Development of administrative justice in Ukraine and Germany: comparative law aspect

The social court system has three levels unlike the financial courts. The first are the social courts (die Sozialgerichte). The second level is the social court of the land (das Landessozialgericht). Their chambers consider complicated cases as courts of first instance, and are empowered to review decisions of courts of first instance. Social courts of land are organized in 16 subjects of the federation. The third level in the system of courts for social security is the Federal Social Court (das Bundessozialgericht), which consists of 14 chambers (on the matters of insurance of the unemployed, on the violation of the insurance rights of individuals, on the social security of victims of war, on the insurance of miners, etc.). Organizationally, the structure of the court includes the Grand Senate. The courts in the social affairs include, in particular, disputes on social security: insurance of the sick, pension, care for the sick, victims of war, etc. [1]. In the social court of first instance, the decision is adopted by the chamber of social affairs, consisting of one professional judge and two honorary ones. In the social court of the land, the decision is adopted by a senate consisting of three professional judges and two honorary ones (judges on a public basis). In the Grand Chamber of the Federal Social Court, 12 professional judges and 6 honorary judges adopt decisions.

The judicial system of Germany does not rule out the possibility of a judicial error, even if a similar case was considered by another court. To avoid possible mistakes, an institution of the Grand Senate and the High Senate was established, which is composed of the senates of different courts that ensure the unity of judicial practice in Germany. The Senate acts at the Supreme Courts. The Senate, which adopts a decision different than another Senate or the Grand Senate that has decided on a similar issue, must convene the High Senate. In Germany, such issues are governed by a special law on the unity of enforcement. The Grand Senate decides whether the FAC Senate can move away from a decision by another FAC Senate or the FAC Grand Senate. Transfer of the case to the FAC High Senate is possible only in the event that the Senate, the decision of which the other Senate deems necessary to withdraw, responds to the request of the latter that it continues to maintain its legal position.

Otherwise, the FAC Senate has the right to bring before the FAC High Senate the issue which, in its opinion, is a matter of law that is fundamental to the formation of a uniform law practice and which may further affect the development of law as a whole, or if this issue urgently requires solution for the particular case under consideration, to protect the rights, freedoms and interests of the individual and the citizen. It should be noted that the High Senate decides only on matters of law, that is, the factual side of the case should in any event remain outside the jurisdiction of the court. The decision of the High Senate is binding on the decisions of other FAC senates.

Conclusions

Thus, the administrative justice of Germany as a standalone, independent judicial branch is characterized by internal specialization (administrative courts of general jurisdiction and special jurisdiction). But as of today, there is a debate on the necessity of reforming the judicial system of Germany, which, in addition to specialization in the fields of justice and the presence of two and three levels, is complicated by the federal form of territorial organization. In particular, an opinion is entertained regarding the practicality of having a two-tier judicial system with regard to the majority of cases of minor complexity and preservation of a three-tier judicial system solely for administrative cases that are fundamental to the formation of a unified law enforcement practice, are of considerable public interest or of exceptional importance to the party involved.

Administrative justice in Germany is the activity of administrative courts of general and special jurisdiction operating within the entire judicial system and administering justice by protecting the subjective rights and legitimate interests of individuals from unlawful decisions, illegal acts and inaction of the executive authorities and local self-government and their officials.

In Ukraine, in comparison with Germany, before the introduction of amendments to the Constitution of Ukraine in the area of justice, the four-tier judicial system operated, which to some extent caused the devaluation of the court decision as such and caused the desire and habit of individuals and economic entities to demand its review for the sake of the process itself, wasting time on adoption of the decision and its enforcement, which in some way resulted in the loss of the effect of the protection of the infringed law by the judicial system. As of today, the system of administrative courts in Ukraine has received more sophisticated procedural legislation that allows faster resolution of cases of insignificant complexity, which has put into practice new procedural institutes and the procedure for resolving public-law disputes that allow more efficient handling of administrative cases, although not flawless; which introduced so-called cassation filters, the essence of which is to determine the exceptional grounds for cassation appeal in cases where such an appeal is really necessary, which should serve to form an effective judicial system and guarantee the person the right to a final and binding judgment. The introduction of the cassation «filters» defined in the current ACPCU evidences the implementation by Ukraine of the recommendations of the Venice Commission on improving the justice system and the administration of justice by allowing the Supreme Court to consider any case through the use of cassation «filters».

References

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