Concepts and Features of Administrative Contracts through the Prism of Regulatory Provisions and Judicial Practice in Ukraine

Abstract

Background: The article provides information on how the definition of an administrative contract was developed in Ukraine. Initially this concept was enshrined in the Code of Administrative Proceedings of Ukraine (hereinafter - the Code). Before the adoption of the Code, that is, until 2005, this phenomenon had been studied fragmentarily in the legal literature. We can name only a few authors who made attempts to investigate the issues of defining an administrative contract in order to identify its features and types comprehensively. Theoretical approaches to the definition and classification of administrative contracts are presented, and their main characteristics are outlined. It is noted that the subject structure of these contracts determines that in connection with the fulfilment of their conditions, each of the parties achieves the desired goal: the representative of the government strives for socially significant results, and the individual - for the satisfaction of private interests. The definition of an administrative contract fixed in the Code of Administrative Proceedings of Ukraine was analysed and it was concluded that it is suitable for the purposes of applying the procedural law. The article also examines the issue of whether compromise agreements belong to the category of administrative agreements. Methods: At the beginning of the study, theoretical approaches to defining administrative contracts and the identification of their features and classification are presented and differences in the positions of Ukrainian researchers studying the relevant issues are outlined. Subsequently, the legislative definition of the administrative contract is analysed and it is determined whether it is based on the theoretical developments presented above. The court decisions interpreting the normative provisions establishing the features and types of administrative contracts are summarised and we discovered whether Ukrainian judges turn to research sources in order to make such an interpretation and substantiate their positions. Consistent study of the theoretical developments, normative documents, and practical cases of applying the rules concerning administrative contracts allowed us to reach certain conclusions, which will be useful both to research scholars in the field and representatives of authorities who apply the specified rules. Results and Conclusions: Examples of court decisions are given, which consider the features of administrative contracts in the context of determining the judicial jurisdiction of disputes arising as a result of their conclusion, execution or termination. The position stated in these decisions is supported, according to which the contract cannot be considered administrative if it is concluded in accordance with the rules of civil or economic legislation. Disagreement was expressed with the statement that in the case of concluding an administrative contract, one of its parties, namely a subject of power, must necessarily perform management functions in relation to the other party, and arguments are given to support such disagreement. The need to define an administrative contract, establish the grounds and general procedure for its conclusion, execution and termination are substantiated in the Law of Ukraine “On Administrative Procedure”.