Територіальна громада як юридична особа публічного права: розвиток доктрини й законодавства в Україні та за кордоном

Abstract

In the modern Ukrainian legal literature there is a lack of thorough research on the functioning of the territorial community as a legal entity under public law. The purpose of the article is to analyze the doctrinal sources and legislative principles of determining the territorial community as a legal entity of public law. This involves the following tasks: determining the specifics of the legal status of the territorial community as a legal entity under public law, a subject of civil and municipal relations; delineation of the scope of its powers; substantiation of the need for formation, implementation and protection of public local interests, implementation of relevant functions by the territorial community. Methodology. Methodological tools are selected in accordance with the stated purpose, specifics of the object and subject of research. The application of scientific tools was based on system-structural and interdisciplinary analysis. General scientific methods were used, first of all, the dialectical method of scientific knowledge of real phenomena, as well as during the study of the activity of local self-government bodies in Ukraine. Special methods were also used: system analysis; system-structural – to establish the content of the studied categories and legal phenomena, the formation of the conceptual-categorical apparatus; comparative law – for a comparative analysis of the legislation of different countries on the establishment and operation of legal entities under public law; methods of induction, abstraction and formal logic – to summarize the proposals and conclusions regarding the improvement of the domestic legal framework governing the creation and operation of legal entities under public law. The scientific novelty is to improve the definition of the meaning of the term “territorial community as a legal entity under public law”. It is proved that the realization of the right of local residents to self-organization and self-government, protection of legitimate interests of members of territorial communities through creation, management, strategic development of “territorial corporation” – territorial community – requires improvement of legislation, including rights and responsibilities of territorial communities. institutions. It is proposed to change the relations between territorial communities (residents) and central, other authorities, as well as to create a full-fledged legal entity of public law – territorial community, change the budget and tax policy of the state, to implement real decentralization (legal, financial, material, organizational and administrative). interests of local residents. Conclusions. The article provides a comparative legal analysis of the legislation of Ukraine and some foreign countries governing the establishment and operation of a legal entity under public law – “territorial corporation” (territorial community). It was found that the legislation of Ukraine differs from the legislation of most European countries. Legal entities of public law in Ukraine are created and operate in the manner prescribed by civil law, in contrast to some European countries, where “territorial collectives” are constitutional persons of public law and operate within public rather than private law. Some norms of the current legislation, according to which local self-government bodies are legal entities in accordance with the civil legislation, seem to be imperfect. Instead, it is advisable to consolidate the status of territorial communities as legal entities under public law