The subject of administrative law.
The subject of administrative law is a system of social relations governed by administrative and legal norms. The subject of administrative law includes five constituent parts.
Firstly, these are social relations arising in the process of the implementation of executive power, the implementation of state administration at all its hierarchical levels. Secondly, these are intra-organizational relations of all state bodies, which are basically the same, similar, and the same type regardless of where they are carried out. : in the executive branch, legislative or judicial. Thirdly, the subject of administrative law includes the functioning of state control, which is carried out throughout Russian Federation on behalf of the state, being endowed with state-power powers of a federal nature. Fourthly, the subject of administrative law also covers the activities of courts and judges in considering cases of administrative offenses... Fifth, the subject of administrative law can be attributed to social relations arising in the activities of public associations, to which the state has transferred some of its state and power powers.
Administrative law is a branch of Russian law. Communication with other industries.
1) Administrative law as a branch of law is a set of norms, rules of conduct established or sanctioned by the state, its authorized authorities, officials, provided with measures of state coercion, in order to regulate managerial relations arising in the sphere of activities of executive authorities, public administration, as well as in the activities of other state authorities and their apparatuses, in the activities of non-governmental organizations legally authorized to carry out managerial functions.
Administrative law as a branch of legislation is a set of legal norms and rules governing the behavior of subjects of legal relations in the process of exercising their rights and obligations in the sphere of activities of executive authorities (state and local government), public administration, their officials and managerial relations arising from implementation of other forms state power: legislative, institute of presidency, judiciary, prosecution bodies of the Russian Federation, the Accounts Chamber of the Russian Federation, the Central Bank of Russia, etc.
2) Administrative law closely interacts with constitutional law... Administrative law details and concretizes t normconstitutional law, determining the mechanism for their implementation. A number of fixed in Ch. 2 of the Constitution of the Russian Federation, the rights, freedoms and duties of citizens of the Russian Federation form the basis of their administrative legal status.
Administrative law is closely related to administrative procedural law... Administrative procedural rules are providing for administrative and material rules. For example, as part of the implementation of the material rights of citizens to arms, the norms of administrative procedural law determine the procedure for issuing a license to acquire weapons.
Interaction criminal law is determined by the fact that the norms of administrative law determine which acts are administrative offenses.
Interaction civil law is explained by the fact that, for example, the exercise of the rights of citizens to engage in entrepreneurial activity is associated with the need for state registration with the Federal Tax Service. The norms of administrative law determine the rules for the transfer and seizure of property. And the norms of civil law regulate the relations of ownership, use and disposal of property.
Interaction of administrative and administrative procedural law with financial law manifests itself in the fact that with the help of administrative and administrative procedural norms, licensing of all types professional activity on the securities market.
Interaction land law due to the fact that a significant part of the relationship attributed to the subject land laware governed by the norms of administrative law.
Interaction labor law due to the fact that in the field of labor protection there are state inspections labor, performing the functions of control and supervision over the observance of labor legislation and labor protection by organizations and individuals. In the course of such control, officials of the Federal Labor Inspectorate can bring the guilty subjects to administrative responsibility.
The relationship of administrative law with family law due to the fact that according to Art. 30 of the Family Code of the Russian Federation, marriage is concluded only in the civil registration authorities in the manner determined by the Federal Law "On Civil Status Acts". Civil registration is carried out in the justice authorities of the Russian Federation.
3. System of administrative law, sub-sectors and institutions.
The system of the branch of administrative law is a set of norms, rules of administrative law, interrelated and interdependent and forming a specific information and legal unity, ensuring effective legal regulation of management relations in the sphere of activities of executive authorities, public administration, as well as relations in the field of management activities carried out by others government bodies and their service staff and other subjects of administrative law authorized by law.
The system of the branch of administrative law includes two main subsystems - General and Special parts, which, in turn, can be subdivided into smaller subsystems.
- Public administration, executive authorities;
- AP as a branch of law, a scientific branch of knowledge and an academic discipline;
- Subjects of administrative law;
- Forms and methods of carrying out the activities of executive authorities, public administration;
- Administrative offense and administrative responsibility;
- Administrative jurisdiction;
- Administrative process and types of administrative proceedings;
- Legality and discipline in the activities of executive authorities, public administration.
Special part:
- Administrative and legal regulation in the field economic relations;
- Administrative and legal regulation of relations in the socio-cultural sphere;
- Administrative and legal regulation of public administration in the administrative and political sphere;
- Administrative and legal regulation in other areas.
- The main forming link of a single subject of administrative legal regulation is the managerial nature of relations arising in all these spheres and areas of state activity.
Among the main institutions of administrative law the following components can be distinguished. This is an institution public service, government bodies, municipal authorities, administrative responsibility, the institution of property protection through administrative and legal norms, many institutions located in a special part of the Code.
Administrative law is, first of all, a set of legal norms regulating certain social relations that are the subject of the industry. From the theory of law, we know that the branch of law is not a mechanical set of norms, but a full-fledged independent system, characterized by the unity of the subject, method, principles of legal regulation and some other features.
Administrative law is no exception to this rule. However, the systematization of the norms of administrative law is largely complicated by the role and place of the industry in legal system Russia. The fact is that administrative law, as noted by most specialists, is one of the central branches of the system of Russian law. It has already been said above that the norms, principles, method of administrative law are the basis for most of the modern branches of the law of the Russian Federation. In addition, administrative law has the widest range of regulated relations. These circumstances lead to the fact that of all branches of Russian law, it is administrative law that is the most complexly organized branch.
First of all, this is manifested in the fact that in administrative law, substantive and procedural norms coexist, which is not typical for similar large branches of law, such as constitutional, civil and criminal law. The norms of substantive administrative law establish the system of government bodies, their competence, the structure of each of them, as well as the rights and obligations of citizens and legal entities; procedural, however, determine the procedure for the implementation of many norms of the first group, establish the procedure for their implementation in the field of management.
Over time, most branches of law have separated from their system separate procedural branches (for example, civil procedural law and criminal procedural law), others use the developments of the corresponding procedural branches or procedural norms of administrative law. Some administrativeists are inclined to separate from the system of administrative law a separate branch (sub-branch) of administrative procedural law * (50). Sometimes procedural norms are allocated in a special part of administrative law, along with the traditional general and special parts * (51).
However, the procedural norms of administrative law are so varied and diverse that they can only conditionally be combined into a separate independent institution. It will be united by a single institutional affiliation and procedures for bringing to administrative responsibility, and procedures for exercising various kinds of powers of government entities in the process of exercising their powers, and various licensing and legalizing procedures, and many other procedures, orders, rules, etc. ...
In addition to procedural rules that complicate the system of administrative law by their presence, a large number of disputes are also caused by the structure of the general and special parts of administrative law, as well as the very number of allocated parts of the industry. It is obvious that the general part of the industry should unite those norms and institutions that apply to all areas of legal regulation of this industry.
These include norms on the status of subjects of the branch of law, on branch principles of legal regulation, norms on responsibility, procedural norms, etc. At the same time, many authors (their absolute majority) include in the structure of the general part of administrative law also norms on the concept, methods, forms and general principles of public administration, as well as norms of the institution of public service.
It should be noted that the traditional Soviet administrative law, as part of the general part of administrative law, distinguished:
norms defining the characteristic features and consolidating the principles of Soviet state administration;
norms defining the legal status of government bodies, forms of their activity, especially management acts;
civil service regulations;
norms defining the status of managed objects (enterprises, institutions and organizations, their various constituent parts);
norms on the legal status of public organizations and bodies of public initiative;
norms on the legal status of citizens;
norms on measures of persuasion and coercion in public administration, including norms on administrative responsibility, proceedings on cases of administrative offenses;
norms on how to ensure the rule of law in the Soviet state administration.
A special part of administrative law, according to the views of that period, which are largely relevant today, includes:
norms governing public administration in the areas of planning, pricing, finance, credit, accounting and other types of intersectoral (functional) activities;
norms governing public administration in sectors and groups of sectors of the national economy, social and cultural construction and administrative and political activities. * (52)
The principles of systematizing the norms of administrative law and, in particular, combining the norms into general and special parts, differ significantly among modern specialists.
So, D.N. Bakhrakh points out that the general part includes general regulatory and protective norms and therefore, in turn, is divided into two groups of norms: general regulatory and general protection. A special part consists of special regulatory and protective norms of law that operate in certain areas of operation administrative authority... In this regard, the author includes in the general part two groups of institutions, the first of which consists of institutions that regulate the administrative and legal statuses of individual subjects of law; administrative and legal statuses of elements of public administration (institute of public service, etc.); administrative and legal statuses of state enterprises, institutions; administrative and legal statuses of non-governmental organizations; forms and methods, methods of power influence of state administration on subjects of law. The second group consists of institutions that ensure the legality of the executive branch; regulating coercion under administrative law (institution of administrative responsibility, etc.).
In the special part of administrative law D.N. Bakhrakh identifies four sub-sectors that unite the norms regulating the security of citizens, society, the state, administrative and political activities, organizational and economic activities of the state administration, socio-cultural activities of the state administration, its implementation of social programs, the activities of the state administration on the organization and implementation of political, ecological and other relations with other countries (external relations) * (53).
B.N. Gabrichidze and A.G. Chernyavsky, for his part, include in the general part of administrative law norms on subjects of administrative law, administrative-legal forms and methods of activity of executive bodies, institutions of administrative offenses and administrative responsibility, administrative and legal aspects of the status of the judiciary, the Prosecutor's Office of the Russian Federation, and the legal profession. The special part, according to these authors, should include two sub-parts, one of which combines the norms aimed at legal regulation of the foundations of sectoral management (economy, in the field of social and cultural construction, in the field of administrative and political activity), and the other - norms in the field intersectoral management. Administrative and procedural law is separated into a special - third - part of the industry. * (54)
N.M. Konin is divided into two large groups according to the scope of the administrative law norm. One group of norms operates on the scale of the entire sphere of implementation of state executive power, all sectors and spheres of public administration and establishes: general legal basis, conditions and procedure for the formation of all executive authorities, definition and consolidation of their competence; general rules for admission to civil service and its passage; general grounds, conditions and procedure for bringing the relevant subjects to disciplinary or administrative responsibility, etc. Another group of administrative and legal norms operates only in specific sectors and spheres of implementation of state executive power (public administration): special rules for the organization and activities of power ministries and departments, in contrast to central executive bodies of an economic and socio-cultural profile; special rules for entering the civil service in the internal affairs bodies, tax police, customs authorities, etc .; specific rules for bringing employees of the above-named bodies to disciplinary and administrative responsibility and many other administrative and legal norms of a sectoral scale and nature. * (55)
Yu.A. Tikhomirov generally tends to think that when defining the subject and system of administrative law, it is advisable to abandon its traditional division into general and special parts due to their weak normative structuredness. In his opinion, the branch of administrative law can be divided into the following sub-branches: a) normative and regulatory (subject of administrative law, areas of regulation, principles, norms, offenses); b) executive authorities; c) public service; d) administrative and legal regimes; e) administrative process, legality in management; f) organization of public administration; g) information law; h); legal regulation of standards * (56).
So, from all of the above, it follows that the systematization of administrative law norms is carried out mainly according to two main criteria: according to the scale of application and according to the unity of the subject of legal regulation.
According to the first of these criteria, administrative and legal norms are divided into two parts: general and specific. Any allocation of special and other additional parts in the structure of the industry, in our opinion, is a violation of the classification criterion, since all norms of administrative law operate either on the scale of the entire industry, or in one of the areas of public relations regulated by administrative law.
The second criterion implies the integration of administrative law into institutions and sub-branches of administrative law. In this case, the institution is the most fractional systemic unit of the industry after the rule of law and unites such rules that regulate any one fairly particular spectrum of administrative and legal relations.
It is noteworthy that the institution of administrative law can contain both the norms of only one of the parts of the industry, and the norms of both parts of administrative law. So, the institution of civil service should be ranked among the latter, since within the framework of this institution there are both norms characterizing the legal status of one of the types of subjects of administrative law, and norms that determine the regime organization of management in the field of relations between the state and its employees.
Separate norms and entire institutions of administrative law can be combined on the same basis into whole subsectors. Attention should be paid to the fact that the traditional institutional division of the norms of a special part of administrative law for a long time deprived the Soviet administrative law of separating independent subsectors. However, the objectively existing features of the principles and methods of legal regulation of individual blocks of public relations within the framework of a single subject of administrative law have led to a fairly active isolation of the norms and institutions of a special part of the industry in a sub-industry, some of which at one time became the prototype of some new complex branches of the Russian legal system (for example, financial law, the rights social security, land law, environmental law, etc.).
The formation of the sub-branches of administrative law is not completed, their name, as well as the individualization of the subject of legal regulation are disputable, however, repeated attempts to create independent training courses on private issues of administrative law indicate an objective process of fragmentation of administrative law into sub-branches.
Speaking about the system of administrative law, one should not confuse it with the system of administrative legislation, which is even more fragmented and extensive. There are many things that unite these systems, however, there is no automatic "superposition" of one system on another. This is due to the fact that the norms of law, systematically combined into institutions and subsectors or parts, are enshrined in a variety of sources of law.
Administrative legislation consists of separate regulatory legal acts of various legal force and the level that enshrines the norms of administrative law in an arbitrary order, from the point of view of the industry system. However, in working with this scattered material, considerable assistance is provided by theoretical developments in the field of forms of administrative and legal regulation, in particular, the concept of an administrative and legal regime. As a rule, a logically and normatively interconnected set of normative legal acts are the sources of a separate administrative and legal regime.
Among the main institutions of administrative law are the following:
institute of public service;
institute of Public Administration Bodies;
institute of Municipal Administration and Municipal Service;
institute of administrative responsibility;
institution of property protection by administrative and legal means;
many subject institutions of a special part (institute of state border protection, institute of the legal profession and notary, institute of enforcement proceedings, institute of privatization, institute of the licensing system, etc.).
In the structure of the industry, there are still such large subsectors as:
information law;
customs law;
licensing law;
notarial law;
construction law;
police law, etc.
It should be noted that the importance of systematizing the norms of the branch of law, and especially administrative law, is enormous, since it allows not only methodologically building a coherent system of interrelated industry norms, but also determining their hierarchy, establishing proportions in the formation of certain segments of the system, ensuring the harmonious development of the industry for by introducing new and abolishing old structural elements.
The administrative law system consists of separate administrative rules law, institutions and subsectors of law, closely interconnected.
The systematic nature of law characterizes it as a coordinated unity of norms, institutions, branches, covering various aspects of society and people's relations with a regulating influence.
In terms of their content and scope, legal norms are grouped by branches and institutions of law, forming an integral system.
The system of law is internal organization law, expressed in the unity and consistency of legal norms, which are concentrated in relatively independent complexes.
A branch is the main subdivision of the legal system, a set of legal norms regulating a significant range of homogeneous social relations and united by a common subject and method.
Sub-industry - an ordered set of related institutions of the same branch of law.
The institution of law is a separate complex of legal norms that are a specific element of the branch of law and regulate a small circle of homogeneous social relations.
The system of administrative law is usually divided into two parts: general and special. The general includes the norms covering management as a whole, and the special part consists of the norms that operate within certain areas of the executive branch.
The general part includes institutions:
Establishing the administrative and legal status of citizens (individual subjects of law) and non-governmental organizations;
The regulatory framework for the organization and activities of the executive branch (government apparatus);
Ensuring the legality of the executive branch;
Governing coercion under administrative law.
A special part includes institutions that regulate:
Ensuring the safety of citizens, society, the state, as well as administrative and political activities;
Organizational and economic activities;
Socio-cultural activities;
The activities of the state administration on the organization and implementation of political, economic and other external relations.
The traditional structure of the administrative law system is preserved in all published textbooks, books and articles on administrative law. The stability of the general part of administrative law can be explained by the continuity of its main elements and means of influence.
It is necessary to distinguish between the system of administrative law and the system of administrative procedural legislation. Basically, they coincide - according to target orientation, according to the principles of construction, according to structural and regulatory divisions. The system of legislation is a structurally ordered array of existing administrative and legal acts. The system of administrative law, being a reflection of the science of administrative law, serves as a conceptual and normative orientation for the system of legislation.
The branch of administrative law can be divided into the following sub-branches: a) regulatory and structural (subject of administrative law, areas of regulation, principles, norms); b) executive authorities; c) public service; d) administrative and legal regimes; e) administrative process, legality in management; f) organization of state administration in spheres and industries.
Sub-branches of administrative legislation include:
a) "Executive authorities" with the allocation of the institutions "Federal executive authorities (general issues)", "Federal ministries", "Other federal bodies state power "," Executive authorities of the constituent entities of the Russian Federation (general issues) "," Types of executive bodies of the constituent entities of the Russian Federation ". Note that in the corresponding classifiers of republics, regions, etc., more detailed classifications of their organs are possible;
b) "Civil service (general issues)" with the allocation of institutions "Civil service in federal government bodies"," State service in state bodies of the constituent entities of the Russian Federation "," State service in government agencies and enterprises ";
c) "Administrative and legal regimes" with the institutions "State of emergency", "Martial law", "Customs regime", "Functional regimes";
d) "Registration and legalization activities" by the institutions "State Registration", "Licensing", "Standardization", etc.
e) "Public administration in the spheres of public life" with the institutions "Delimitation of functions between the bodies of the Russian Federation and the bodies of its subjects", "Competence of the executive authorities", "Decision-making", etc. The institutions of this sub-branch are reproduced in a specific way in the headings of the classifier devoted to other branches of legislation (in the field of economics, nature protection, education, culture, defense, etc.);
f) "Control and supervision activities" with the institutions "Accounting", "Control", "Supervision".
A number of institutions of administrative law and legislation can be subdivided into sub-institutions. But this division does not always coincide for them.
Within the framework of administrative law, the allocated administrative procedural legislation is also divided into "Administrative procedures", "Procedures for ensuring the rights of citizens in management", "Administrative offense and administrative responsibility", "Proceedings on administrative cases"," Administrative justice "and other relevant institutions. The division of the industry into sub-branches, institutions, sub-institutions, acts, norms reflects their connection and internal subordination.
Fundamental factors that provide and characterize the functioning of administrative law as a systemic formation: legal principles; public goals and interests; norms; individual prescriptions; rights and obligations. Large structural units of administrative law: sub-branches; legal institutions and sub-institutions.
Administrative law is an integral part of the system of Russian law, its subsystem and therefore itself is systemic education. Therefore, it has the properties of integrity and structure. Its integrity is maintained through such fundamental phenomena as the subject, method and regime of administrative-legal regulation, public goals and interests, principles enshrined in administrative law, administrative-legal terminology.
Property structure branches are manifested in those of his primary decrees, which carry an imperative regulatory force at the "cellular level". These are administrative and legal principles and norms, individual regulations, rights and obligations. In the process of their own action and interaction, the indicated regulatory dictates are combined into regulatory formations (institutes and subinstitutions, subsectors and other structural divisions of administrative law). Their general regulatory interaction ensures the formation of an integral branch of administrative law.
Public goals and interests
Administrative law as an industry public law must embody certain public goals and interests. They also enhance its consistency, if they are not declarative and implemented.
The public goals and interests of the industry are enshrined in a variety of regulatory administrative acts. The following is in the interests of the state the main public goal is support the organization, functioning and development of the public administration system at the level of the requirements of the Constitution of the Russian Federation, federal constitutional laws and federal laws.
The state administration, which actually exists in Russia, and the state executive power are very far from the realization of the main public goal formulated above. This conclusion is based on numerous facts, reflected daily in the mass media, and testifying to the fact that the state administration in a number of its links is working very badly. Already the President of the Russian Federation - the guarantor of the Constitution and the highest official of the state - states the existence of corruption, destructive for the country, and the practice of kickbacks in the public procurement system in the amount of over one trillion rubles. Known for his numerous public statements about the prevalence of corruption in the country and the need for a merciless fight against it.
The above fact and a host of others characterizing the overall level of organization and activity of the state administration indicate that in the administrative-legal sphere there is a process of accumulation of problems that do not find the necessary and consistent solution. The most global problems for this sphere today, requiring minimization and elimination, are the feudal-compatriot recruitment system, its low legal and organizational culture, transcendental corruption, chronic non-compliance decisions taken, inability to limit government spending, inefficiency.
World experience shows that the state administrations of various countries, including Russia, have successfully overcome the accumulated problems only as a result of their significant organizational, functional and organizational and technological modernization. The renaming and reorganization of state structures make sense only if they rely on these types of modernization and follow them, but not vice versa. Therefore, for the modern historical period, the public interests of Russia correspond to public purpose, providing for a significant organizational-functional and organizational-technological modernization of the state administration, which would provide it with the formation of mechanisms for self-cleaning from its own systemic defects, the growth of its viability and efficiency in solving the tasks assigned to it and overcoming continuously emerging problems. It must find adequate reinforcement in the administrative legislation.
Legal principles - the fundamental ideas (principles) of social organization, legal regulation, enshrined in law. These are powerful backbone factors. Society strives to ensure that social organization and legal regulation were adequate to legal principles, but cannot yet achieve this.
In administrative law, a number of basic legal principles, which must comply with public administration, administrative and legal regulation and administration. Among them are the principles of legality, federalism, priority of the good and interests of the people, the effectiveness of legal regulation. Principles of a more particular nature are enshrined in regulatory administrative legal acts. The Code of Administrative Offenses of the Russian Federation proclaimed such principles as the equality of persons who have committed administrative offenses before the law, the presumption of their innocence, ensuring the rule of law when applying measures administrative coercion in connection with an administrative offense.
In accordance with principle of legality subjects carrying out normative and individual administrative and legal regulation, law enforcement activities are obliged to follow the requirements of the Constitution of the Russian Federation, federal and regional laws. Departure from the principle of legality is inadmissible under any circumstances, including on grounds of objective necessity or economic expediency. Ignoring this principle is inevitably followed by destruction social systems, the rule of law is replaced by lawlessness and criminal lawlessness, administrative and legal regulation is replaced by the worst forms of administration, based solely on the discretion of officials. It is significant that many centuries ago a winged Latin dictum arose: "Legality must triumph, even if the world perishes" ("Pereat mundus at fiat justitia"). The ancient Romans knew the price and great social significance of legality, as well as justice, justice, if they put them above the existence of the world and thereby elevated them to the absolute.
The principle of federalism implemented in Russian administrative law by classifying administrative and administrative procedural legislation under the joint jurisdiction of the Russian Federation and its subjects. In their joint jurisdiction are also issues of establishing general principles for organizing the system of public authorities, including executive authorities.
System setup federal bodies executive power, the procedure for their organization and activities, the formation of these bodies is attributed to the jurisdiction of the Russian Federation. In turn, the system of public authorities of the subjects of Pel) is established by these subjects independently in accordance with the foundations of the constitutional system of the Russian Federation and the general principles of organizing representative and executive bodies of state power in accordance with federal law. Within the jurisdiction of the Russian Federation, its powers in matters of joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation, the federal executive bodies and executive bodies of the constituent entities of the unified system executive power federal state.
The principle of the priority of the good and interests of the people should receive a consistent development both in the domestic legal system as a whole, and in its constituent branches, including the administrative nature. Let us recall the winged Latin dictum corresponding to this case and principle: "The welfare of the people is the highest law" ("Salus populi suprema lex"). He found a fix in numerous administrative and legal norms.
For examples, refer to the Code of Administrative Offenses of the Russian Federation. Among the tasks of the legislation on administrative offenses, it contains the protection of the individual, the protection of human and civil rights and freedoms, the protection of citizens' health, the sanitary and epidemiological well-being of the population, the protection of public morality, the protection environment, the established procedure for the implementation of state power, public order and public safety, property, protection of the legitimate economic interests of individuals and legal entities, society and the state from administrative offenses, as well as the prevention of administrative offenses.
The principle of the effectiveness of administrative and legal regulation and administration means that the action of administrative law is based on the need to achieve certain and essential for society, the state, i.e. of a public nature, results. This principle should permeate the organization and functioning of the state administration, the behavior of all subjects operating in the administrative and legal sphere.
The implementation of the principle of efficiency presupposes a mandatory assessment of the costs of maintaining state administration, the implementation of administrative and legal regulation and administrative management, taking into account the results obtained by the state. Unfortunately, in the Russian Federation, the effectiveness of the organization and activities of state power, state administration and other state structures is not and cannot be measured.
The systematic property of administrative law is also manifested in its structural organization. If consideration of the integrity of administrative law makes it possible to see in it a single and holistic functional formation, then the structural approach allows us to focus on the analysis of its most essential components, their connections and interactions between them.
The structure of administrative law is objectively determined by both external and internal factors. The most important external factor that has a decisive formative impact on the system of administrative law is its subject. The content of administrative law, the method and regime of administrative and legal regulation, and administrative management are also formed under the influence of the subject of the industry, but they themselves act as factors of internal action.
The branch of administrative law is a complex formation in the legal system. There are four main structural lines in all composition. The first structural series is made up of numerous primary administrative and legal orders: principles and norms; individual settings, subjective rights and obligations. All taken together, they concentrate in themselves the general regulatory force of administrative law.
The second structural row is formed by administrative and legal institutions and subinstitutes. A legal institution is a large structural part of the legal industry or sub-industry, which includes primary legal orders and provides regulation of a meaningfully homogeneous group of public relations as one of the subdivisions of the subject of the legal industry.
In administrative law, there are many legal institutions... The most developed and voluminous of them are the institutions of state executive power, civil service, special administrative and legal regimes, and administrative responsibility. The most important for rule of law and civil society institution of protection of legal entities and citizens from wrong (illegal) actions of the state administration.
Some legal institutions have as structural entities subinstitutes. For example, the institution of state executive power includes the sub-institutions of the federal executive power and regional executive power (the executive power of the constituent entities of the Russian Federation).
The third structural row is represented by sub-sectors administrative character, which were formed in the process of implementation of administrative and legal regulation of large complexes of social relations, as well as the implementation of administrative management with the participation of the state administration. Among the sub-branches of administrative law in the specialized literature, substantive law and procedural law are most often called, as well as administrative management, administrative service, administrative information, administrative police, administrative tort, and administrative justice.
In the administrative legislation of the last decade, procedural regulation, characterized by normative establishment of the procedure for the implementation of the most important for public administration and the organization of administrative management of activities. It finds confirmation in numerous administrative regulations. The work on the analysis and systematization of administrative and procedural regulation can lead to the formation administrative procedural law along with administrative procedural law governing the procedure for the consideration of administrative disputes.
Administrative procedural law also should be attributed to the sub-branches of administrative law. It is in the stage of active formation. Sometimes it is also considered in special literature as an independent branch of law. However, the amount of normative material concentrated here, the current level of isolation and development of this administrative and legal entity, the uncertainty of the criteria for its structure, the absence of a codified administrative procedural law do not give grounds for such a conclusion. In the best case, we can firmly talk about the formation of administrative procedural law, which ensures the procedure for considering administrative and legal disputes caused by individual cases of administrative offenses, official disciplinary offenses and appeals of individuals and legal entities to subjects of state administration.
The fourth structural series of the industry is its general and special suit with their own subject administrative and legal blocks. The latter are large subdivisions, allocated on the basis of a naturally formed structure of the subject of administrative law. Taking into account the current state of the industry and all the existing division into two parts, the following subject blocks can be distinguished in the general part: 1) general administrative law of the state administration (the basis of the legal status and organization of subjects of state administration); 2) administrative law of the civil service; 3) administrative law of organizations (enterprises, corporations, companies, institutions); 4) administrative law individuals (citizens, foreigners, stateless persons); 5) administrative law of forms and methods of management; 6) control and supervisory administrative law; 7) administrative tort law (the right of administrative offenses); 8) administrative jurisdictional law (the right to resolve administrative disputes arising from cases of administrative offenses, disputes over civil service issues, appeals of individuals and legal entities to the state administration).
In the special part of the industry, there are three areas of administrative management and administrative regulation: economic, humanitarian (socio-cultural), state and political. The corresponding subject administrative and legal blocks can be named: 1) administrative economic law; 2) administrative humanitarian (socio-cultural) law; 3) administrative law to ensure the safety and protection of the individual, state, society. Each of the three subject blocks of a special part of administrative law should be structured taking into account the existing organizational forms of administrative management and administrative and legal regulation, headed by a certain ministry or the Government of the Russian Federation, or the President of the Russian Federation.
The unity of legal norms regulating homogeneous social relations is achieved by grouping them into independent legal institutions. Administrative and Legal Institute is a system of legal norms that regulate relatively homogeneous social relations in the field of public administration.
There are the following institutions of administrative law:
- * principles of public administration;
- * administrative and legal status of citizens (individuals);
- * the administrative and legal status of executive authorities;
- * state and municipal service;
- * the administrative and legal status of non-state (public) associations;
- * the administrative and legal status of enterprises, institutions and other subjects of management;
- * administrative and legal regimes;
- * forms of government;
- * methods of public administration;
- * administrative responsibility;
- * administrative process;
- * ensuring the rule of law in public administration;
- * administrative and legal foundations of intersectoral management (coordination);
- * administrative and legal foundations of management in the field of economics;
- * administrative and legal foundations of management in the administrative and legal sphere;
- * administrative and legal foundations of management in the social and cultural sphere.
However, legal institutions can also be grouped. Since there are groups of norms of administrative law that regulate management relations associated with the peculiarities of any sphere of the state's activity and a group of norms that establish general principles state administration and the implementation of executive power, characteristic of all administrative-legal relations, the institutions of administrative law can be systematized on this basis.
As is known from the theory of law, the branch of law sometimes includes sub-sectors, which consist of a set of separate legal institutions. Sub-sectors are integral in composition and subject of education regulation, which regulate a special sphere of relations within a wider complex of relations regulated by the same or another branch of law.
In administrative law, the following subsectors are distinguished:
Service law
Political law
Educational law, etc.
- a) regulatory and structural (subject of administrative law, areas of regulation, principles, norms);
- b) executive authorities;
- c) public service;
- d) administrative and legal regimes;
- e) administrative process, legality in management;
- f) organization of public administration in spheres and sectors.
Sub-branches of administrative legislation include:
- a) "Executive authorities" with the allocation of the institutions "Federal executive authorities (general issues)", "Federal ministries", "Other federal government bodies", "Executive authorities of the constituent entities of the Russian Federation (general issues)", "Types of executive bodies subjects of the Russian Federation ". Note that in the corresponding classifiers of republics, regions, etc., more detailed classifications of their organs are possible;
- b) "Public service (general issues)" with the allocation of the institutions "State service in federal state bodies", "State service in state bodies of the constituent entities of the Russian Federation", "State service in state institutions and enterprises";
- c) "Administrative and legal regimes" with the institutions "State of emergency", "Martial law", "Customs regime", "Functional regimes";
- d) "Registration and legalization activities" with the institutions "State Registration", "Licensing", "Standardization", etc .;
- e) "Public administration in the spheres of public life" with the institutions "Delimitation of functions between the bodies of the Russian Federation and the bodies of its subjects", "Competence of the executive authorities", "Decision-making", etc.
The institutions of this sub-branch are reproduced in a specific way in the headings of the classifier devoted to other branches of legislation (in the field of economics, nature protection, education, culture, defense, etc.);
f) "Control and supervision activities" with the institutions "Accounting", "Control", "Supervision".
A number of institutions of administrative law and legislation can be subdivided into sub-institutions. But this division does not always coincide for them.
In the system of administrative law, one can also distinguish such a sub-industry as administrative procedural law. It should be noted that in the theory of administrative law there is no consensus on this matter. administrative law institute
Most administrative scholars believe that administrative procedural law is a legal institution of administrative law.
In contrast to this point of view, a number of scholars believe that the development of administrative procedural law as a legal institution has reached a level where there is reason to assert about the emergence and further development of administrative procedural law as a sub-branch of administrative law.
At the same time, it should be noted that recently the point of view about the development of administrative procedural law as an independent branch of law has become increasingly common, that is, we are talking about the separation of administrative procedural law from the system of administrative law.
At the same time, within the framework of administrative law, the allocated administrative procedural legislation is divided into “ Administrative procedures"," Procedures for ensuring the rights of citizens in management "," Administrative offense and administrative responsibility "," Proceedings in administrative cases "," Administrative justice "and other relevant institutions.
The mechanism of legal regulation of administrative and jurisdictional activities of executive bodies (officials) or other bodies as a whole does not represent a single set of administrative procedural norms and administrative procedural relations. In fact, only jurisdictional cases of a controversial nature and some cases on the application of compulsory measures of procedural support for proceedings in administrative offenses have a solid regulatory base. These are the Code of Administrative Offenses of the Russian Federation (hereinafter - the Code of Administrative Offenses of the Russian Federation), the Tax Code of the Russian Federation and Labor Code RF. In the same regard, the legislation on judicial appeal of illegal actions (decisions) of executive bodies (officials) deserves attention.
A significant increase and development of the norms of substantive administrative law, undoubtedly, requires both the codification of procedural norms in this area, and the formation of a system of administrative procedural legislation. At the same time, it should not be considered that these norms are related exclusively to the procedure for considering administrative disputes and offenses.
We note the remark of S.L. Simonyan during the discussion of the draft law on the Code of Administrative Procedure. In particular, he wrote: “There are no features that significantly distinguish the administrative-procedural form of protection of rights from the civil procedural form, in the draft. Those that exist (specifics of proof, shortened terms of consideration of the case, etc.) are insufficient to create a qualitatively new judicial procedure. " However, the disadvantages of the discussed S.L. Simonyan of the draft law, noted in the literature, cannot shake ideas about the fundamental difference, the independence of the administrative process in comparison with other types of procedural legal relations.
Thus, the formation of a system of administrative procedural legislation is a natural trend in the development of the system of legislation in Russia.
Meanwhile, so far the proposals of administrative scientists about a separate systematization of administrative procedural norms, which are currently "dissolved" in the General and Special parts, ie on the creation of the third part of administrative law - procedural, they did not find their legislative consolidation. Today, a number of normative legal acts have been adopted, regulating only certain types of administrative proceedings, other similar acts are under development.
So, an administrative-legal institution is a complex of administrative-legal norms that regulate a certain type of management relations and are part of the branch of administrative law. Sub-industry is an ordered set of related institutions of administrative law.