proceedings on cases arising from public legal relations (administrative proceedings) should be limited, and judicial control in their commission should be strengthened. The author differentiates cases subject to consideration according to the rules of administrative proceedings into administrative and public law cases, arguing that in public law cases, the mandatory participation of the prosecutor should be fixed, with a positive conclusion of which the parties have the opportunity to perform administrative procedural actions. It is noted that the state, its subjects and bodies can become participants in civil law relations, disputes from which are resolved in civil and arbitration proceedings, claims proceedings, the rules of which should also be modified taking into account this circumstance. Thus, it is proposed to fix the mandatory participation of the prosecutor in lawsuits, if one of the parties to the legal conflict is a public authority.