Справедливое соотношение частных и публичных интересов и пропорциональность

Abstract

The issues of interaction, coordination and balancing of interests are considered. Despite many studies, this issue remains relevant and has a direct connection with the ideas of justice. The purpose of work is to consider the ratio of private and public interests as a result of the application of proportionality. The methodological basis of the study is: general and specific scientific methods, namely logical; techniques such as analysis, abstraction are used, and a system-functional approach is applied. Speaking about balance, the emphasis is on the fact that a static balance of interests clearly cannot be the optimal form of their ratio, since in certain changing circumstances it is objectively necessary to change it, shifting the emphasis, establishing the priority of one interest over another. The law cannot cover all relations with its regulation, therefore instrumental principles will contribute to the settlement, in particular the principle of proportionality, which will consider (resolve) the confrontation between private and public interests. It is noted that although the principle of proportionality, as a rule, is not directly named in normative acts, but is translated in legal interpretative acts devoted to human rights, its application is determined by the presence in them of general or special provisions that allow for the limitation of rights subject to a number of certain conditions. Proportionality is considered as: adequacy, the principle of proportional limitation of rights and freedoms; type of judicial control; concept; methodology – all this once again speaks of the multidimensionality of the scope of application, and at the level of state (national) doctrine – of the peculiarities of legal understanding and legal culture. There are several methods for determining proportionality, which vary depending on the scope of application, types of legal understanding and the specific doctrine dominant in a particular community. It is concluded that balance or proportionality (equilibrium) in the meaning of fair provision and implementation of private and public interests is associated with the issue of the specifics of the stage-by-stage application of the instrumental principle of proportionality, and any restriction of the rights of subjects at the legislative-creative level must be subject to the algorithm of proportionality , while any priority between interests will be proportional to the extent that it is recognized in a particular society, as well as how fair and democratic the discourse was. As a result, the balance of interests will be recognized as that ratio in which the priority of one of them is not excessive and does not introduce suboptimal conflict in any area of relations, there is no negative dynamics in the socio-legal, political and legal environment.