Ensuring freedom of entrepreneurial activity: the obligation of the state and legal positions of the court

Abstract

The article analyzes the practice of courts of administrative justice in the context of the analysis of their legal positions, addressed to the state’s obligation to ensure guaranteed protection of the constitutional right of a person to entrepreneurial activity, which is not prohibited by law.It has been established that the root cause of the emergence of a number of disputes in the field of entrepreneurship is mostly not legislative gaps or inadequate quality and clarity of laws, but their incorrect enforcement, which is connected with the tendency of each party (controlling body and subject of entrepreneurial activity) to interpret these norms in their own way benefit.It was found that the administrative courts, which were created and operate to protect the rights, freedoms and interests of individuals in the field of public-law relations, formed a system of legal positions aimed at ensuring the freedom of entrepreneurship in Ukraine. It has been investigated that such legal positions are: the inadmissibility of inspections of business entities based on anonymous and other groundless statements; the reason for conducting an inspection visit should not be an appeal by any physical person, but only by a person in respect of whom labor legislation has been violated, which has caused damage to his rights, legitimate interests, life or health, the surrounding natural environment or the security of the state; the body of state supervision (control) within the limits of its powers during the implementation of state supervision (control) has the right to receive relevant and appropriate explanations, certificates, documents, materials, information on issues arising during state supervision (control); during the implementation of state supervision (control), the business entity is obliged to provide documents, samples of products, explanations in the amount that it considers necessary, which gives it a certain «margin» to exercise its own discretion in the aspect of making certain decisions, actions; advertising deception of the consumer is a type of leveling of the principle of freedom of entrepreneurial activity; the subject of the inspector’s unscheduled control can be only those issues that became the legal basis for its conduct, which correspond to the requirements and conditions of freedom of entrepreneurial activity in the state, not prohibited by law.