О соотношении акта управления и закона в новых реалиях

Abstract

The article deals with the problem of the correlation between the act of management and the law in domestic jurisprudence. Based on a systematic analysis using historical-legal, formal-legal and comparative-legal methods, the dominance of the law over the acts of management in the doctrine of administrative law and normative sources has been substantiated. At the same time, in modern Russia, there are situations when acts of management begin to play a leading role in the system of legal regulation. In the context of new realities, the author analyzed both trends in the development of legal acts of management and the risks associated with this process. The study resulted in the following conclusions: - today the legal act of management is both the basic element of public administration as management decision, and one of the key institutions of administrative law as management law; - new issues requiring scientific and regulatory resolution are: 1) wider use of the term "act of management", its adaptation in relation to the norm-setting of various subjects and levels of a single system of public power; 2) determination of the essence and place in the system of legal acts of management of their new types (instructions of the President of the Russian Federation; acts containing explanations of legislation and having regulatory properties; documents of strategic planning); 3) systematization of the types of legal acts of management and their legal status. - in post-Soviet Russia, there were situations when acts of management came to the fore, replacing (replacing) legislative regulation in the most important areas of public relations: the 1990s, when "law-substituting" decrees of the President of the Russian Federation were adopted on many important issues; pandemic conditions. The Constitutional Court of the Russian Federation confirmed the legitimacy of such regulation in the first and second cases. - in the conditions of unprecedented external economic pressure on the country in late February - early March 2022, the acts of the President of the Russian Federation introduced special economic measures in connection with the unfriendly actions of foreign states. Many provisions of the decrees contain not only serious restrictions on the rights and freedoms of individuals and legal entities, but also suspend the operation of certain legislative norms. However, the issuance of the relevant acts by the head of state is expressly provided for in the norms of the federal laws "On Security" and "On Special Economic Measures". Currently, acts of management occupy a de facto dominant position in the legal system of Russia. The positive thing here is that they allow us to respond quickly to new challenges, those unprecedented measures of sanction pressure that Russia is facing today. However, there are significant risks of such domination: legal, political, economic, organizational and technical, social, etc. The most expedient to minimize these risks seems to strengthen, maybe even "mobilize" control over the adoption and implementation of management acts by both state and public structures. The author declares no conflicts of interests.