Теоретико-методологический анализ правовой природы публичного контроля

Abstract

Introduction. In modern legal science, there is no universal and uniform approach to defining the concept of “public control”, which predetermines and actualizes the need for a detailed study of the legal nature of this phenomenon, its content and the functions that it performs in the state and society. Theoretical analysis. The analysis of doctrinal approaches to disclosing the content of public control, formed in the system of legal science, allows us to draw a conclusion about a differentiated definition of this phenomenon. On the one hand, public control is considered as a combination of state and municipal types of control, which corresponds to the constitutional and legislative approaches to understanding public power. Another point of view complements the previous perspective with another type of control – public control, which involves the participation of civil society institutions in the implementation of this function of public authority. Empirical analysis. It has been revealed that the concept of “public control” is practically not used in the Russian legislation. At the same time, in judicial practice this category is often used in the texts of decisions of higher courts, but its interpretation, like that in the legal doctrine, is also very heterogeneous. Results. The assessment of the theory and practice of using the concept of “public control” allowed us to come to the following conclusions. The category of “public control”, in contrast to the term of “public power”, does not have a legal meaning, that is, it is not enshrined in the Russian legislation, which leads to the need to identify its theoretical significance only through the analysis of doctrinal approaches established in legal science. Based on the analysis of theoretical approaches to the meaning of public control, as well as materials from judicial practice, it is possible to conclude that this concept is used in a diametrically opposite semantic context. Applying the concept of public power as a combination of state, municipal and public ones, it is proposed to consider public control in a similar context, as a combination of state, municipal and public types of control.