Problems in determining the jurisdiction for judicial review of individual acts

Abstract

This academic article examines the theoretical and practical issues associated with determining judicial jurisdiction in cases concerning appeals against individual acts issued by public authorities. Specific causes of subject-matter jurisdictional conflicts between administrative, civil and commercial proceedings have been identified. The methodological basis of the study comprises methods of analysis, synthesis, formal-legal, comparative-legal and systemic-structural approaches.

It has been established that the main causes of substantive jurisdictional uncertainty in disputes concerning appeals against individual acts are legislative inconsistency in terminology and the ability of social relations in the sphere of their adoption and application to shift from public law to private law. National substantive and procedural legislation and judicial practice use terms that are inconsistent with one another (individual act, legal act of individual application, administrative act, law-enforcement act, act of application of law, law-enforcing act, non-normative act), which leads to conceptual uncertainty. It has been demonstrated that public-law relations in the process of issuing and subsequently implementing an individual act may transform into private-law relations. Under such circumstances, an individual act, whilst remaining public in form, may affect purely private rights and interests of natural and legal persons, which constitutes a separate ground for its annulment. By giving rise to negative consequences under private law, the dispute itself in such cases shifts from public law to civil or commercial law, notwithstanding the presence of a public element in the composition of the parties. It has been established that the nature of the dispute is the decisive criterion that removes the case from the jurisdiction of the administrative courts, even if the contested individual act was issued by a state authority or a local self-government body.