Institutions of the rule of law - a law-enforcement and Russia - Юридический журнал Правовое государство: теория и практика

ISSN 2500-0217 / Включен в Перечень ВАК

 

FALCONS Alfred Nilovich
Doctor of Law, Professor, Honored Worker of Science, Academy of Natural Sciences
The article examines the most important aspects of the modern constitutional state: status, problems and contradictions, trends and prospects of development of the rule of law in Russia.
The article analyzes the main provisions of the role and importance of such an institution as the institution of the rule of law certainty and predictability of government regulations.
Institute of certainty and predictability of government regulations.

One of the main organizing forces of human society in the XXI century is the institution of the state. No other organization can not compete with the state in the variety of tasks and functions in influencing the fate of society. As a form of social organization, designed to ensure its value and manageability, the state performs the functions due to the needs of society and, therefore, serves its interests. It is the political organization of the country's population, its common heritage. Without state impossible social progress, the existence and development of a civilized society. [1]

With globalization, the only real and effective factor affecting the legal limits, both in national and international law, there is a strong state with its laws and legal sovereign right to treat staying in their territory to people within the proper respect for their rights and freedoms, as required by the tenets of the rule of law.

For Russian legal state - opposite the State voluntarism, totalitarianism, authoritarianism and dictatorship of any alternative. Therefore, the importance of the disclosure of this global theme is undeniable both from the theoretical and practical sides. This article is a logical continuation of the development of the theory and practice of the rule of law, including in Russia. [2]

Exploring the development of the rule of law in theory and in practice, it should be scientific proceed from the fact that the state of law actually formed of a plurality of new public institutions should be the result of a fundamental change in the nature of relations between the state, society and the individual.

The course of the formation of the rule of law in post-communist realities, postotalitarnoy era is the real expression of the movement to new frontiers of social and spiritual life. Creating a relaxed, open, free, democratic civil society, learn the lessons of its totalitarian past, society based on law, legal law, responsibility, awareness and entrepreneurial citizens, ie, legal civil society, leads to full elevation of man, making it the main reference point of this society. "Human dimension" and is the core, the essence, the core of the rule of law. Only such an approach can create the conditions for full self-expression, self-realization, self-assertion of the individual, as well, and freedom, unfettered creativity of her thoughts in different spheres of life, can reveal the value of the inherent limitations of the human society. [3]

In developing the concept of the rule of law in Russia, revealing its general democratic, social principles, we should not throw away all the positive things that created by mankind for more than 200-year period of immediate formation of such states in other parts of the world, including in Germany. I would especially like to emphasize that the study of the model rule of law in Germany, and particularly in Germany, which is considered a classic in some respects, in terms of borrowing its fundamental principles, institutions and mechanisms can also largely contribute to the formation of a single legal space the former Soviet Union, and, ultimately - throughout Europe and Asia. Creating such a space, will certainly contribute to peace between its peoples by law (Kant, "Perpetual Peace"). This is seen a kind of super-task a comprehensive and in-depth analysis of foreign experience of functioning of the rule of law. By the way, in the framework of the Eurasian Union of Russia, Belarus, Kazakhstan has already made the first far-reaching task of creating a single economic space law.

The principle of the rule of law, as it is enshrined in the constitution of many countries (including Russia and Germany) covers the most important legal institutions that make possible the rights and freedoms of man and citizen, open and guarantee them. [4] It is, first of all, the institutions of the rule of legal law enforcement and protection of the rights and legitimate interests of the individual, the separation of powers, certainty and predictability of government regulations, inclusive and effective judicial protection, guarantees for human dignity, prohibition of excessive state action, as well as Institute of mutual responsibility of the state and the individual. All these institutions operate through close contact with the main objective: to provide real legal means individual rights and freedoms and to exercise all public and private law political activity in the country in strict accordance with the law and the law.

In modern conditions for Russia is of particular importance Institute of certainty and predictability of government regulations. [5] This institute elaborated in the theory and practice of the rule of law in Germany, including a number of judgments of the Federal Constitutional Court of Germany. [6] Let us consider it in detail in the application to Russia.

This institution at the beginning of the formation of the German concept of the rule of law has become one of the "cornerstones" of stones theory the rule of law in its practical refraction. For sunrise class commercial and industrial bourgeoisie in Germany this postulate the rule of law was extremely important as a tool that does not allow arbitrariness on the part of the state in planning and implementation, especially economic policy (taxes, fees, etc.).

Institute of certainty and predictability of government regulations is important for Russia because pravogosudarstvenny order only can effectively link the state power, when he makes her behavior is predictable, measurable, kalkuliruemym, and therefore criticized and controlled. Pravogosudarstvenny order seeks in this regard, be rational, the optimal order. These include, depending on the circumstances, a necessary measure of openness, transparency (eg, mandatory publication of laws, publication of administrative acts, the right of access to documents, including collected in relation to a particular person), the rejection of petty (imaginary) secrets in the administrative offices and in Justice (under the loud, often far-fetched, the slogans of state or military secrets).

A critical tool in the medium is clear, clear unambiguous definition of public policies, of course, first of all, the ultimate clarity of the law, especially the rules of conduct. The requirement follows from the same definition of connectedness with the legal law: if the principles relating to the coherence of the law (the rule of law, rule of law and the principle of reservations) should be effective, the "rule of norms" and "standards clause" should, therefore, determining the effective connectivity since it assumes that these standards is sufficiently definite and precise. For example, the rate on the financial administration authority "to raise the necessary taxes to the common good" can formally comply with the principle of the reservation. However, this coupling financial administration, it can not be because of her complete uncertainty. These provisions are extremely relevant for Russia. In the Russian reality many examples of increasing the tax burden, payments of various kinds (in housing - just as much as 40%), the prices of goods, services and products without any economic justification. Accounts in connection with this often Prime Minister and even the President of the Russian Federation to intervene in the resolution of conflict relations. So as not working of the institution of law. They are, so to speak, "by hand", individually, and not by the relevant law, "resolves" disputes. This - abnormal legal department.

At the same time, the minimum required of certain laws (and often legal act - as a whole) - is often very difficult to establish. As a "fist-formula" can act as follows: the legislator should be formulated as precisely as soon as the maximum possible in the light of the problems requiring a specific settlement. Excessive demands for certainty and can cause harm to the function of legal regulation (prolixities), just as meaningless and empty forms of adoption. Foreign and domestic lawyers emphasize in this connection that constantly requires that legal rules - the rules of conduct that are imposed on organizations and citizens certain legal obligations, or to authorize legal obligations, would provide, if possible, a precise statement of the affected range of recipients established permitted or obligations, as well as prerequisites (specific life circumstances), the presence of which is permissible onset of action of these circumstances. We are talking about a clear definition of the hypothesis of the rule of law legal facts. After all, the "movement" of a legal norm begins with a hypothesis.

Using the experience of foreign and domestic jurists, can be given constitutional and legal assessment of the conscious, "systematic" uncertainties of legal acts. These are: the authority to carry out operations without obligating the actions of certain institutions (option); undefined legal concepts; combination of the two previous ones, i.e. general reservations. In such regulation in most cases "pravotvortsy" refer to the fact that "significant" business reasons force to these uncertainties. Especially characteristic was the case during demolition of the state machine of the USSR (and Russia in particular) after 8 December 1991 and breaking the Russian legal system in this regard. "Better any stable social normativity, - said Professor VD Zorkin - than no. Society and the state without brakes very scary (and fortunately very rare in history) phenomenon. "[7]

In fact, after the collapse of the Soviet Union and the destruction of the Russian legal system, the core of which was an element as the right of expressing its legislation had an effect "ukaznoy entitled" President Boris Yeltsin. What this has done enormous damage to Russian statehood - is well known. "Phenomenon" has become the discretion of the President and officials. However, in terms of legal evaluation of the Institute of appreciation I would like to note the following. Discretion - a kind of legal-psychological spring all legal mechanism set in motion all of its component parts. [8]

The doctrine of discretion is widely developed today in the general administrative law, both foreign and domestic. It's like should reduce the risk of violating the legal security of citizens and organizations. But in fact, in the Russian bureaucracy and the entrepreneurs are often abused by law, while often quite cynically and brazenly flouting the rule of law. This is due to the fact that the discretion has two interrelated facets - it reflects the limits of competence of the subject and not only introduces his work in the legal framework, but also provides the necessary independence and maneuver. [9] Otherwise, the operation will become a mechanical mode of action. Discretion in terms of the rights guaranteed by law have the choice of subject options authorized decisions and actions within its competence.

Abuse of discretion is a starting point, especially in the form of poor, low-quality, poorly defined status and competence of employees and officials. This fully applies to the authorities.

The basic condition for lawful discretion is the knowledge and steady application of the principles of law as a source, orienting, and fundamental guiding principles, arising from the nature of law, as they have direct access to social practice, purposeful activity of people. [10]

These principles are, figuratively speaking, are the "measure" performance evaluation: if the discretion is not so much the scale in terms of how the content and direction of action.

In addition to these principles is important and choosing the right legal structures. He just has a direct impact on the behavior of parties to the relevant relationships. So, for example, November 20, 2009 the Russian State Duma adopted the Federal Law "On general principles of public service delivery and performance of public functions." This law allowed to charge a fee for citizens' public services "and" public functions ", in fact it legalized to some extent, corruption. By analogy with this law made a lot of regulations, such as routine check of serviceability of gas meters and other devices in individuals at their expense, but not at the expense of their respective companies. Again - the scope for obtaining bribes.

Another example of the use of the legal structure in terms of appreciation for abuse of rights. Thus, in recent years in the regulation of labor relations have become widely used this form to enter into relations with workers as contract agreement. This - civil category, and not the norm of the Labor Code of the Russian Federation. Such a bias in favor of civil contracts provides employers with broad rights and opportunities and at the same time depriving the employee of many of the rights guaranteed by law. Employers do not have to pay him a monthly salary to pay for sick leave and vacation pay pension contributions and 13% income tax to the state treasury. Hence - the wide discretion of some other and powerlessness. And all this is not conducive to proper employment, stimulate productivity, undermines the rule of law in the state.

Much has been written in terms of abuse of discretion Institute of law enforcement officials, including the police, the police, in particular the incorrect and exaggerated assessment of the scope of discretion or omissions.

In the normative legal acts is often used as a form of expression "and performs other duties prescribed by law or other regulatory legal act." One thing is clear: an open list of powers gives scope for any extension of the discretion of officials, bureaucrats, functionaries and officials in the public service, and in the sphere of private activity. "Closed" is a list of places tend to clear obstacles for any changes in the competence of public officials and employees, as well as officials in the field of entrepreneurship.

Regulatory legal field of law enforcement agencies is a matter of debate for a long time. One of the cornerstones in this discussion is, of course, the authority of the Ministry of Interior, which is the core law enforcement activities of the Russian Federation. In this respect, the big doubt is informative content innovations caught in the text of the Federal Law "On Police". [11]

For proper evaluation of the police need to understand that the old law "On Police", the new Federal Law "On Police" are only conceptual models of the activities of Ministry of Interior of Russia, forming a framework for the creation of subordinate legislation. [12]

The basis of the law enforcement agencies, including and police lies in the Code of Criminal Procedure, the Federal Law "On operative-investigative activities", the Administrative Code. Of course, an important reason for the rebranding were numerous cases of police corruption made possible because of the many gaps in legislation and law enforcement practice has a negative in the spirit of abuse of rights in the form of "appreciation". Regulatory gaps in the legislation contributed to a potentially corrupt norms expressed in specific abuses by the police.

In this aspect, and the law "On Police" is justified criticism.

Last modified on 17/04/2015

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Соколов Альфред Нилович

Доктор юридических наук, профессор, заслуженный деятель науки РФ, академик РАЕН

 

ISSN 2500-0217 / Включен в Перечень ВАК