RUDN Journal of Law (Dec 2016)
Indemnification Problems, Caused by Actions (Inaction) or Decisions of Government Bodies and Their Public Officials within Administrative Process
Abstract
This article is devoted to problem aspects of indemnification which resulted from actions (inaction) or decisions of bodies of public administration and their public officials. The author analyzes system of standard regulation of these relations, the developed court practice, revealing features of realization of the right for compensation of the harm done by the state as a result of its administrative and jurisdictional activity. The special attention is paid to debatability of a question of the legal nature of the adjustable relations, a problem of definition of a standard basis of the indemnification caused by the state within administrative process including a problem of applicability of all ways of protection provided by the civil legislation at realization of the right for indemnification caused within administrative process. Questions of establishment of illegality and guilt at infliction of harm as a result of implementation of imperious actions (decisions) are analyzed, and also questions of a preyudition, admissibility of justification within claim production of illegality of the decisions of standard and substandard character made by public administration. Conclusions about the insufficient clearness of legal regulation of the studied question are presented to end, the assessment is given to debatable aspects of a perspective and tendencies of development of institute of compensation of the harm done by the state, ways of improvement of the current legislation and law-enforcement practice are offered. The author offers two ways of the legislative solution of the delivered problem: recognition of all indemnification methods provided by the civil legislation within administrative legal relations by means of more accurate general legislative specifying on admissibility of all sales opportunities of this right in relation to indemnification caused by actions of public administration or forming of own full administrative and legal regulatory base of compensation of the harm done by the state as a result of its administrative and jurisdictional activities. Regardless of the chosen way of enhancement of the considered institute, its updated standard basis shall consider positive achievements of law-enforcement practice, especially - the progressive legal line items created in the course of interpretation of disputable regulations by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. Audit of the legislation regarding a regulation of indemnification shall promote not only to refining of the place of this institute in system of legal regulation, but also to provide proper protection of the appropriate right.
