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Legal opinion of the Armed Forces of Ukraine in the case No. 6-718 cc17

   According to Article 15 of the Code of Civil Procedure of Ukraine in civil proceedings, courts consider cases on protection of violated, unrecognized or disputed rights, freedoms or interests arising from civil, housing, land, family, labor relations, as well as from other legal relations, such cases in the CAS of Ukraine (Article 17), the COD of Ukraine (Articles 1, 12), the Criminal Procedure Code of Ukraine or KUoAP is referred to the competence of administrative, economic courts, in criminal proceedings or in proceedings on administrative rights cases ons. The law may provide for the consideration of other cases under the rules of civil proceedings.

   According to the provision of a special substantive law contained in part one of Article 376 of the Civil Code of Ukraine, the concept of unauthorized construction is determined by the totality of its main characteristics, in the presence of which the real estate object can be recognized as unauthorized, especially if such an object: 1) is built or built on a land plot , not allocated for this purpose; 2) built without proper authorization or a properly approved project; 3) built with significant violations of building codes and regulations.

   In case of a significant deviation from the project, or contradiction to the public interest or violation of the rights of other persons, significant violation of construction norms and rules, a court may, on the suit of the relevant state authority or local government, take a decision to oblige the person who carried out (construct) restructuring.If such adjustment is impossible, or the person who has carried out (carries out) the construction, refuses to conduct it, such immovable property is subject to demolition at the expense of the person who carried out the construction. The person who carried out (carries out) unauthorized construction is obliged to reimburse the costs associated with bringing the land plot to its original state (Part 7 of Article 376 of the Civil Code of Ukraine).

   Demolition of unauthorized construction is an extreme measure and is possible only when all the measures for responding and bringing the responsible person to justice are prescribed by the legislation of Ukraine.

   Thus, within the meaning of Article 177 of the Civil Code of Ukraine, the objects of unauthorized construction belong to the objects of civil rights.

   The analysis of the above-mentioned legal norms shows that the dispute over the claim of the Department of Architectural and Construction Inspection about the obligations of demolition of the object of unauthorized construction is subject to consideration in civil proceedings, since this dispute does not concern the protection of rights, freedoms and interests in the sphere of public legal relations, and therefore its consideration does not fall within the jurisdiction of administrative courts.

   The full text of the judgment can be found on the official websites of the state authorities of Ukraine.