Differentiation of Civil and Administrative Judicial Forms of Protection of Legal Interests

Abstract

To date, the question of what property of a court case determines whether it is subject to consideration and resolution in a civil or administrative court procedure has not been finally resolved in the procedural public law, which also did not receive an unambiguous solution. Among the criteria presented in the legal doctrine, some allow us to identify only a part of public-law phenomena, while others are applicable to all phenomena of a public-law nature, but have imperfect formulations. The unresolved nature of this scientific problem leads to the existence of cases whose judicial form does not correspond to their nature. At the same time, the correct definition of the judicial form of protection depends on the achievement of the goals of such protection. The purpose of the article is to substantiate the criteria for distinguishing between civil and administrative judicial forms of protection. The study is based on the use of the method of system analysis, analogy, logical techniques, special legal methods of cognition of the phenomena of legal reality. It is proved that the criterion for choosing the judicial form of protection is the nature of the subject of protection (the nature of the legal interest), which can be private-legal and public-legal. To determine the nature of the subject of protection, two criteria are proposed that correspond to the philosophical categories of essence and phenomenon. The essential property of a legal interest is the nature of a social good, for the sake of achieving or preserving which a legal interest arises and which can be individually significant (for private legal interests) or generally significant (for public legal interests). The second, external, criterion for determining the nature of a legal interest is the scope of the implementation of the interest – privatelegal or public-legal.