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Vol. 41, Nº 78 (2023), 579-594
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 05/05/23 Aceptado el 11/07/23
Administrative coercion as the method for
providing state defense order
DOI: https://doi.org/10.46398/cuestpol.4178.40
Vladyslav Povydysh *
Vitalii Makarchuk **
Iryna Nakonechna ***
Nelli Tsybulnyk ****
Yevhen Kobko *****
Abstract
Using the logical and semantic method the purpose of the
research was to reveal the essence of administrative coercion as
a method of ensuring the state defense order. In the results of
the research the article denes administrative coercion as the
method of ensuring the order of defense of the state in the system
of legal and administrative measures to assert compliance with
the duties and requirements related to the implementation of
the studied institution. In terms of practical signicance, it is established
that administrative coercion is aimed at ensuring the smooth, ecient
and operational functioning of the military-industrial complex and other
important sectors providing production, supply and development of military
equipment, as well as scientic research institutes and organizations engaged
in the development of new technologies for defense needs. It is concluded
that administrative coercion is an important and necessary method in the
process of ensuring Ukraine’s security and defense capabilities, as it allows
controlling the production and supply of strategically important goods and
services.
Keywords: administrative coercion; control mechanism; method and
arrangement; state defense order; goods and services.
* Candidate of Legal Sciences, Doctoral Student of the Scientic Institute of Public Law, Ukraine. ORCID
ID: https://orcid.org/0000-0002-3908-6409
** Candidate of Legal Sciences, Doctoral Student of the Scientic Institute of Public Law, Ukraine. ORCID
ID: https://orcid.org/0000-0002-9099-8921
*** Candidate of Legal Sciences, Associate Professor, Professor of the Department of General Law
Disciplines of the National Academy of Security Service of Ukraine. ORCID ID: https://orcid.
org/0000-0001-9405-4621
**** Candidate of Legal Sciences, Applicant of the Department of Admanistrative Law and Administrative
Activities of Yaroslav Mudryi National Law University. ORCID ID: https://orcid.org/0000-0002-
5128-0511
***** Doctor of Legal Sciences, Associate Professor, Professor of the Department of Public Management
and Administration of the National Academy of Internal Aairs. ORCID ID: https://orcid.org//0000-
0002-3121-0823
580
Vladyslav Povydysh, Vitalii Makarchuk, Iryna Nakonechna, Nelli Tsybulnyk y Yevhen Kobko
Administrative coercion as the method for providing state defense order
La coerción administrativa como método para
proporcionar una orden de defensa del Estado
Resumen
Mediante el método lógico y semántico el propósito de la investigación
fue revelar la esencia de la coerción administrativa como método
para asegurar el orden de defensa del Estado. En los resultados de la
investigación el artículo dene la coerción administrativa como el método
de asegurar el orden de defensa del Estado en el sistema de medidas legales
y administrativas para armar el cumplimiento de los deberes y requisitos
relacionados con la aplicación de la institución estudiada. En términos
de signicado práctico, se establece que la coerción administrativa tiene
como objetivo garantizar el funcionamiento uido, eciente y operativo del
complejo militar-industrial y otros sectores importantes que proporcionan
la producción, suministro y desarrollo de equipos militares, así como
institutos de investigación cientíca y organizaciones dedicadas al desarrollo
de nuevas tecnologías para las necesidades de defensa. Se concluye que la
coerción administrativa es un método importante y necesario en el proceso
de garantizar la seguridad y la capacidad de defensa de Ucrania, ya que
permite controlar la producción y el suministro de bienes y servicios de
importancia estratégica.
Palabras clave: coerción administrativa; mecanismo de control; método
y disposición; orden de defensa del Estado; bienes y
servicios.
Introduction
The relevance of the study of administrative coercion as a tool for
securing State defense order lies in the fact that the eective implementation
of a defense order requires proper control, coordination and enforcement
of duties by enterprises, organizations and citizens related to the defense
sphere, especially considering the processes, threatening social existence
of the society (Kharytonov et al. 2021) and struggle between freedom
and dependence (Panchenko et al., 2022). State defense procurement
is a complex system of planning, implementation and control over the
manufacture and supply of military products, weapons, equipment and
services.
Ensuring successful implementation of defense order requires the
availability of eective tools enabling compliance with the established
norms, rules and restrictions. Administrative coercion, or administrative
measures, are one such tool, the study of which can contribute to the
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implementation of eective management mechanisms aimed at preventing
violations, ensuring the implementation of agreements and monitoring
compliance with safety, quality and technological standards in the
production of defense products.
Thus, administrative coercion in the aspect of ensuring State defense
order is an acute scientic issue, which in turn necessitates new scientic
research within the symbiotic combination of administrative and military
law.
Therefore, the purpose of the article is to reveal administrative coercion
as a method for securing State defense order based on the theory of
administrative and military law, rules of national legislation and the views
of scientists.
1. Methodology
The methodological basis for the Article is a set of methods and
techniques of scientic knowledge. Their application is guided by a
systematic approach, which made it possible to investigate the problems
in the unity of their social content and legal form, to carry out systematic
analysis regarding the application of measures of administrative coercion.
Separate methods of scientic knowledge were also used in the work.
With the help of the logical and semantic method and the method of
ascent from the abstract to the concrete, the conceptual apparatus was
deepened, the essence and features of administrative coercion were
determined.
The methods of classication, grouping, system and structural, system
and functional approaches were used to identify the problems connected
with State defense order, as well as the range of measures and control
mechanisms of administrative coercion, which are used by state bodies to
support the implementation of the State defense order.
Dogmatic and legal method was useful when considering legal
instruments governing State defense order in Ukraine.
Logical method was applied when analyzing scientic approaches to the
issues under consideration.
The method of legal abstraction helped to formulate the authors’ view
on the administrative coercion in general and as a method of ensuring a
state defense in particular.
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Administrative coercion as the method for providing state defense order
2. Literature Review
In the theory of administrative law, the denition of administrative
coercion is approached ambiguously. Thus, Kliushnychenko (1979) denes
administrative coercion not only as a set of certain measures applied by
the relevant State bodies to certain subjects, but also reveals its purpose
– preventing illegal acts, bringing to justice for administrative oenses,
ensuring public safety.
Riabov (1974) denes administrative coercion as certain measures,
without delineating either their types or purpose, while emphasizing only
the extrajudicial nature of their application.
According to Kolpakov and Kuzmenko (2003), administrative coercion
should be understood power exercised on behalf of the State against the
subjects of oences unilaterally and in cases provided for by law, rstly,
measures to prevent oences, secondly, measures to deal with oences,
thirdly, penalties for violations of regulations.
Komziuk (2002) proposes to understand administrative coercion as
the application by relevant actors of moral, property, personal and other
inuence measures to persons outside their control, regardless of the will
and desire of the latter with the aim of protecting social relations, which
arise in the sphere of public administration, through prevention and cease
of oenses, punishment for their commission.
The topic of the state defense order is always under the close attention
of society, since the state of the defense capability of the country in general
and the Armed Forces in particular depends on its completeness.
The state defense order envisages providing the Armed Forces of
Ukraine and other paramilitary formations with new promising weapons
and military equipment: modern artillery systems, armored missile boats,
unmanned aerial vehicles, armored vehicles, means of observation, aiming
and night vision, modernization of airplanes, helicopters and other military
equipment, etc. (Matvuishin and Otsabryk, 2018).
Usachenko (2020) assures that the essence of the state defense order
can be dened as a special method of management to meet State needs. It
acts both as an economic tool for regulating macroeconomic processes on
the part of the state, and as a means of balancing supply and demand for
certain goods. With its help, one can inuence the organization of private
production processes, develop competition between producers and increase
the competitiveness of the economy in general.
As an object of administrative and legal support, Povydysh (2021)
denes state defense procurement as the system of relatively diverse range
of social relations that arise, change or terminate due to the planning,
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formation, placement, adjustment and execution of a state defense order
for the purpose of supplying (procurement) goods, works and services to
meet the military needs of the law enforcement agencies of Ukraine in
weapons, military equipment, other material means and ensuring national
security and defense.
3. Results and Discussion
The State defense order is formed and implemented within the
framework of the Resolution of the Cabinet of Ministers of Ukraine “Some
issues of the State defense order for 2021” (Resolution of the Cabinet of
Ministers No. 614, 2021), which approves the following documents:
• Temporary procedure for placement, adjustment of the state defense
order, as well as control over its execution;
• Standard state contract for the supply (purchase) of products under
a state defense order;
• Standard state contract for the performance of works (providing
services) under a state defense order;
• Typical state contract for the performance of research and
development (research, technological) work under a state defense
order.
The customers of the state defense order are: Ministry of Internal
Aairs, Ministry of Economic Development and Trade, Ministry of Defense,
Ministry of Justice, State Emergency Service, Security Service of Ukraine,
Foreign Intelligence Service, State Space Agency, State Border Service
Administration, State Service Administration special communications and
information protection, the Main Intelligence Directorate of the Ministry of
Defense, the State Security Oce, the National Anti-Corruption Bureau, the
National Guard, the National Police, the State Special Transport Service.
The Law of Ukraine “On Defense Procurement” No. 808-IX (2020)
and “On the National Security of Ukraine” (Law of Ukraine No. 2469-
VIII, 2018) serve as the main tool for management of the orders for the
purposes of State consumption. It is the economic and legal, organizational,
management, and administrative mechanism through which the State
realizes its nancial, material, and other resources in the country’s economy
for the fulllment of various state programs of orders, primarily in the
military area.
A sound procurement process for defense-related goods and services is
extremely important for the defense forces, their capability and readiness.
Problems and contradictions related to defense procurement are well known
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Administrative coercion as the method for providing state defense order
in Ukrainian society. Some cases from the past directly aected the political
rating of the country’s top leadership. Despite some positive changes, the
Ukrainian defense procurement system needs signicant reforms.
The main stakeholders of the process of reforming the procurement
system constantly expressed their expectations regarding the successful
implementation of the key provisions of the reform and the introduction of a
new well-functioning system. Stakeholders are the Ukrainian government,
the Ukrainian Armed Forces (as the end user of the procurement system),
an active part of Ukrainian civil society, and the international community.
Defense procurement reform is one of the main requirements of the
road map of Euro-Atlantic integration of Ukraine and a condition for
receiving international military aid. The adoption of the Law “On Defense
Procurement” was an important milestone in this regard, as it establishes
new principles for the procurement system. At the same time, the best
principles alone are not enough; in order for the system to work, developed
and detailed algorithms of procedures are necessary. The quality of these
procedures will determine the quality of the reforms (Center of Defensive
Strategies, 2021).
According to the Law No. 808-IX (2020), defense procurement is
procurement by the state customer of goods, works and services intended
for the implementation of State programs in the spheres of national security
and defense, as well as other goods, works and services for the guaranteed
provision of security and defense needs.
In doing so, State contract is an agreement concluded in writing by the
State customer on behalf of the state with the executor in accordance with
the approved plans for procurement of defense goods, works and services.
State customers in the eld of defense are central bodies of executive
power, other State bodies, military formations formed in accordance with
the laws of Ukraine, determined by the Cabinet of Ministers of Ukraine;
State customer carries out defense procurement planning, on the basis
of which:
1. form proposals for a consolidated three-year plan for the
procurement of defense goods, works and services under closed
procurement in accordance with the State programs and submits
them to the main body in the eld of defense procurement planning
within the time limit set by the said body;
2. draws up and approves three-year and annual plans for procurement
of defense goods, works and services, amends them. These plans
and amendments are previously agreed with the committee of
the Verkhovna Rada of Ukraine, whose powers include issues of
national security, defense and intelligence;
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3. organizes and carries out procurement of goods, works and services
for defense purposes;
4. submit reports on the results of procurement, conclusion and
execution of State contracts (agreements) to the main body in
the eld of defense procurement planning, within the time limit
determined by it;
5. concludes purchase agreements and state contracts, including
import ones;
6. ensures payment in accordance with the terms of state contracts
(agreements), including advance payment (advancement);
7. provides the executors of state contracts (agreements) with a
technical specication;
8. organizes tests (state, inter-agency, departmental and other tests
of the state customer, and, if necessary, certication) of samples
of weapons, military and special equipment, accepts them for
armament (use), supply, allows them to be used;
9. participates in tests of prototypes, experimental and serial samples
(complexes, systems) of weapons, military and special equipment,
materials and components;
10. evaluates the participant’s selection of information regarding on the
cost of the life cycle of defense goods, etc.
Planning the procurement of goods, works and services for defense
purposes is a component of defense planning and is carried out in
accordance with the Law of Ukraine “On the National Security of Ukraine”
(Law of Ukraine No. 2469-VIII, 2018) and this Law, taking into account
the number of expenditures necessary to nance the security and defense
sector.
The basis for planning the procurement of defense goods, works and
services is the needs, priorities of the security and defense sector, the
amount of nancial resources necessary for their satisfaction, provided by
strategies, other strategic documents and state programs in the spheres of
national security and defense, the development of the components of the
security sector and defense, in particular, equipping them with modern
weapons and military equipment, creating the necessary stocks of material
and technical means and the necessary capacities of the defense-industrial
complex for this, implementation of other measures to strengthen the
state’s defense capability.
Currently, there are a number of problems in the procurement system
with State defense orders:
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Vladyslav Povydysh, Vitalii Makarchuk, Iryna Nakonechna, Nelli Tsybulnyk y Yevhen Kobko
Administrative coercion as the method for providing state defense order
1. The current State defense order procedure allows relevant departments
to specify a type of equipment with an indication of the model and/
or manufacturer, while there is no formal requirement to consider
alternative options and justify their choice. This excludes competition,
and even with the existence of real alternatives between the options
presented, the nal choice is based solely on individual decisions.
At the same time, there is no procedure for purchasing from a single
supplier, which would resemble similar international practices.
2. The government approves State defense order every year through
a time-consuming process in a short time frame. Long-term projects,
whose implementation period reaches more than a year, every year risk
being interrupted. Open-ended projects, such as renovations, are also
regularly interrupted. The projects, the term of which extends for more
than three years, are not allowed under any circumstances.
Despite the possibility of concluding three-year contracts, state
customers have the right to accept obligations under contracts for no more
than one year. Suppliers are unable to plan their long-term operations
(including stang, nancing and facility maintenance) due to uncertainty
about future sales in each subsequent year. We are talking about all goods,
including expensive equipment and equipment with a long manufacturing
cycle. The state-owned defense industry and its lead ministry are unable to
agree on their plans at the same time.
3. The State defense order system is based on the fact that the armed
forces formulate their needs in an opaque, overly complex and
completely obsolete way. In the case of the Armed Forces, this process
takes place at the General Sta of the Armed Forces. However, it is in no
way related to the availability of budgets to support these requirements,
since these budgets are managed by the Ministry of Defense. Thus,
the needs of defense forces are often very unrealistic. The Ministry of
Defense, which is formally responsible for procurement, does not have
a requirements planning policy. Therefore, it is very dicult to connect
the strategies of the armed forces and their vision of future capabilities
within the framework of the State defense order system. Besides, there
is the distribution of responsibility for this process between the Ministry
of Defense and the Chief of the General Sta.
4. State defense order may include only products that are part of the
adopted military equipment (which makes it impossible to have a
transparent procurement process, starting from development, and
putting into service “in the process” of procurement, when the necessary
technical solution is formed in the process of negotiations) and produced
by suppliers that are registered in the non-transparent register of
weapons and military equipment producers. This process is full of
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classied decisions, which leads to corruption and delays. As a result,
the introduction of new products becomes dicult, and customers
can choose only those products that are already in the “list of adopted
military equipment.” Because of this, old and obsolete equipment is
often purchased from year to year (Center of Defensive Strategies, 2021).
As one can see, the solution of these and a number of other problems
requires administrative and legal regulation, including the use of
administrative coercion measures. Therefore, the latter in the aspect of
ensuring the state defense order is an actual scientic issue, which in turn
necessitates new scientic research within the symbiotic combination of
administrative and military law.
In legal science, any denition of a right contains an indication of
its binding character – compulsory provision by the State. That is why
coercion carried out by the State within the limits and on the basis clearly
dened by the legislation can be considered a means of ensuring law and
order, compliance with the requirements determined by the rules of law
(Kolomoiets, 2005).
In the scientic literature, there is an opinion that one of the problems
of understanding “administrative coercion” is the lack of normative
consolidation of this concept and the shortage of unity of the conceptual
apparatus among practical workers and researchers. Analyzing scientic and
educational literature, we can conclude that this is due to the application of
various features characterizing this administrative and legal phenomenon
when designing an appropriate denition of the concept by scientists, as
well as certain indierence on the part of the legislator to its creation.
Although administrative coercion is primarily legal coercion, because
the application of appropriate measures is strictly regulated by law, it is
carried out on the basis of and in compliance with regulatory prescriptions.
Unlawful use of coercive measures is a de facto arbitrary measure (Shestak,
2011).
Kolomoiets (2007) notes that administrative coercion is a special type
of state-legal coercion, i.e. methods of ocial physical or psychological
inuence of authorized state agencies (and in some cases public
organizations) on individuals and legal entities in the form of personal,
property, organizational restrictions of their rights, freedoms and interests
in cases of illegal acts committed by these persons (in the sphere of public
relations) or in extraordinary circumstances within the scope of separate
administrative proceedings for the prevention, termination of illegal acts,
ensuring proceedings in criminal cases, Accountability, prevention and
containment of consequences of emergency situations.
Holosnichenko, Stakhurskyi and Zolotariova (2005) denes
administrative coercion as the method of purposeful inuence on the
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Administrative coercion as the method for providing state defense order
behavior of citizens, as well as the activities of enterprises and organizations,
bodies, services and employees of the state executive apparatus in the
interests of ensuring the optimal level of compliance with the requirements
of legislation.
In turn, Bytiak (2006) interprets administrative coercion as the system
of means of psychological or physical inuence on the consciousness and
behavior of people with the aim of achieving clear fulllment of established
duties, development of social relations within the law, ensuring law and
order and legality.
Stetsenko (2007), in his turn, interprets administrative coercion as
a type of state coercion applied by the relevant state bodies (ocials) to
individuals and legal entities in order to prevent and cease oenses and
holding the perpetrators accountable.
Thus, the term administrative coercion should be understood as a legal
instrument used by the state to ensure compliance with the established
norms, requirements or decisions. Administrative coercion is a complex
approach including various measures and mechanisms of control,
regulation and inuence on individuals and legal entities.
In domestic scientic literature, method is understood as means of
achieving a set goal, and administrative and legal methods are ways and
means of direct and purposeful inuence of executive bodies (ocials) on
subordinate bodies and citizens on the basis of their competence, within the
established limits and in the appropriate form. As a result of the fact that
some methods are common to all government activities, all state bodies,
and others – to only some of them, management methods are divided into
general and special ones.
The authors refer persuasion and coercion, administrative and economic
inuence, supervision and control, direct and indirect inuence, regulation,
leadership and management to general methods. At the same time, they
consider persuasion and coercion as universal methods (Bytiak, 2007).
As Kysil (2011) correctly point out, “coercion” is an additional method
of state administration, which is the psychological or physical inuence
of state bodies or ocials (subjects of administration) on certain persons
(objects of administration) with the aim to compel them to comply with
legal provisions. This method of state administration manifests itself in two
forms: judicial and administrative and is based on the authority of the state
and the force of the law. The method of coercion is aimed at developing
certain forms of behavior, as well as maintaining social discipline.
Complementing the above, attention should be paid to the opinion by
Dembitska (2014), who noted that the method of coercion is an integral
component of the system of state management methods. This method
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belongs to the most rigid and undeniable means of inuence, therefore, in
the activities of management bodies and their ocials, coercion is used, as
a rule, in combination with other management methods.
Thus, administrative coercion as a method of ensuring a state defense
order is a system of legal and administrative measures to ensure the
fulllment of duties and requirements related to the implementation of
a state defense order. This method aims to ensure smooth, ecient and
operational functioning of the military-industrial complex and other
important sectors ensuring the production, supply and development
of military equipment, as well as research institutes and organizations
engaged in the development of new technologies for defense needs.
Administrative coercion can include a wide range of measures and
control mechanisms used by government agencies to ensure compliance
with State defense order. These can be measures such as:
1. licensing and registration of enterprises engaged in the production
of military products and equipment. The State can establish special
requirements and restrictions for such enterprises, as well as
monitor compliance with these requirements;
2. establishment of mandatory standards and technical requirements
for military products. The state may require manufacturers to use
certain quality and safety standards that guarantee compliance of
products with the established requirements;
3. control over the supply and distribution of military products. The
State may supervise the supply of military equipment and other
products, control the volumes, delivery and destination;
4. nancial control and nancing. The State may establish special
nancial rules and procedures for the enterprises engaged in the
production of military goods. This may include the provision of
nancial support, involvement in special funding programs, as
well as control over the use of allocated funds and compliance of
expenditures with the approved budget volumes;
5. application of sanctions, including nes. In the event of non-
compliance with the requirements of a government defense order or
violation of the established rules and restrictions, the government
may apply administrative sanctions such as nes, license suspensions
or other restrictions;
6. audit and verication. State bodies may conduct audits and
inspections of enterprises involved in the execution of a state
defense order, in order to verify compliance with requirements,
product quality, nancial activity and compliance with established
procedures.
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Vladyslav Povydysh, Vitalii Makarchuk, Iryna Nakonechna, Nelli Tsybulnyk y Yevhen Kobko
Administrative coercion as the method for providing state defense order
Conclusion
The ongoing large-scale armed aggression of Russia against Ukrainian
independence necessitates an eective response to all illegal phenomena
that can have a destructive eect on the stability of social legal relations in
Ukraine (Odnolko et al., 2023). A sound procurement process for defense-
related goods and services is extremely important for the defense forces,
their capability and preparedness.
Problems and contradictions related to defense procurement are well
known in Ukrainian society. Some cases from the past directly aected
the political rating of the country’s top leadership. Despite some positive
changes, the Ukrainian defense procurement system needs signicant
reforms.
Administrative coercion is an important and necessary method in the
process of ensuring the security and defense capability of the country,
because it allows to control the production and supply of strategically
important goods and services, to ensure the uniformity of standards
and quality, as well as to respond to the changes in defense needs and
geopolitical environment.
Along with this, it is worth noting that administrative coercion should
be carried out taking into account transparency, eciency and fairness.
The state should provide all the necessary resources and support for
the development of the military-industrial complex, including research
activities, innovative projects and cooperation with the private sector,
because such an approach will help ensure competitiveness, thereby
increasing the appropriate quality and reliability of military equipment.
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Esta revista fue editada en formato digital y publicada
en julio de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 78
