DOI: 10.7256/2454-0595.2014.6.11569

Abstract:

DOI: 10.7256/2454-0595.2014.6.64980

Abstract: The administrative law literature provides many definitions of administrative law. The authors of these definitions reflected their understanding of the object and method of administrative law, as well as their understanding of definition of its object. Many scientific works and teaching manuals use the terms, such as “public administration”, “public administrating”, “state administration”, “public management”. Often these terms are confused and substituted for each other, and none of these terms is legislatively provided for. The article contains analysis of various approaches towards substantiation of the state activities in the sphere of executive government and legal construction of the term “public administration”, and its definition is offered. In this article the public administration is defined through the activities of the bodies and organizations, having (or being vested with) state powers for the implementation and protection of subjective public rights of private persons and entities. The activities also involve development and implementation of the state policy, normative legal regulation, provision of public services, managing public property, law-enforcement activities, control and supervision. At the same time such activities are executive and administrative by their nature and they are based upon the law and are aimed at its implementation.

Keywords: legal construction, public administration, public administering, public management, subjective public rights, private parties, activities, state administration, administrative law, provision of public services.

DOI: 10.7256/2454-0595.2014.6.11373

Abstract:

DOI: 10.7256/2454-0595.2014.6.64979

Abstract: Existence and development of the civil society cannot be imagined outside the complicated system of social relations without direct or indirect participation of the government. One of the forms of such participation involves adoption and application of norms of private and public law. The political system of the state also has its influence upon the civil society, since the model of society development depends on a current quality of a political system. At the first glance development of civil society takes place solely within the framework of private interests, but the participation of public government and application of public law norms in the private law sphere (albeit indirectly) may not be doubted. In the developed social systems public and private relations may be distinguished based upon the autonomy, which is provided by the state for its citizens. The sphere of relations, which is provided by the state to the management of the people, excluding direct involvement of the state, is regarded as being private relations. It does not mean, however, that the state avoids necessary involvement in the private relations, but it is not dominant or predefining. For example, in the sphere of religion the state proclaims the freedom of conscience. However, the state acts against totalitarian and destructive sects, them being exclusively harmful for the society as a whole. Any legal norm providing for private law fundamentals of social relations is public by its nature for the following reasons. Firstly, it is sanctioned by the state and it becomes a part of national legislation. Secondly, it may not contradict or threaten the state system and nature of state administration. Moreover, the private law and public law fundamentals are implemented in the close interrelation with social, economic and cultural relations within the specific historical period, and they may not be alienated from them. Therefore, the logic of their development is much dependent upon the economic situation, defining specific developments of law and legislation, as well as of judicial practice and interpretation of laws. Economic and cultural relations, which are regulated by the law do not fall exclusively within one of its spheres, and they are included into the common object of both public and private law. The distinction between public and private law based on interest or character of social relations, them not being either elements of legal norms or contents of a subjective rights, is, therefore, not viable. For the sake of the study, firstly, there is need to consider Hegel’s view on civil society as a sphere of private, singular interests, which in some situations has an independent value in comparison with the sphere of public (common) interests. Secondly, the conclusion that differentiation between the civil society and state (as a sphere of political power and administration apparatus) is based upon the individual rights of citizens, protecting them from abusive administrative intervention, and providing them with an opportunity to influence the governing institutions (that is why, the individual rights should be regarded as an important element within the structure of civil society). Thirdly, the reference to the possibility for an individual to achieve a goal only in relations with others (that is in the presence of joint relations, serving as an inalienable element of civil society. Therefore, according to the Hegel’s concept, the sphere of individual interests, law and solidarity are categories necessary for the description of the civil society. The goal of civil peace supported by the state is protection of an individual citizen by the state. A citizen is a natural unit or an atom (while citizenship involves a conventional element). On the other hands, members or units (atoms) of the international order are states. However, as a matter of principle, the state may not be a natural element, like an individual, since there are no natural borders of a state, they change and may only be defined via the application of the international status quo principle, since this principle refers to a certain arbitrary date, so defining the state borders is a purely conventional procedure.

Keywords: state administration, civil society, private law, public law, state, human rights, business, economics, law, convergence of law.

DOI: 10.7256/2454-0595.2014.6.12108

Abstract:

DOI: 10.7256/2454-0595.2014.6.64978

Abstract: The special economic zone is part of territory of the Russian Federation, which is defined by the Government of the Russian Federation, where there is a special regime for the entrepreneurial activities. Territory of a special zone is a part of an economic area, where a certain system of preferences and stimuli for the entrepreneurial activities is being applied. Special regime of entrepreneurial activities in the territory of the SEZ is manifested by provision to the SEZ residents of various preferences: customs (foreign trade), tax, financial (various forms of subsidies, which may be provided as lowered rent for the use of plots of land and production constructions, preferential credits, etc.), administrative (simplified procedures for the organization registration, simplified procedures for entry and leave of foreign citizens, etc.). The article reveals the definition of efficiency of functioning of the special economic zones (SEZ), providing various methods and markers for its evaluation. The article includes a retrospective analysis of the legal regulation process for the evaluation of efficiency of functioning of the SEZ. The author also pays attention to the efficiency results of the functioning of the SEZ in Russia for the period since they were formed to the current period. The study contains quantity and quality analysis, as well as a retrospective analysis of efficiency evaluation for the functioning of special economic zones. The author also evaluates the blocks of markers for budget, social, tax, economic efficiency of special economic zones. Analysis of functioning of the SEZ in Russia has shown a number of topical issues: 1. Lowering of the staff number in one of the largest SEZ of Industrial Production Type residents in Tatarstan due to the termination of its activities; 2. Lack of residents of the SEZ of Production type in Habarovsk region and Murmansk region; 3. Lack of approved plans for the development of the SEZ of the Tourist Cluster in the North Caucasian Federal District; 4. There are still unresolved issues as to the volume and sources of financing for the infrastructure objects necessary for the functioning of the SEZ of Tourist Recreation Type in the Primorsky region; 4. There is low average weighted value of efficiency of the functioning of the SEZ of Industrial Production Type in Ulyanovsk region; 6. There is a very low marker for the general territory of the land used by the residents of all of the SEZ, it is just 11 per cent. As a result of the efficiency analysis for the functioning of the SEZ and for the purpose of the improvement of this mechanism, the proposals are made for the amendments into the Rules for the Efficiency Evaluation of Functioning of the SEZ.

Keywords: special economic zone, efficiency, functioning of the SEZ, zone residents, efficiency evaluation markers, budget efficiency, social efficiency, economic efficiency, tax efficiency, financial efficiency, efficiency, SEZ administration.

DOI: 10.7256/2454-0595.2014.6.11568

Abstract:

DOI: 10.7256/2454-0595.2014.6.64976

Abstract: The article regards populated territory as an obligatory element (characteristic feature) of a municipal entity, and any public law entity. Within the framework of this research the populate territory of a municipal entity is studied as territorial limits to the jurisdiction of the municipal entity structures. The author compares quantity characteristics of states, constituent subjects of a federation and municipal entities (municipalities). The author discusses the means of providing for the boundaries (limits) to the municipal entities in the legislation of the constituent subjects of the Russian Federation, studying the improvement of the legal regulation of municipal territorial formation of the constituent subjects of the Russian Federation within the context of social, economic and budget systems of the state. The article includes analysis of a municipal entity as a type of public law entity. Territory of a municipal entity is studied as a legal matter. In the opinion of the author the problem of lack of owned resources in most municipal entities may not be resolved solely by the improvement of legal regulation of municipal territorial structure of the constituent subject of the Russian Federation, since these problems have appeared out of contradictions within the general social, economic and budget systems of the state.

Keywords: municipal law, local self-administration, municipal entity, boundaries of a municipal entity, territory of a municipal entity, municipal territorial structure, laws of the constituent subjects of the Russian Federation, public law entity, populated territory, resources of a municipal entity.

DOI: 10.7256/2454-0595.2014.6.11376

Abstract:

DOI: 10.7256/2454-0595.2014.6.64977

Abstract: The article includes analysis of law-enforcement activity as a type of legal activity. The authors establish its difference for the human rights advocacy and other types of activities in the sphere of implementation of law. The general theoretical literature provides for a widespread typology of legal activities, where law-enforcement (jurisdictional) activity is regarded as the type of activities in the sphere of implementation of law. However, once one reads more of the literature on the activities of law-enforcement bodies, there is a different approach. Or, to put it more clearly, there is no unified approach to its understanding. The issue of goals of law-enforcement activities, its contents and definition is not legislatively provided for. However, it does have its goals, and they are reflected in a number of legislative acts regarding organizational issues for the fundamentals of the structure and activities of various law-enforcement bodies. Based upon the analysis of federal laws on law-enforcement bodies, one may conclude that the goals of law-enforcement activities may be viably divided into two groups: general goals typical for all of its directions, and special goals, being specific for certain directions. The situation becomes tangled due to the fact that this theoretical characteristic feature of lawenforcement activity and its types does not concern human rights advocacy as a type of legal activity, while this type of activity is currently being recognized as being of great value for the formation of the rule-of-law state. The scientific literature often views the definitions of legal protection and legal defense (law-enforcement and human rights advocacy activities) as being synonymous and capable of substituting each other. All of the above requires a special study of this issue. The activities of the state, its bodies and institutions involves various spheres of life of the modern society. Solving the problems regarding the guarantees of normal functioning of economy, implementation of foreign policy, formation of the conditions for the development of culture, science, and education, support of defense capability and protection of public security of the state, and many other important functions form the contents of this varied and multifaceted activity. The legislation provides for specific goals for some specific types of law-enforcement bodies according to their competence. Some specific goals are achieved within the specific directions (functions) of law-enforcement activity. Taking the above into consideration, one may define the law-enforcement activity as activity implemented or sanctioned by the state for the purpose of protection and defense of law and prevention of its violations by specially empowered bodies via application of legal measures of influence in strict conformity with the law and procedures established by it.1. Defense of the existing legal order. 2. Protection of existing legal order. 3. Prevention of infringements of the existing legal order in a state. If the activities of the state government body or other organization involves only one or two elements, then it probably may not be considered as a law-enforcement activity, and is either human rights advocacy or control and supervision activity. At the same time, the law-enforcement activity should include the entire complex of the above-mentioned elements into its contents.

Keywords: state mechanism, state body, theory of law-enforcement, law-enforcement bodies, human rights advocacy, implementation of law, law-enforcement activity, advocacy, lawfulness, national security.

DOI: 10.7256/2454-0595.2014.6.12075

Abstract:

DOI: 10.7256/2454-0595.2014.6.64974

Abstract: The review shows definition and contents of administrative activity of the police, showing the place of this activities in the matters of implementation of the main directions of the police work. The article pays attention to the characteristic features of administrative activity, allowing to identify it within the law-enforcement activities of the police. Based upon the generalization of the practice of legal regulation of administrative police activities, it is offered to adopt a Federal Law “On Administrative Activity of the Police”. This law should provide for the main principles, forms and methods for the implementation of the said activity in the sphere of internal affairs. In addition, the said Federal Law shall allow to abolish regulation of the number of important matters in the work of the police involving human rights issues by institutional regulations. The methodological basis for the scientific article was formed by the current achievements of the theory of cognition. In the process of studies the author used general philosophical, theoretical and empiric methods (dialectics, systemic method, analysis, synthesis, analogy, deduction, observation, modeling), traditional legal methods ( formal logic method), and methods typical for specific sociological studies (statistical, expert evaluation, etc.). The issue of the improvement of the modern mechanism of administrative legal regulation of various aspects of public administration is especially topical nowadays. That is why, it is impossible to imagine the activities of state government and administration bodies, being aimed at guaranteeing the public safety and protection of public order, protection and defense of basic human rights and freedoms, without regulative and protective qualities of administrative law Administrative law is a unique branch of law within the system of Russian law. It is a direction for the legal regulation, which allowed for bringing together the most varied prescriptions, allowing for flexible and systemic influences upon various social relations no matter where such relations are formed. In spite of the universality of the subjects of administrative legal regulation, the legal influence upon the public relation is nevertheless implemented by prescriptions of various character.

Keywords: police, rights, freedoms, protection, defense, the MIA, policeman, violation, form, method.

DOI: 10.7256/2454-0595.2014.6.10860

Abstract:

DOI: 10.7256/2454-0595.2014.6.64975

Abstract: The customs bodies of the Russian Federation have certain amount of competence in the sphere of protection of intellectual property rights. The procedure for the activities of the customs bodies within the administrative mechanism for the protection of intellectual rights is regulated both at legislative and institutional levels. The article concerns the changes in the procedures established for these measures by the customs bodies taking into account the development of modern integration processes. Additionally, the author views the issues of interaction between the Federal Customs Service and the Federal Intellectual Property Service (Rospatent) within the framework of guaranteeing rights of the authors and title holders of relevant rights. The main method for the study was analysis of the latest amendments in the procedure for the activities of the customs bodies within the administrative mechanism for the intellectual property protection. As a specific recommendation the author offers to widen the scope of existing interdepartmental cooperation at the stage of customs declaration and the procedure of inclusion of the intellectual property object into the customs register. The author also has established the cases when the customs bodies do not take measures aimed at interception of the production of goods, which have elements of counterfeit, while evaluating some aspects of judicial practice on the cases of illegal use of trademarks by the natural persons in international post packages. The author pays attention to the possibility for the implementation of the additional competence of the tax bodies in the sphere of intellectual property protection within the framework of the ex officio principle. The author also provides the comparative analysis of legal mechanisms in Russia and in the Republic of Belarus. Evaluation of the existing procedure for the measures of the customs bodies for the protection of intellectual property rights allows one to draw a conclusion that there is a sustainable tendency for the unification of administrative procedures in the sphere of protection of intellectual property rights at both national and supranational (regional) levels.

Keywords: customs bodies, intellectual property objects, customs register, procedure, release of goods, title holder, declaratory, Rospatent, interdepartmental cooperation, the Customs Union.

DOI: 10.7256/2454-0595.2014.6.11358

Abstract:

DOI: 10.7256/2454-0595.2014.6.64973

Abstract: The article concerns characteristic features of evidence in the administrative offences cases, the author substantiates the position that authenticity is a necessary legal quality of evidence along with its relevance and admissibility, characterizing the elements of its nature. Stating authenticity, relevance and admissibility of evidence manifests the formation of evidence as a legal category and possibility for its use in the legal process in order to establish the circumstances, which are relevant for the case. The article singles out the interrelation between authenticity and admissibility, specific features of checking authenticity at various stages of the proceedings in an administrative offence case. The methodological basis for the studies involves general scientific methods (dialectic material, analysis, and synthesis) and specific scientific methods ( systemic-structural, comparative legal, statistical, formal legal) scientific cognition methods. The article includes definition of the terms: characteristic features of evidence, authenticity, relevance and admissibility of evidence. Based upon the study the author makes a conclusion that only the combination of formal examination and free evaluation at various stages of cognition may guarantee adequate studies of the authenticity of the evidence. The first stage of examination is evaluation of procedural form, and the second includes analysis of the contents of the evidence in order to establish the logical propriety, clarity and comprehensive character of the provided data.

Keywords: evidence, characteristic features of evidence, qualities of evidence, nature of evidence, relevance of evidence, admissibility of evidence, authenticity of evidence, evaluation of evidence, proof, definition of evidence.

DOI: 10.7256/2454-0595.2014.6.12114

Abstract:

DOI: 10.7256/2454-0595.2014.6.64972

Abstract: The article analyzes the issue of whether it is acceptable to apply the Federal Law “On Organization of Provision of State and Municipal Services” to the activities of public government bodies on assessment of claims of citizens. The author has studied the practice of recognition of the procedure of assessment of claims by various state and municipal bodies as a state (municipal) service. The author has studied the regulations, including administrative regulations on assessment of claims of persons as a state (municipal) service. The author provides an algorithm for the application of specialized legislation on state (municipal) services to the procedure of assessment of claims of citizens. Publication is based upon the general scientific dialectic method. The special methods used for this research involve systemic structural, formal legal, logical and comparative legal methods. The article substantiates the thesis that assessment of claims of citizens by the government (municipal) bodies is a type of state (municipal) service. The author establishes and analyzes two groups of administrative regulations of government bodies, both proving and contradicting this thesis. The author offers to assess the primary claims of citizens based upon the universal norms of the Federal Law “On Organization of Provision of State and Municipal Services”, and as for the secondary claims (regarding challenging and complaints on the responses to the primary claims), they should be assessed in accordance with the special rules of the Federal Law “On Organization of Provision of State and Municipal Services”.

Keywords: claim, the right to claim, claims of citizens, state service, municipal service, public service, administrative regulation, legislation on claims, complaint, allegation.

DOI: 10.7256/2454-0595.2014.6.12180

Abstract:

DOI: 10.7256/2454-0595.2014.6.64971

Abstract: Improvement of the administrative legislation regulating the activities of the joint stock companies should be implemented with due regard to the norms applied in the European Union states, and Russia joining the WTO and the European Economic Union establishes the need for development and strengthening of the administrative legal status of joint stock companies. It should also be pointed out that currently there is need for a clearer definition of a collective subject of administrative law, as well as for the development of the system of efficient administrative legal means of influence upon the activities of the joint stock companies directly. The methodological basis for the scientific article was formed by the current achievements of the theory of cognition. In the process of studies the author used general philosophical, theoretical and empiric methods (dialectics, systemic method, analysis, synthesis, analogy, deduction, observation, modeling), traditional legal methods ( formal logic method), and methods typical for specific sociological studies (statistical, expert evaluation, etc.). It is noted in the scientific literature that at the current stage of social and economic development of the Russian Federation the topicality of the problems regarding formation of the efficient administrative legal mechanisms for the regulation of activities of joint stock companies becomes yet greater. The civil law regulation of activities of joint stock companies does not use all of the variety of forms and methods of legal regulation, especially speaking of large companies with state participation. The studies of the mechanism for the administrative legal regulation of the activities of the joint stock companies is of great theoretical and practical value, since it allows to reveal the existing problems in the implementation of legal norms and to find the paths for the improvement of the current legislation.

Keywords: regulation, society, shareholder, share, mechanism, influence, administration, control, service, state.

DOI: 10.7256/2454-0595.2014.6.12178

Abstract:

DOI: 10.7256/2454-0595.2014.6.64970

Abstract: In the current social, economic and political conditions the Russian Federation faces numerous challenges and threats. One of the problems forming a significant obstacle in the way of many state reforms, infringing upon the rights and lawful interests of natural persons and legal entities in their interaction with the state government and administration bodies is the problem of corruption. This problem influenced the public interests of states throughout the development of human civilization and statehood. Due to the corruption many empires have fallen, great moral and material damage was caused. The methodological basis for the scientific article was formed by the current achievements of the theory of cognition. In the process of studies the author used general philosophical, theoretical and empiric methods (dialectics, systemic method, analysis, synthesis, analogy, deduction, observation, modeling), traditional legal methods ( formal logic method), and methods typical for specific sociological studies (statistical, expert evaluation, etc.). The problem of corruption cannot be resolved within a short period of time. Almost every state took a certain amount of time to overcome this problem, and throughout this period of time the legislation against corruption was passed, necessary structures against corruption were formed, civil society developed, etc. This was the evolutionary way of many states, which are now industrially developed states. A similar process is currently ongoing in the Russian Federation.

Keywords: corruption, risk, fight, counteraction, responsibility, punishment, standard, official, service, servant.