The issue of administrative process and administrative procedural law will be perhaps the most relevant and at the same time controversial and controversial in modern Russian administrative law. Obviously, it is precisely for this reason that it remains unresolved both in the theory of administrative procedural law and in administrative procedural legislation.
On the administrative process, its concept, structure ( administrative proceedings ah), types, classification criteria, scientists have written many scientific papers. Experts are trying to define the concept and substantiate the essence of the administrative process, that is, to show such an ongoing government bodies and by public administration authorities procedural activity, which undoubtedly could be attributed to administrative procedural activity.
From one point of view, until now there has not been developed a uniform theoretical explanation of the content of administrative-procedural activity and a unified approach to the definition of the concept of "administrative process". Note that the terms "administrative process" and "management process" do not have a normative definition either. At the same time, in some legal acts they are applied, albeit without any interpretation or clarification. For example, in the Concept of formation in Russian Federation e-government until 2010, it is noted that one of the goals of the formation of e-government will be to improve the quality of administrative and managerial processes.
On the other hand, an attempt to study the content of the administrative process leads to the identification of rather monotonous, in many ways similar to each other, definitions of this concept contained in the specialist literature.
Do not forget that it will be important to say that at the first stage of the theoretical analysis of the concept and content of the administrative process, scientists usually defend the traditional and widespread point of view about the types of administrative process, in which the administrative process can be viewed from the standpoint of a broad and narrow understanding. The second stage of the study of this issue leads scientists to the statement that traditionally, in the structure of a wide and narrow administrative process, many productions (administrative proceedings), allocated depending on tasks and functions government controlled.
What is the content of the administrative process in broad and narrow senses?
Broad understanding administrative process - ϶ᴛᴏ order of implementation all government; procedures for the functioning of the executive branch, its bodies and officials. The breadth, multidimensional and multi-level nature of the law enforcement activities of public administration bodies, as well as the large number and variety of considered public administration bodies and their officials“Case-by-case” predetermined a broad understanding of the administrative process.
The administrative process in a broad sense is defined by scientists as a system of consistently performed actions regulated by legal norms in order to ensure a certain procedure for the activities of the body (official) of the executive power for the application of administrative legal regulations... For example, in ϶ᴛᴏm sense, an administrative process will be an administrative procedure contained in each current administrative regulation on the performance of a state function or the provision of a public service. At the same time, officially (i.e., in regulatory legal acts), the procedure for the implementation of actions by officials to perform a public function or provide a public service is called administrative procedure. It is this administrative procedure that ensures the proper functioning of the executive authorities or their officials. Moreover, depending on the nature of the state functions procedural activities can be both regulatory, control and supervisory, and administrative-coercive, aimed at solving the problems of administrative jurisdiction and administrative coercion.
A broad understanding of the administrative process is shared by the majority of Russian scholars who study the problems of administrative law. For example, D. N. Bakhrakh believes that such an approach appears to be "fruitful, consistent with a broad understanding of the legal process."
The wide administrative process is identified in the special literature with the so-called management concept, or procedural concept, administrative and procedural activities, in which the procedural side of the activities of executive authorities and their officials is considered.
Narrow understanding administrative process is to define it as a procedure for resolving administrative tort legal disputes, application to individuals or legal entities of various types of administrative coercion, consideration and resolution of cases about administrative offenses... A narrow administrative process is considered to be regulated by regulatory legal acts administrative procedural activity, in which subjects of administrative jurisdiction use the norms of substantive law in order to resolve administrative and legal disputes (conflicts), the use of administrative coercion, incl. attracting a person to administrative responsibility.
A narrow approach to the administrative process will be the basis for the creation of the so-called jurisdictional concept administrative procedural activities. Material published on http: // site
With this administrative affairs and a tological approach the administrative process can be studied as administrative-jurisdictional(tort, coercive) process, during which the authorized subjects can use administrative methods and power-coercive legal means to ensure order in the sphere of current legal relations. This also includes the procedure for consideration by the courts of any administrative-legal disputes.
It is important to note that one of the scientists who initiated the study of the problems of administrative process and administrative procedural law will be V.D.Sorokin.
So-called narrow-wide approach to the definition of the administrative process predetermined the prevalence in scientific and educational literature opinions that in modern administrative procedural law it is possible to justify many administrative processes. It can be concluded that the system of the administrative process includes the so-called mini-administrative processes (or administrative proceedings), which arise in various areas of the functioning of administrative bodies and are due to the peculiarities of specific legal cases resolved in these areas 2. Consequently, administrative processes (or administrative proceedings) are located in the system of the main spheres of public administration, for example, in public service, in the field of control and administrative supervision, in the performance of established state functions, in proceedings on cases of administrative offenses, in proceedings on incentives for civil servants, in registration legal relations.
The main features administrative process, which can be considered by combining different approaches to the understanding of his type of procedural activity, there will be the following:
1.administrative process - ϶ᴛᴏ type of legal process designed to create order implementation of the norms of substantive administrative law, as well as the norms of other industries Russian law(for example, customs, tax, financial, land, urban planning, environmental), defining the types of powers and functions of bodies public authority and their officials;
2.administrative process - enforcement(procedural or procedural) activity executive authorities, their officials, state and municipal employees, and in some cases and judicial activity(for example, proceedings on cases of administrative offenses or on challenging normative or non-normative legal acts) Based on the above, we come to the conclusion that the administrative process will be a form of implementation of both the executive and the judiciary;
3. the administrative process is carried out by a wide range of subjects of administrative procedural activity, which is due to the breadth of the definition of the administrative process itself;
4.the actual content of the administrative process will be the so-called external enforcement administrative bodies (including executive bodies state power and local government) by permission in established order and within their competence, individual legal cases arising on the basis of various substantive rules of law;
5.administrative process - ϶ᴛᴏ consideration of administrative and legal relations that have arisen between the participants dispute about administrative law;
6.administrative process - ϶ᴛᴏ, on the one hand, outside judicial order resolving individual administrative cases (non-judicial forms (procedures) for considering cases) arising from the implementation of the functions of the executive power and public administration on the basis of various norms substantive law, and on the other - judicial order consideration of selected types administrative affairs \
7. Administrative procedural relations are governed by the norms of many regulatory legal acts. Their system includes: federal laws and laws of the constituent entities of the Russian Federation; normative legal acts adopted by federal executive bodies, executive bodies of the constituent entities of the Russian Federation and executive bodies municipalities(for example, the laws of the Russian Federation "On Appealing Actions and Decisions Violating the Rights and Freedoms of Citizens", "On the Police", the Federal Law "On the Procedure for Considering Appeals of Citizens of the Russian Federation" public services);
8.administrative process - ϶ᴛᴏ rule-making activity executive bodies of state and municipal authorities;
9.administrative process - ϶ᴛᴏ not only the order of the so-called positive state or municipal administration, but also procedural activity on the application of measures of state legal coercion (for example, measures to ensure the proceedings in cases of administrative offenses, the application of administrative penalties to persons guilty of committing administrative offenses);
10.The main tasks of the administrative process will be: enforcing the rule of law the exercise by public administration bodies and their officials of powers but implementation of public administration functions, as well as the full exercise of their competence; protection of the rights and fod of man and citizen; security legitimate interests physical and legal entities; establishment of guarantees of the correct procedure for the implementation of managerial actions; determination of the procedure for the application of administrative coercion and the conduct of control and supervisory measures;
11. The structure and types of administrative process traditionally determine two main types of ensuring the legality of actions performed in the framework of procedural activities.
From one point of view, regulatory legal acts establishing the procedure (sequence) for the implementation of public functions and the provision of public services provide an opportunity to appeal against the actions (inaction) of authorized officials, as well as the decisions they make in pre-trial order. This order is also called administrative order. Pre-trial administrative proceedings are extremely diverse, ϶ᴛᴏ, for example, applications from citizens, the procedure for considering them is established by the Federal Law “On the Procedure for Considering Applications of Citizens of the Russian Federation”; implementation of management in accordance with the rules administrative regulations but the execution of government functions and the provision of government services. In the pre-trial (administrative) procedure, the application is sent to a higher administrative instance, to a higher official, to the head of a state body (chief). Based on the results of consideration of the application, an official of the current executive body of state power makes a decision to satisfy the applicant's requirements or to refuse to satisfy the application (complaint). on the other hand, the applicants have the right to appeal against the actions (inaction) of authorized officials in judicial procedure. In this case, in accordance with the provisions of the Law of the Russian Federation "On Appealing Actions and Decisions Violating the Rights and Freedoms of Citizens in Court," accepted court decisions
(for example, on the invalidity of a legal act) The administrative procedural form of resolving such disputes will be administrative proceedings;
12.administrative proceedings that are in the structure of the administrative process are carried out in practice in compliance with principles of administrative procedural activity. Material published on http: // site
It should be noted that the main principles legal process cause the emergence of a system, features and order of operation of the principles of the administrative process. Therefore, it can be concluded that each type of administrative proceeding is based both on the general legal principles of procedural activities (for example, legality, legal protection, the right to appeal against actions or decisions of administrative bodies, publicity), and on special principles that demonstrate the peculiarities of administrative - procedural activities and the procedure for exercising public administration (for example, the principle of presumption of the reliability of information about the actual circumstances of an administrative case (dispute), the principle of ensuring public interests, the principle of proportionality)
The terminology used in defining the concept and content of the administrative process - "wide" or "narrow" process - allows us to talk about inaccurate and therefore unreliable criteria for classifying state procedural activities as an administrative process, and also shows the absence of a legislative solution to this issue. The disputability of these terms will be the result of the unsettledness of administrative procedural relations in the current legislative act... Indeed, in Russia until now, for example, laws such as the law on administrative procedure, the law on administrative procedures, the administrative procedural code or the code have not been adopted. administrative proceedings... It is quite understandable that a narrow or broad approach to understanding the administrative process demonstrates the absence of its real legal content and, on the contrary, indicates its “virtuality” (ambiguity, eclecticism of the proposed structure, lack of content)
It seems that it is precisely this breadth of approach to understanding the administrative process that confuses or does not at all make it possible to approach the clarification of the modern legal nature administrative procedural activities. Material published on http: // site
It should be said that it turns out that administrative procedural norms can simultaneously regulate both the activities of public administration bodies (for example, executive authorities and their officials), and the procedure for the consideration of various administrative and legal disputes by the courts. It becomes obvious that the administrative process is applied and operates in the same way in the system of both the executive (administrative) power and the judiciary.
Obviously, at the present time, when developing the theory of the administrative process, it is extremely important to take into account the emergence of factors influencing the formation of new views on the content and structure of the administrative process. These include: improving public administration, the formation in Russia the rule of law, search for new ways of development of executive power, ongoing legal, judicial, administrative and other reforms. It is worth noting that they undoubtedly leave an imprint on the content of executive and administrative activities or activities for the implementation of public administration.
Modern administrative legislation makes us think about new approaches to understanding the administrative process and the formation of the branch of administrative procedural law. The managerial concept of the administrative process makes it possible to see its connections with the executive branch, numerous proceedings within its system (for example, on the adoption of regulatory acts of public administration, on cases of incentives). unified system all administrative proceedings, then there will be a need to classify them, to search for the location of each of them in the structure of government. The variety of public law disputes arising in the implementation of these administrative proceedings makes it even more possible to reflect on the problem of administrative procedural activities. Material published on http: // site
It is difficult to imagine a rethinking of the administrative-procedural legal reality without taking into account the characteristic features and principles of administrative-procedural activity included in the parameters of the management concept.
What is real administrative process? Real - means acting, established by law, used in practice, recognized by scientists or obvious from a legal point of view. If just such a criterion is taken into account, then it can be argued that at present there is no real administrative process in Russia, since not a single one has been accepted. Russian law establishing the term "administrative process". The legislator is generally not trying to clarify the terms "administrative process" and "administrative procedural legislation".
Of course, the phrase "reality administrative process "-϶ᴛᴏ exclusively a play on words. But it is extremely important to see in it the need to create the most suitable for the Russian legal system the theory of the administrative process, its "useful model". According to some scholars, this will be the understanding of the administrative process as trial as an administrative justice administered special courts and judges of administrative courts.
The administrative process, which did not develop doctrinally in Russia during almost the entire XX century, stopped at the level of its understanding as a procedural activity adapted to consider individual concrete cases arising in the field of public administration. As a rule, in this form ϶ᴛᴏ the concept is defined in educational and scientific literature and at the present time. Despite the many scientific works devoted to the problems of the administrative process, we can talk about fundamentally the same approaches to defining the concept and identifying the content of the administrative process.
It seems that such an approach in modern conditions will be illogical and outdated. The concept of "administrative process" appeared in the 1950s-1960s. in the conditions of the functioning of the administrative-command system and, obviously, a meager understanding of the essence of public administration in Russia, in fact, the complete absence of the doctrine of ensuring public-law protection of the rights and freedom of man and citizen from misconduct(inaction) of the public administration.
The complexity and deep structuredness of the content of public administration, management procedures, the management process and the traditions and legal orders prevailing in the public administration system directly determine the complexity in determining the content, system and structure of the administrative process, administrative procedural activities and administrative procedural law.
It should be noted that the main trend in the development of the modern administrative process according to the concept that has traditionally developed in the scientific literature and is shared by the majority of administrative scholars will be the development of administrative procedural legislation regulating a variety of management relationships and administrative procedural the procedure for their implementation by authorized subjects of administrative law.
1. The concept of administrative procedural law and administrative process.
2. Types of administrative proceedings.
3. Stages of the administrative process (administrative proceedings).
Before starting to study this topic, the student from the previous educational material should know that the presence of material norms in itself does not mean the completion of the cycle of administrative and legal regulation... For the effectiveness of such an impact on social relations, the existence of norms is necessary that would provide material norms, the mechanism of action of legal acts, orient these norms towards achieving a legal goal.
A feature of the study of this topic is that administrative law, in contrast to other branches of law (criminal, civil), including both substantive and procedural administrative norms. That is, administrative procedural law acts as a sub-branch of administrative law. Today it can be argued that in Ukraine, administrative procedural law is developing as an independent branch of law, characterized by its subject matter and method, its regulatory and legal framework.
The student needs to realize that administrative procedural law is a system of administrative procedural rules regulating public relations related to the consideration and resolution of specific administrative cases.
Today, the norms of administrative procedural law of Ukraine are contained in numerous regulations have different legal force... The idea of their codification, which originated in the 50s. XX century, Remains unrealized.
The concept of administrative procedural law and administrative process
Administrative process and procedural law are not identical concepts. Process is a system of actions; procedural law - a system of norms for the implementation of these actions.
Administrative procedural law is a set of established binding rules that determine the procedures for consideration, decisions of specific administrative cases in the field of public administration, administrative jurisdiction and other industries public relations.
As a rule, the administrative procedural norms are implemented in the form and methods of the administrative process, which is the procedure for the promotion of actions, determined by the law, aimed at achieving a certain legal effect. These actions are officially established by the norms of administrative procedural law and are grouped into separate proceedings. Each proceeding as part of administrative procedural law is a set of procedural rules united by a common function for them.
With the help of norms, procedures are introduced to the administrative process as separate proceedings. The procedure must be considered the officially established or customary order of conducting, discussing, considering, processing, executing cases of a managerial or jurisdictional nature.
That is, we can come to the conclusion that the concept of "administrative procedural law" is broader than the concept of "administrative process", which is a form of implementation of this right in the form individual industries... The relationship between administrative procedural law, rule, procedure and production can be displayed in the following diagram: procedure - procedural legal norm - production (all together) is nothing more than administrative procedural law.
It should be borne in mind that the administrative process can be viewed both in the "broad" and in the "narrow" sense. In the first case, the administrative process includes both jurisdictional and procedural proceedings, which are considered by both courts and specially authorized executive authorities. Or, in a broad sense, an administrative process is a statutory procedure for considering and resolving individually-specific cases arising in the field of public administration), in the second - only as proceedings on cases of administrative offenses and the application of administrative penalties to offenders. Sometimes, the administrative process, in a narrow sense, is considered as jurisdictional proceedings, as well as the consideration of cases with the application of measures of administrative coercion.
An administrative process is a procedure regulated by administrative procedural norms for the resolution of individual cases by the relevant state bodies, their officials in the exercise of the functions of state power, as well as disputes arising between executive bodies, their officials and other subjects of administrative and legal relations .
Chapter 19. Administrative Law and Process
Administrative law- an independent branch of public law. Its subject is based on social relations arising in the process of organizing and exercising executive power, i.e. government controlled. Therefore, these relationships are called managerial.
In view of the legally imperious nature of the activities of the executive branch, management relations are characterized by:
a) legal inequality of the parties.
They are based on the administrative or other power subordination of one party to the other. They are dominated by the will of the subject of executive power;
b) organizational content.
They express the purposeful ordering influence of the executive branch on public relations in the process of organizing the execution of laws related to the management of the economy, socio-cultural development, administrative and political activities;
v) gratuitousness. By general rule they have no monetary value.
When the executive body performs strictly defined legally significant actions on a paid basis, legal inequality and the organizational nature of relations remain (for example, when obtaining a passport, license, etc.).
V subject of administrative law includes management relations associated not only with the implementation of executive power as a branch of the unified state power, but also the executive bodies of local self-government in their relations with citizens, various municipal organizations.
The subject of administrative law also includes relations of a managerial nature that arise in the system of legislative (representative), judicial bodies, prosecution bodies, in particular, in connection with the staffing of their apparatus, the management of its activities, etc.
Subjects of management relations there can be individuals and their various organizations: bodies of state, executive power and local self-government; state and municipal employees; commercial and non-profit organizations; their officials, etc.
The subject of administrative law is determined the specificity of the method of administrative-legal regulation of its relations. This method is based on the recognition:
a) legal inequality of the parties in which one party has power over the other;
b) the right that the adoption of a decision by the party vested with power, the choice of its option do not depend on the other party;
c) the rights of the party making the decision to ensure and control its implementation;
d) the possibility of the use of coercion by the authorized bodies for failure to comply with such a decision;
e) the imperativeness of legal regulation. The option or options for the conduct of the parties are established by administrative law.
Administrative law is understood as a set of legal norms governing management relations arising in connection with the organization and implementation of executive power in order to implement laws in the process of managing the economy, socio-cultural development, and administrative and political activities.
Administrative legal norm is a rule of conduct established by the state to regulate managerial relations arising in the process of organizing and functioning of the executive branch. The norms of administrative law establish the status of the subjects of the management process, the basis of which is the complex of their rights and obligations. The imperative nature of management determines the imperative nature of administrative and legal norms: they prescribe a certain option or options for the behavior of subjects of administrative law.
Administrative legal norms are subdivided into kinds according to various criteria.
Depending on the addressees, norms are allocated that establish the administrative and legal status of certain types of subjects of management relations: citizens, executive authorities, civil servants, etc.
According to the form of expression of the instructions contained in them, they are divided into binding, prohibiting, authorizing and stimulating.
Binding the norms contain a prescription for performers to perform the actions specified in this norm; prohibiting indicate the inadmissibility of performing the actions provided for by the norm; authorizing establish the ability of performers to act at their own discretion, to choose a version of their behavior within the limits permitted by the norm; stimulating determine the measures of material and moral impact aimed at ensuring the proper behavior of performers.
Depending on the legal specifics, there are:
a) material norms that determine the content of the rights, duties and responsibilities of subjects of administrative law;
b) procedural - providing for the procedure for their implementation.
A citizen is a priority subject of administrative law, because in the structure of public interest, expressed by this branch of public law, the pivot is to ensure the rights and freedoms of a citizen.
The rights and obligations of citizens in the field of administrative law are mainly derived from constitutional ones and are specified in many laws and by-laws.
a) administrative personality;
b) a set of rights and obligations enshrined in the norms of administrative law;
c) guarantees of the implementation of these rights and obligations, including their protection by law and the mechanism of protection by state and local authorities.
However, not all rights and obligations of a person and a citizen are derived from his constitutional legal status. Some are beyond this status and are established by specific regulations that correspond to the constitutional concept of the position of a person and a citizen in the Russian Federation. For example, the rights and obligations associated with driving vehicles, acquiring weapons, etc.
In the formation and implementation of this status, a significant role is played by executive agencies and local government.
Within the scope of their competence, they:
a) issue legal acts affecting the content of the status of citizens, entailing their acquisition of rights and obligations in a particular area (for example, the implementation of the right to education involves the issuance of an act of enrollment in an educational institution);
b) organize the implementation of laws that are directly related to the administrative and legal status of citizens;
c) help, assist citizens in the implementation of their specific subjective rights, for example, in matters of social protection;
d) protect the rights and freedoms of citizens.
In many cases, acts of state and local government bodies specify the rights and obligations established in general by constitutions and individual legislative acts. For example, the constitutional right to higher education is concretized not only by the RF Law of July 10, 1992 "On Education" (as amended on January 13, 1996), but also by the Model
regulation of the highest educational institution approved by the Government of the Russian Federation.
Government bodies, within their competence, directly establish certain rights and obligations of citizens, including those of an administrative and legal nature. For example, they are provided for by the Rules road traffic Of the Russian Federation, approved by the Government of the Russian Federation.
The administrative-legal status of citizens is determined primarily by the volume and nature of their administrative legal personality, which is formed by administrative legal capacity and legal capacity.
Under administrative capacity a citizen is understood as the possibility recognized by law for him to be a subject of administrative law, to have rights and obligations of an administrative-legal nature. It arises from the moment a citizen is born and ends with his death. The scope and content of the named legal capacity are established and changed with the help of the norms of administrative law.
The administrative legal capacity of citizens cannot be alienated or transferred. Its volume is changed only by law. For individual citizens, this legal capacity may be temporarily limited in cases and in the manner determined by law, for example, in connection with the commission of a criminal or administrative offense, for which the law provides for sanctions in the form of imprisonment, deprivation of special rights and other legal restrictions. Thus, the Criminal Code of the Russian Federation establishes as a punishment the possibility of deprivation of the right to hold certain positions or engage in certain activities.
Administrative law also establishes exceptional cases of temporary deprivation or restriction of certain rights for individual citizens for violations. So, the Code of the Russian Federation on Administrative Offenses provides for the possibility of depriving a citizen of the right to drive specially granted to him vehicle, hunting rights. Mode state of emergency suggests the possibility of introducing, in accordance with federal constitutional law, restrictions on the rights and freedoms of citizens, indicating the limits and duration of their validity.
The main feature of administrative legal capacity is that its implementation presupposes different conditions and nature of interaction with the system of executive power.
The system of executive power remains the most important area for the implementation of the administrative legal capacity of citizens, i.e. the ability to enter into administrative legal relations. At the same time, the other party in such legal relations is an executive body (official) or an organization or its representative, which has administrative and legal powers.
The implementation of administrative legal capacity is influenced by a variety of factual circumstances, the presence of which gives rise to the citizens of the corresponding subjective rights and obligations. For example, the law provides for conditions under which a citizen acquires the right to alternative military service. Such circumstances affect the content of administrative legal capacity.
The connection between the implementation of administrative legal capacity with certain real circumstances is due to the need to ensure public safety, health protection, the most correct use of the abilities and activity of citizens in social activities.
The administrative legal capacity of citizens serves as the basis for their administrative capacity, which is a necessary condition for the implementation of this legal capacity, as well as subjective rights and the duties of citizens in specific administrative legal relations.
Administrative capacity of a citizen- the ability recognized for him by personal actions: a) to acquire rights and obligations of an administrative-legal nature; b) implement them. This legal capacity also includes the ability of a citizen to bear responsibility for the offenses committed in accordance with applicable legal acts.
The moment when a citizen's administrative capacity arises is not uniformly and clearly defined by legislation. In full, it appears upon reaching the age of 18. However, the moment of the emergence of administrative capacity remains uncertain. In various fields, partial legal capacity can arise before the age of 18. Thus, persons who have reached the age of 16 are recognized as subjects of administrative offenses; the obligation of a citizen to obtain a passport arises upon reaching the age of 14.
Not all citizens of the Russian Federation have the same administrative capacity. This is largely determined by the peculiarities of managerial relations, in which the acquisition and implementation of the corresponding rights and obligations by personal actions presuppose the presence of a certain level of mental and mental development, life experience, the ability to give an account of the consequences of their actions, etc.
The rights and obligations of citizens included in the content of administrative legal capacity are varied. In cooperation with executive bodies, the rights to participate in the management of state affairs, to hold public events, to unite, to contact state bodies and local self-government bodies, to move, collect and disseminate information are first and foremost exercised; duty to preserve nature and
environment; take good care of natural resources; defend the Fatherland, etc.
The current legislation provides for various organizational and legal guarantees of the rights of citizens, both judicial and extrajudicial.
The influence of courts on strengthening the rule of law in the lawmaking and law enforcement activities of executive authorities, local self-government bodies and their officials is increasing. The legislation is consistently expanding the possibilities of judicial appeal against their legal acts. Courts consider complaints against actions and decisions that violate the rights and freedoms of citizens.
In accordance with the Constitution of the Russian Federation, the office of the Commissioner for Human Rights in the Russian Federation was established, acting on the basis of the Federal Constitutional Law of February 26, 1997 No. 1-FKZ. It is designed to help restore violated rights, improve legislation on human and civil rights, bring it in line with generally accepted principles and norms of international law, legal education on the issues of human rights and freedoms, forms and methods of their protection.
The role of government bodies, local self-government and their officials in the exercise of the rights and freedoms of citizens, the fulfillment of their duties is determined by the fact that they directly execute laws, and are also endowed with extensive jurisdictional powers, the use of which often concerns the exercise of the rights, freedoms and duties of citizens.
Guarantees of the rights of citizens. The most important element of the status of citizens is the organizational and legal guarantees of their rights and freedoms. They are classified into judicial and extrajudicial.
Courts consider cases that in one way or another affect human rights and freedoms (on administrative offenses, appeals against legal acts of executive authorities and local self-government bodies, their officials, etc.). Some legal acts and actions can be performed only on the basis of a court decision (restriction of the right to privacy of correspondence, entry into a home, etc.).
Protection of the rights and freedoms of citizens is a priority duty of executive authorities and local self-government bodies, their officials. Ensuring the implementation of the rights and freedoms of citizens, these bodies and officials, firstly, create (or participate in the creation) of the necessary material, organizational, legal conditions for the activities of bodies, enterprises and institutions for the exercise by citizens of their rights and freedoms; secondly, they resolve specific individual cases arising at the initiative of citizens (for example, in connection with their appeals). As already mentioned, the Constitution of the Russian Federation provides for the establishment of the position
Commissioner for Human Rights in the Russian Federation. The powers of the Human Rights Ombudsman related to the protection of the rights and freedoms of citizens are divided into two groups: a) to identify violations of rights - to conduct inspections on complaints, request the necessary materials for this, involve representatives of state bodies in inspections, etc .; b) to eliminate the identified violations.
The Commissioner is obliged to send to the bodies and persons in whose decisions or actions he sees violations of the rights and freedoms of citizens, his conclusion with recommendations on possible and necessary measures to restore violated rights. The response on the results of the examination of the opinion must be given to the Commissioner within one month.
The Commissioner may apply to the court with a statement in defense of rights and freedoms; to the competent state bodies with a request to initiate disciplinary or administrative proceedings or criminal proceedings against officials, in whose decision or actions are seen violations of rights and freedoms; to the court or to the prosecutor's office with a petition for verification of a final decision, court verdict, ruling or ruling of a court, or a judge's decision; to the Constitutional Court of the Russian Federation for violations constitutional rights and the freedoms of citizens by the law applied or to be applied in a particular case.
One of the activities of the prosecutor's office is the consideration and verification of applications, complaints and other reports on the violation of human and civil rights and freedoms. If violations are detected, measures are taken to suppress and prevent them, to bring to justice the perpetrators of the violation.
The defense of the rights and freedoms of citizens is carried out on a professional basis by the advocacy, as well as other non-governmental organizations: trade unions, societies for the protection of consumer rights.
A specific way to protect rights and freedoms is the right of citizens to appeal against actions and decisions that violate the rights and freedoms of citizens. Currently, the Law of the Russian Federation of April 27, 1993 "On Appealing Actions and Decisions Violating the Rights and Freedoms of Citizens" (as amended and supplemented from November 15, 1995) is in force. It enshrines the right of citizens to appeal in court collegial and individual actions (decisions) of state bodies, local authorities, enterprises, institutions and their associations or officials, civil servants.
The effect of the Law in relation to civil servants also applies to municipal employees in the event that they are equated by federal legislation with civil servants.
Actions (decisions) are subject to appeal, including the submission of information that has become the basis for actions (decision-making), as a result of which:
a) the rights and freedoms of citizens are violated;
b) obstacles have been created for the exercise by a citizen of his rights and freedoms;
c) the citizen has been unlawfully entrusted with any duty or he has been unlawfully brought to any responsibility.
A citizen has the right to appeal against the inaction of the mentioned bodies, enterprises, associations, officials, civil servants, which entailed such consequences. He can appeal against the above-mentioned actions (decisions), as well as the information that served for their commission, or both at the same time.
In the manner prescribed by the said Law, actions (decisions), the verification of which is attributed by law to the exclusive competence of the Constitutional Court of the Russian Federation, cannot be appealed; actions (decisions) in respect of which the legislation provides for a different procedure for judicial appeal. In this case, we are not talking about limiting judicial appeal, but only about the scope of the said Law, about various legal regimes of appeal to the court.
The law establishes an alternative appeal procedure. A citizen, at his own discretion, can file a complaint directly with the court or with a higher authority (official) in the order of subordination. The body (official) is obliged to consider the complaint within a month. If the citizen's complaint is denied or he has not received an answer within a month from the date of its submission, he has the right to file a complaint with the court.
A complaint may be filed by a citizen whose rights have been violated, or by his duly authorized representative, to the court at the place of residence or to the court at the location of the body (official) that violated the rights of the citizen.
With a complaint to the court, a citizen can apply to deadlines: within three months from the day when he became aware of the violation of his rights; one month from the date of refusal to satisfy the complaint by a higher authority (official) or from the date of the expiration of one month after the submission of the complaint, if the citizen has not received a written response to it. The complaint is considered by the court according to the rules of civil procedure.
The court, recognizing the contested action (decision) illegal, cancels the measures of responsibility applied to the citizen or otherwise restores his violated rights and freedoms. Having established the validity of the complaint, the court also decides the issue of the responsibility of the relevant subjects for actions (decisions) that led to the violation of the rights and freedoms of a citizen. In relation to civil servants, the court determines the measure of responsibility provided for
the laws on the liability of this civil servant, up to the submission of dismissal.
Responsibility can be assigned both to those whose actions (decisions) are recognized as illegal, and to those who provided information that became the basis for illegal actions (decisions) specified in the law, i.e. entailing violation of rights and freedoms, etc. Having recognized the contested action (decision) as lawful, the court rejects the complaint.
Executive agencies. These bodies are a kind of government bodies; their main purpose is to exercise executive power.
V system of executive authorities includes: a) federal executive bodies; b) executive authorities of the constituent entities of the Federation.
Structure federal bodies the executive branch is determined by the President of the Russian Federation. In accordance with the Decree of the President of the Russian Federation of May 17, 2000 No. 867 "On the structure of federal executive bodies" it includes the following links.
Government of the Russian Federation. The foundations of its legal status are determined by the Constitution of the Russian Federation and the Federal Constitutional Law of December 17, 1997 No. 2-FKZ "On the Government of the Russian Federation".
The government is the highest executive body of state power in the Russian Federation. It exercises the executive power of the Russian Federation and heads the unified system of executive power in the Russian Federation.
The Government of the Russian Federation is formed in accordance with the established procedure by the President of the Russian Federation, consisting of the Chairman of the Government of the Russian Federation, his deputies and federal ministers.
The Government of the Russian Federation is entrusted with the management of the work of federal executive bodies and control over their activities. It organizes the implementation of the domestic policy of the Russian Federation, regulates the socio-economic sphere; ensures the unity of the system of executive power in the Russian Federation, directs and controls the activities of its bodies; forms federal target programs and ensures their implementation; exercises the right of legislative initiative granted to him.
The Government of the Russian Federation has broad powers in various sectors and spheres of public life (economy, in the field of budgetary, financial, credit and monetary policy, ensuring the rule of law, the rights and freedoms of citizens, defense and security of the Russian Federation, etc.).
Federal ministry - a federal executive body called upon to carry out activities of various nature; to pursue state policy in the established area; manage the relevant area
activities; coordinate the activities of other federal executive bodies. For example, there are ministries: for atomic energy, internal affairs, health care, education, defense, etc.
The State Committee of the Russian Federation, the federal commission - federal executive bodies are called upon to carry out, on a collegial basis, intersectoral coordination on issues within their jurisdiction; functional regulation in a certain field of activity. For example, state committees: for fisheries, for standardization and metrology; commissions: by market valuable papers, energy.
The federal service, the Russian agency, the federal supervisors of Russia are federal executive bodies that exercise special (executive, control, regulatory, etc.) functions in established areas. For example, the Russian Navigation and Space Agency; Russian Shipbuilding Agency; Foreign Intelligence Service of the Russian Federation; federal Service tax police of the Russian Federation.
V system of executive authorities of the subject RF includes:
a) supreme body executive power;
b) other executive authorities.
The forms of executive authorities in the constituent entities of the Russian Federation are determined taking into account the historical, national and other traditions of the given constituent entity. Thus, in some subjects, governments act as the highest bodies, in others - councils of ministers, in still others - cabinets of ministers.
Among other executive bodies of the constituent entities of the Russian Federation there are ministries, state committees, departments, main departments, directorates, departments, etc.
The formation, formation and activities of the executive bodies of state power of the constituent entities of the Russian Federation are regulated by the Constitution of the Russian Federation, federal laws, as well as the constitution of the republic, the charter of the constituent entity of the Federation, laws and other normative legal acts of the constituent entities of the Federation.
Civil servants. The current legal acts do not contain general concept a civil servant, covering all their varieties: employees of state bodies, military personnel, employees of customs organizations, etc.
With regard to state bodies, the concept of a civil servant is formulated in the Federal Law of July 31, 1995 No. 119-FZ "On the Foundations of the Civil Service of the Russian Federation." Under this Law, not all persons holding positions in state bodies are recognized as civil servants. From this point of view, state and non-state positions are distinguished. Public positions are divided into three categories: "A", "B", "C".
Category "A" includes public offices established by the Constitution of the Russian Federation, federal laws, constitutions, statutes of the constituent entities of the Federation for the direct execution of the powers of state bodies (President and Chairman of the Government of the Russian Federation, ministers, etc.).
Category "B" includes government positions established in accordance with the legislation of the Russian Federation to directly ensure the exercise of powers by persons replacing public office category "A" (assistants to the President, Prime Minister of the Russian Federation, etc.).
Positions of categories "B" and "C" are recognized as positions of the civil service, and their substitutes are recognized as civil servants. According to this civil servants a citizen of the Russian Federation is recognized who, in accordance with the procedure established by law, fulfills the duties of a public office of the civil service for a monetary remuneration paid from the federal budget or from the budget of the corresponding constituent entity of the Federation.
Civil service positions of category "A" are not recognized as civil service positions, therefore, their occupants are not civil servants.
Content of the legal status of a civil servant constitute his rights, duties and responsibilities. They're in general view for all civil servants are defined by the Law "On the Fundamentals of the Civil Service of the Russian Federation". Other rights and obligations of civil servants, referred to in the literature as special, are established in relation to the peculiarities of the functions they perform by other laws and by-laws.
The general rights and obligations of a civil servant can be divided into two subgroups.
The first consists of duties and rights related to the essence of official activity, for example: to fulfill official duties in good faith; ensure the observance and protection of the rights and legitimate interests of citizens; execute orders, orders and instructions of higher-ranking officials in the order of subordination, given within their official powers except for illegal ones; maintain a qualification level sufficient for the performance of official duties; the right of a civil servant to familiarize himself with the documents defining his rights and obligations for the civil service position held; receive the necessary for execution job duties information and materials, etc.
The second subgroup is made up of service rights and duties accompanying the status of civil servants. Thus, they are obliged not to commit acts that undermine the authority of the public service; have the right to get acquainted at the first request with all the materials of their personal file, to demand that their explanations be attached to the personal file. The responsibilities and rights of this subgroup do not affect the content of the performance.
The Constitution of the Russian Federation establishes that citizens of the Russian Federation have equal access to public service (Article 32).
In order to increase the efficiency of the implementation of the civil service, legal acts and, above all, the Law "On the Fundamentals of the Civil Service of the Russian Federation" establish restrictions on admission to the civil service, as well as the civil rights of civil servants.
A citizen cannot be admitted to a public office in the following cases:
a) recognition by the court as incapable or partially incapacitated;
b) deprivation of him by the court of the right to hold public office in the civil service for a certain period;
c) the presence of a disease that interferes with the performance of official duties, if special requirements for the state of health are established for the relevant positions;
d) the presence of a close relationship or property with civil servants, if their service is associated with direct subordination and direct control of one another. Parents, spouses, their brothers, sisters, children, as well as brothers, sisters, parents and children of spouses are referred to persons who are in a relationship of close kinship or property;
e) refusal to go through the procedure for registration of admission to information constituting a state or other secret protected by law, if the service is associated with the use of such information;
f) the presence of citizenship of a foreign state, if access to public service is not regulated on a reciprocal basis by interstate agreements;
g) refusal to provide information to the tax authorities about the income received and property belonging to the applicant for the position on the right of ownership, which are the object of taxation.
Legal restrictions on civil servants are conditioned by the peculiarities of the civil service, which is inseparable from state power. Therefore, it is necessary to identify, in particular, the legal obstacles to the possible abuse of belonging to this power.
The established legal restrictions mainly consist in the fact that a civil servant is not entitled to:
a) engage in other paid activities, except for pedagogical, scientific and other creative activities;
b) be a deputy of the legislative (representative) body of the Russian Federation, similar bodies of its constituent entities and bodies of local self-government;
c) engage in entrepreneurial activity personally or through proxies;
d) be a member of the governing body commercial organization unless otherwise provided federal law or if he is not duly instructed to participate in the management of this organization;
e) be an attorney or a representative for third parties in a state body in which he is in the public service or which is directly subordinate or directly controlled by him;
f) use for non-official purposes the means of material, technical, financial and information support, other state property and official information;
g) receive royalties for publications and performances as a civil servant;
h) receive from individuals and legal entities remuneration related to the performance of official duties, including after retirement (gifts, loans, services, etc.);
i) take part in strikes;
j) use their official position in the interests of political parties, public, including religious, associations to promote attitudes towards them.
The established restrictions do not pursue the goal of infringing on the civil rights of civil servants and are aimed at ensuring the independence of their official activities, against corruption, and at creating normal conditions for the work of the state apparatus.
The civil service is terminated as a result of the dismissal of a civil servant on the basis and in accordance with the procedure established by legal acts. It is possible on the initiative of the civil servant himself and the competent state body or official.
The grounds for dismissal on the initiative of a state body or official are provided for by labor legislation. A number of specific grounds due to the peculiarities of entering the civil service and its passage are established by the Law "On the fundamentals of the civil service of the Russian Federation." The vast majority of the grounds specified here are not related to the attitude of a civil servant
to the performance of his official duties. These include: dismissal due to reaching the retirement age established for the replacement of the civil service; termination of the citizenship of the Russian Federation; failure to comply with the restrictions set for civil servants; the presence of a disease that interferes with the performance of official duties.
At the same time, according to the Law, the grounds for dismissal are failure to comply with the obligations established for civil servants by this Law; disclosure of information constituting state or other secrets protected by law. As it was said, the list of duties of civil servants is given in this Law. The nature of these duties is defined in such a way that failure to comply with them can serve as a general basis for termination of public service.
The age limit for civil service is 60 years. Then, the authorized body or official may extend the period of stay in the civil service, but each time for no more than one year. Renewals beyond age 65 are not permitted. In the future, a civil servant can work in a government agency on the terms of a fixed-term employment contract.
Legal acts of management of executive authorities are a kind of legal acts that represent an official managerial decision of the competent executive authorities, entailing certain legal consequences: the establishment, change, termination of the rule of law or specific legal relations. This is one of the legal forms of exercising executive power.
It is customary to subdivide legal acts of management into types according to various criteria.
By their legal nature, they are divided into normative and individual, which are often referred to as administrative.
A regulatory legal act is a written official document adopted in a certain form by an authorized executive body within its competence and aimed at establishing, changing or abolishing legal norms. Its main feature is that it contains the legal rules governing the relevant relationship. Like norms, an act can be permanent or temporary, extend to a personally indefinite circle of subjects, etc. A regulatory legal act of management may contain legal norms of both administrative and other branches of Russian law.
An individual (administrative) act is a unilateral legal order of an authorized executive body addressed to a specific person, aimed at resolving a specific issue. This legal form implementation of norms
law, which is a legal fact, entailing the emergence, change, termination of administrative, civil, labor and other specific legal relations.
It is important to divide legal acts of management into forms. Their forms are varied. They can be taken in the form decisions, orders, orders, instructions, rules, regulations, etc. Each executive body has the right to issue acts only in a certain form, provided for by an act establishing its status: the Constitution, charter, statute. Thus, the Government of the Russian Federation issues decrees and orders. At the same time, decisions are of a normative nature, and orders are made on operational issues and are not of a normative nature.
Federal ministries and other federal executive bodies most often issue acts in the form of orders, instructions, although some of them may adopt decrees, rules, regulations, etc.
The highest official of a constituent entity of the Federation issues decrees, decisions and orders, and other executive bodies- orders, instructions, etc.
The procedure for the official publication and entry into force of legal acts of federal executive bodies is determined by the Federal Constitutional Law "On the Government of the Russian Federation", as well as by the Decree of the President of the Russian Federation of May 23, 1996 No. 763 "On the procedure for the publication and entry into force of acts of the President of the Russian Federation, Of the Government of the Russian Federation and normative legal acts of federal executive bodies ".
Administrative liability is a type of legal liability, which is expressed in the application by an authorized body or an official of an administrative penalty against a person who has committed an administrative offense.
Administrative responsibility is characterized by a complex of the following features:
administrative responsibility is established by the laws of the Russian Federation and laws of the constituent entities of the Federation that do not contradict them. The main act regulating responsibility for administrative offenses is the RF Code of Administrative Offenses, enacted from July 1, 2002. Its effect extends not only to individuals, but also to legal entities for the offenses indicated therein;
the basis for administrative responsibility is the commission of an administrative offense, which is understood as an unlawful, guilty (intentional or negligent) action or inaction of an individual or legal entity, for which the said Code or the laws of the constituent entities of the Federation establish administrative responsibility;
administrative penalties are envisaged for administrative offenses. An administrative penalty is a measure of responsibility for an administrative offense. The types of administrative punishments are: warning; administrative penalty; compensated seizure of the instrument of committing or the subject of an administrative offense; confiscation of the instrument of committing or the subject of an administrative offense; deprivation of a special right granted to an individual (the right to drive a vehicle, the right to hunt); administrative arrest; administrative expulsion from the borders of the Russian Federation of foreign citizens and stateless persons; disqualification.
The essence of these penalties and the rules for their imposition are determined by the Code of Administrative Offenses of the Russian Federation.
The Code of Administrative Offenses of the Russian Federation proceeds from the need to individualize the sentencing. This means, in particular, that when imposing a punishment, the nature of the offense, the identity of the perpetrator, the property status, the circumstances that mitigate and aggravate responsibility are taken into account.
An administrative penalty can be imposed no later than two months from the date of the offense, and only for certain types of administrative offenses specified in Part 1 of Art. 4.5 of the Administrative Code, - no later than one year from the date of the offense. In the case of a continuing administrative offense, the indicated periods are calculated from the date of detection of the offense. In case of refusal to initiate a criminal case or its termination, if there are signs of an administrative offense in the actions of the offender, punishment may be imposed within the "specified time limits, calculated from the date of the decision to refuse to initiate a criminal case or to terminate it;
subjects of administrative responsibility there can be both individuals (sane persons who have reached the age of 16) and legal entities;
administrative penalties are imposed by a wide range of authorized bodies and officials: executive power, local government, as well as courts (judges). Their competence is established by the Code of Administrative Offenses of the Russian Federation;
administrative penalties are imposed by bodies and officials on offenders not subordinate to them (for example, by a traffic police inspector on offenders of traffic rules, etc.);
measures of administrative responsibility are applied in accordance with the law governing proceedings in cases of administrative offenses (Code of Administrative Offenses of the Russian Federation);
application of administrative responsibility does not entail a criminal record. A person who has been assigned an administrative punishment is considered to have been subjected to this punishment within one year
from the date of completion of the execution of the decision on the imposition of punishment.
Administrative process- the procedure for resolving individual cases arising from the implementation of executive power, regulated by administrative procedural norms, with the aim of strengthening the rule of law in society. This means, first of all, the resolution of disputes (for example, on the legality of an official's actions) and the application of measures of state influence against an individual and legal entity. These types of cases are cases of administrative offenses; appeal against the actions of officials; land disputes; on consumer protection; on violations of antimonopoly legislation, etc.
The subjects resolving individual cases within the framework of the administrative process may be executive authorities and local self-government bodies and their officials, as well as courts (judges); for example, the courts resolve complaints against decisions on the application of measures of administrative responsibility, etc.
The administrative process includes a set of administrative proceedings to resolve specific cases, regardless of which branch of substantive law they relate to.
Among them, an important place is occupied by proceedings on cases of administrative offenses. It is regulated by the Code of Administrative Offenses of the Russian Federation.
The objectives of this production are the timely, complete and objective clarification of the circumstances of each case, its resolution in strict accordance with the legislation, ensuring the execution of the issued resolution, as well as identifying the reasons and conditions conducive to the commission of administrative offenses, preventing offenses, educating citizens in the spirit of observance of laws, strengthening legality.
In Art. 24.5 of the Code of Administrative Offenses of the Russian Federation named the circumstances in the presence of which the proceedings in the case of administrative offenses are excluded. This is the absence of an offense event, the failure of a person at the time of the offense to reach 16 years of age, the insanity of an individual who committed an unlawful act or omission, etc.
Proceedings can be carried out: a) in a simplified manner, without drawing up a protocol, and the penalty is imposed and executed simultaneously (for example, the recovery of a fine for free travel in public transport). Cases when a simplified production procedure is allowed are provided for in Art. 28.6 of the Administrative Code of the Russian Federation; b) in an order that includes several stages: initiation and investigation of an administrative offense case; consideration of a case on an administrative offense; making a decision on an administrative offense; reconsideration of an administrative offense case.
Grounds for initiating proceedings is the commission of an administrative offense, which, as a rule, is drawn up by a protocol on an administrative offense. The prosecutor makes his decision to initiate a case on an administrative offense in the form of a resolution. The protocol on an administrative offense must be drawn up in the prescribed form, contain mandatory details. It indicates: the date and place of drawing up the protocol, position, surname, initials of the person who made the protocol, etc. (Article 28.2 of the Administrative Code of the Russian Federation). In the course of investigating a case, evidence is collected and recorded, circumstances that may serve as a basis for terminating or suspending the proceedings are identified.
An important stage is the consideration of the case. The Code of Administrative Offenses of the Russian Federation defines the range of subjects authorized to consider cases of administrative offenses: judges (justices of the peace), commissions for juvenile affairs and protection of their rights, authorized executive bodies, their institutions, structural divisions and territorial bodies, other state bodies (internal affairs bodies, tax authorities, customs authorities, state labor inspectorates and many others), administrative commissions.
The law defines the procedure for preparing for the consideration of the case, the place and procedure for its consideration.
Usually the case is considered at the place of its commission. Cases about certain types of offenses can be considered at the place of their commission or at the place of residence of the offender (for example, about drinking alcohol in public places or appearing in public places in a state of intoxication).
Administrative commissions and commissions on minors' affairs and protection of their rights consider cases at the place of residence of the offender.
As a rule, the case is subject to consideration within 15 days from the date of receipt by the body (official) competent to consider the case, the protocol (resolution) on an administrative offense and other materials. This period may be extended by no more than one month.
Cases of administrative offenses, the commission of which entails administrative arrest, are considered on the day of receipt of the protocol on the administrative offense and other case materials, and in relation to a person subjected to administrative detention - no later than 48 hours.
The case of an administrative offense is considered in the presence of the person brought to justice. In the absence of this person, the case can be considered only in cases where there is evidence of his timely notification of the place and time of the consideration of the case and if he has not received a request to postpone the consideration of the case.
Based on the results of the consideration of the case, the body (official) issues a resolution on the appointment of an administrative penalty or on the termination of the case by proceedings, if there are circumstances precluding the proceedings on the case (Article 24.5 of the Administrative Code of the Russian Federation), or when an oral comment is announced to the violator, or the materials are submitted for public consideration. , prosecutor, authority preliminary investigation or inquiries.
The decision on the case is announced immediately, a copy of it is handed over or sent within three days to the person in respect of whom it was issued, as well as to the victim at his request.
The stage of appealing and challenging the order is optional.
The decision in the case of an administrative offense may be appealed against by the person in respect of whom it has been passed, and by the victim. The procedure for appealing, the timing of the consideration of complaints, the types of decisions taken on the complaint are determined by Ch. 30 of the Code of Administrative Offenses of the Russian Federation.
Academy of Management under the President of the Republic of Belarus
APPROVED
Vice Rector for Academic Affairs
S.V. Shavruk
____________________
(date of approval)
Registration No. UD -______ / uch.
Administrative law and process
Curriculum for the specialty
Public administration and law
CREATED BY:
D.E. Tagunov - candidate legal sciences, Associate Professor of the Department of Administrative Law of the Academy of Management under the President of the Republic of Belarus
CM. Zabelov - Candidate of Legal Sciences, Associate Professor of the Department of Administrative Law of the Academy of Management under the President of the Republic of Belarus
A.Yu. Starokaznikov - Master of Laws, Lecturer of the Department of Administrative Law of the Academy of Management under the President of the Republic of Belarus
REVIEWERS:
M.F. Chudakov - Head of the Department of Constitutional and international law Academy of Management under the President of the Republic of Belarus, Candidate of Legal Sciences, Professor
A.N. Sukharkova - Candidate of Legal Sciences, Professor of the Department of Administrative Law of the Academy of the Ministry of Internal Affairs of the Republic of Belarus
Department of Administrative Law of the Academy of Management (Protocol No.__ dated "___" _________ 2010);
Educational and Methodological Commission of the Faculty of Management of the Institute of Management Personnel (minutes No.__ dated "___" _________ 2010);
Scientific and Methodological Council of the Academy of Management under the President of the Republic of Belarus (Protocol No. __ dated "___" _________ 2010)
Responsible for the editorial board: D.E. Tagunov
Responsible for the issue: D.E. Tagunov
I. EXPLANATORY NOTE
Administrative law occupies a special place in the system of legal regulation, since it is a necessary and important tool for managing social processes in society. It has the corresponding boundaries of legal regulation - namely: the activities of the state executive power of all ranks, public relations of a managerial nature that develop in this area, internal organizational activities other state bodies associated with the management function, as well as external organizational relations of non-governmental organizations, institutions and enterprises. Administrative law covers a wide range of social relations that arise in connection with the implementation of its management functions in the course of the activities of executive authorities.
In the context of managerial, political and socio-economic reforms associated with the development and formation of market relations in the Republic of Belarus, the role of administrative law becomes more significant, since its norms regulate and protect a significant part of the relations arising between citizens and executive authorities or their officials. by persons. In this regard, administrative and legal regulation is of particular importance, since with its help the system of executive authorities is consolidated and developed, which makes it possible to ensure the implementation of constitutional principle integrity and unity of the system of state power.
Administrative law – one of the most difficult legal disciplines. In the process of studying it, students have whole line difficulties, both objective and subjective. The most significant of these are: a huge and constantly changing normative base, the limited number of classroom lessons in this discipline, the imperfection of modern textbooks and teaching aids, many students lack the skills of independent work with scientific literature and regulations.
The curriculum is designed for 126 hours, of which for full-time education: 72 hours – lectures, 34 hours - practical training, 20 hours - seminars; for correspondence courses: classroom: 16 hours - lectures, 8 hours - practical training, 4 hours - seminars; 60 hours - guided independent work.
The purpose of teaching and studying the discipline is to form students' knowledge about legal content public administration, tasks, place and role of public administration bodies in its implementation, as well as the organization of legal regulation of social relations that develop in the process of executive and administrative activities.
The main objectives of the discipline are:
· Formation of students' knowledge about the essence of administrative law as the law of public administration;
· Mastering by students of the theoretical and methodological base of administrative law;
The formation of students' skills to correctly apply the theoretical provisions of administrative law to specific life situations;
· Formation of students' skills in working with normative legal acts;
The formation of skills of the correct qualifications of certain illegal actions in the field of public administration;
· Development of students' creative attitude to the studied material, their acquisition of professional skills and abilities, an increase in the level of independent work with the necessary control from the teachers.
As a result of mastering the discipline "Administrative law and process" the student must
know:
Basic theoretical and methodological concepts of modern administrative law as a branch of law and science;
Administrative and legal framework legal status subjects of state administration;
Administrative and legal basis for the application of forms and methods by authorized entities in the process of public administration;
Fundamentals of Administrative Responsibility and Proceedings in Cases of Administrative Offenses;
Administrative and legal basis for the legal status of individuals and legal entities;
Administrative and legal foundations of state management of economic, political and social relations in the Republic of Belarus;
be able to characterize:
· The system and content of administrative and legal norms governing individual legal relationships that develop between subjects in the process of public administration;
be able to analyze:
· Features of administrative and legal relations in the context of modern transformational processes in society;
· The legal nature of measures applied by state bodies in the process of public administration;
· Problems of legal regulation of the main legal institutions administrative law;
to get skills:
· Work with sources of administrative law;
Use of knowledge about the essence and content administrative legal relations, the rights and obligations of government bodies, on the procedure for the activities of government bodies and officials.
The discipline "Administrative law and process" is based on the preliminary study by students of social, humanitarian, economic, management and legal disciplines ( general theory law, constitutional, criminal and civil law), provided by the curriculum for the specialty and allows, in combination with other disciplines, to prepare highly qualified specialists in the field of public administration and law.
Method of teaching academic discipline is based on a combination of theoretical and practical training supplemented by independent work of students with literature and regulatory legal acts.
The study of the discipline has certain difficulties. They are connected with the fact that the administrative legislation consists of many normative legal acts, most of which are subject to constant changes. Therefore, only some of the main sources are given in the list of normative literature. For the successful mastering of the discipline, the program suggests using a more extensive normative (taking into account recent changes) and special literature. Seminar plans may include additional sources.
Topic 1. Administrative law as a branch of law, science and academic discipline
The concept of administrative law, its place in the legal system. The Republic of Belarus. The subject of administrative law. Public relations governed by administrative law. Management relations: concept and main features. Classification of public relations that constitute the subject of administrative law
Administrative law method, concept and characteristics. Its difference from the civil law method.
System and basic institutions of administrative law. Definition of administrative law as a branch of the legal system of the Republic of Belarus.
State, current trends in the development of administrative law as a branch of law, science and academic discipline. The role of administrative law in solving economic, socio-cultural and administrative-political problems.
Full-time education