Administrative act appeal within the administrative procedure: comparative legal analysis

Abstract

A comparative legal analysis of one of the stages of administrative procedure i.e. the stage of appeal against an administrative act has been carried out. The attention is focused on the study of the provisions of the FRG Law “On Administrative Procedure”, the Code of Administrative Procedure of Poland and the Law of Ukraine “On Administrative Procedure” regarding appealing against the results of administrative procedure. An analysis of the peculiarities of the mechanism for appealing against an administrative act within the framework of administrative procedure in Poland and Germany has been carried out, and a comparison has been made with the provisions of the Law of Ukraine “On Administrative Procedure”, and proposals have been provided for improving the provisions of the law which has not yet entered into force. It has been proved that the Law of Ukraine “On Administrative Procedure” should clarify the provisions on the subject of complaint consideration, given the lack of criteria to be taken into account when selecting the subject of complaint consideration. The Law provides for an alternative composition of the body which is authorised to consider complaints: 1) a higher-level administrative body, unless another entity is provided for by law; 2) a board for reviewing complaints.

We consider it expedient to move away from the concept of consideration of a complaint by a higher body, since administrative officials often violate the principle of impartiality and fairness when considering a complaint, and to establish that the subject of consideration of a complaint is a collective body – a commission formed by a higher-level administrative body, to provide for pre-trial resolution of a conflict (dispute), which involves individuals filing a complaint within the framework of an administrative appeal, as a mandatory condition, which will solve the problem of parallel judicial review. In order to expand the means of protection of rights and interests in the administrative procedure, it has been proposed to enshrine the right of a person to use mediation as an alternative to administrative appeal.