THE CONCEPT AND SCOPE OF MUNICIPAL GOVERNANCE ENTITIES’ COMPETENCE IN RUSSIAN FEDERATION AND CANADA

Abstract

УДК 342.25 The purpose of this article is to study the concept and the content of "competence" cate-gory in relation to the entities of municipal governance in Russia and Canada. The methods of theoretical analysis, along with legal methods, including formal-legal and comparative law methods are used to achieve this goal. In the article, the author notes the lack of consensus in legal science in determining the con-tent of "competence" category and its subjective identity. Some authors consider the compe-tence as a set of rights and obligations of public authorities (Yu.A. Tikhomirov, S.A. Avakyan), while others recognize the correct use of the word "competence" in relation to the public territorial collectives and institutions of public power in general (T.M. Byalkina et al.). The Russian legal model for determining the competence of municipal governance entities also implies the distinction between the concepts of "local issues" and "powers." Unfortu-nately, the domestic legislator does not provide for the clear distinction of these concepts, and there is also a lack of content specification of the issues to be addressed at the local level. Recent changes in law also call into question the relation between the municipalities’ competency model and the constitutional autonomy of local government. At the base of the approach to the definition of the competence of municipal government entities in Canada, as well as within the Anglo-Saxon model in general, lies the need for decentralization of functions, which cannot be effectively carried out by the central author-ities or the private sector (A. Sancton). The competence carrier here is a municipality as a form of public corporation. This does not lead to contradiction between this carrier and other municipal governance entities (specifically, local authorities), as the latter carry out activities for the competence implementation on behalf of the corporation. The approach to the municipality as a corporation originally anticipated the use of the ultra vires doctrine, which excludes from municipal jurisdiction the issues and powers not ex-pressly granted by statute. However, the analysis of the dynamics of legislative and judicial practice in Canada demonstrates a departure from this fundamental principle in favor of expanding the municipal competence, based on the goals of municipalities’ activities. The author believes that such an approach is contrary to the legal nature of municipal corporations, and therefore the rules governing the competence of municipalities and the rules governing their legal status in general need to be harmonized. Based on the above, the author concludes that in Russia and Canada both theoretical and normative work is required to eliminate defects and optimize the functional load of munic-ipal governance entities.