Преимущества и недостатки конвергенции частного права в контрольно-надзорную деятельность как института публичного управления

Abstract

As part of the tasks of limiting state interference in the economic activities of business entities, ending excessive state regulation, and developing the system of selfregulatory organisations in the economy, an administrative reform has been implemented, including in the sphere of control and oversight activities. As a result, Federal Law No. 248-FZ of 31.07.2020 "On State Control (Supervision) and Municipal Control in the Russian Federation" (hereinafter - the Law on Control) was adopted. State control (supervision) is a function of the state related to the sphere of public administration, which predetermines its public-law nature. At the same time, its goals set within the framework of the administrative reform have affected the content of the law and its nature - there has been a convergence of private law into control and supervision activities. A manifestation of this conclusion is Article 8 of the Control Law, devoted to the principle of incentives for good faith compliance with mandatory requirements, which implies that in its implementation preventive measures aimed at reducing the risk of harm are prioritised over control and oversight measures. The legal consequence of confirming the bona fides of a controlled person will be the reduction of the category of risk of harm, and separate legal means - independent assessment of compliance with mandatory requirements and conclusion by a controlled person with an insurance organization of voluntary insurance of risks of harm, if they are provided by the federal law on the type of control, act as grounds for exemption from planned control and oversight measures (respectively Art. 54 and part 9 of Article 25). Another example confirming the 'privatisation' of the institute of state control (supervision) are the provisions in the Control Act on the recognition of results of independent evaluation of compliance with mandatory requirements (Art. 54) and membership in self-regulatory organisations (Art. 55). Their legal consequence is the failure to carry out planned inspections in relation to controlled persons, unless otherwise provided for by the federal law on the type of control. This shows that the state has actually taken real measures to reduce excessive state regulation in the framework of control and supervisory activities. On the other hand, in the examined cases the transformation of public administration is taking place at the expense of businesses that incur additional financial expenses to implement the state's controlling function. However, doubts arise about the implementation by the business community of private law means of replacing planned inspections if this would cause them high financial costs. On this basis, the state should consider measures to stimulate their implementation, as is the case, for example, with environmental legislation for new technologies. The author declares no conflicts of interests.