Administrative Legal Relations Research Articles

Аdministrative and legal status of public associations of persons with disabilities as participants in public relations in the field of protection of their rights

In the article the author draws attention to the importance of social formations in the process of introduction of a democratic developed civil society. The author emphasizes that the right to association of citizens, including persons with disabilities, is one of the basic (basic) civil rights and is recognized by international law as an integral element of the legal personality of man and citizen. Emphasis is placed on the fact that public associations, which are established and operate to protect the rights and legitimate interests of persons with disabilities, providing them with equal opportunities with other citizens, are a form of their social protection. It is determined that the effectiveness of the implementation of civil legal personality of these associations depends on the legal status to which such associations are endowed with current norms. It is emphasized that in order to realize the interests of persons with disabilities defined by law, such public associations should be endowed with the appropriate status, which ensures the consolidation of their powers and provides an opportunity to realize the purpose of their creation. The concept of administrative and legal status of public associations of persons with disabilities as participants in public relations in the field of protection of their rights is formed and their character traits are highlighted. The article emphasizes that the administrative and legal status of public associations is characterized as a set of rights and responsibilities that are realized in the administrative legal relations that arise between public associations and state bodies, local governments. The author highlights the characteristics of a public association of persons with disabilities, namely the creation, existence and functioning separately from the state; formation on a voluntary basis; non-profit activity; self-organization and self-government.

Administrative-legal relations in the field of manufacturing and turnover of organic products

Administrative-legal relations in the field of manufacturing and turnover of organic products

INTELLECTUAL PROPERTY AS OBJECT OF ADMINISTRATIVE LEGAL PROTECTION

The scientific article is devoted to a complex research and definition of intellectual property as about object of administrative legal protection. At stars in communication fast development of means of communication, mechanisms of publicly legal responsibility for violation of intellectual property rights also need modernization that can defined only by judgment of separate intrinsic characteristics of intellectual property through a prism of administrative legal protection. By the author, it established that despite a wide range of application and attempts of interpretation of the political and legal nature of a phenomenon of administrative legal protection, uniform approach or steady the look in science of administrative law is absent. Taking into account the carried-out scientific search, it is noted that administrative legal protection of the relations in the sphere of intellectual property is carried out in the following forms: law-making – adoption of normative legal acts by public authorities concerning regulation of the public relations which arise on possession, use, the order to results of creative activity; law-enforcement – acceptance is administrative – imperious subject of decisions, obligation for performance by the enterprises, institutions, organizations irrespective of form of ownership and also other persons on implementation of state regulation of the relations in the sphere of intellectual property; law-enforcement – protection of the public relations by administrative and other public authorities, possession arising apropos, use, the order to results of creative activity from illegal encroachments and also prevention of offenses under the threat of application of measures of administrative coercion. The conclusion is drawn that the relations in the sphere of intellectual property as object of administrative legal protection can be considered as a complex of the actions which are carried out by authorized subject, directed to settlement and protection of the administrative legal relations arising in the course of implementation and realization of personal non-property and property rights from illegal encroachments and also preventions of offenses under the threat of application of measures of administrative coercion. Besides, it is proved that the principles of administrative and legal regulation find the reflection and in the relations in the sphere of intellectual property.

To the question on the need for expansion of administrative legal regulation of family relations

The object of this research is the questions of ensuring protection of persons from domestic violence in the Russian Federation. The subject of this research is the administrative legal relations associated with legislative establishment and practical implementation of the necessary means for prevention domestic violence. The author explores a number of other relevant steps towards expansion of administrative legal regulation in the Russian family relations, which pursue the goal of establishing administrative legal guarantees in the Russian Federation from unjustified intrusion into the family’s affairs. The application of formal-legal methodology based on the analysis of legal categories and constructs allowed determining the role and significance of administrative legal means for prevention of domestic violence proposed in legislative projects. The importance and novelty of the conducted research consists in comprehensive assessment of the provisions of the Federal Law Project “On Prevention of Domestic Violence in the Russian Federation” and introduced recommendations on its improvement. The relevance is defined by the fact that the problem of “domestic violence” has not previously been an object of due attention on behalf of the government.

Правовідносини у сфері ліцензування як об’єкт адміністративно-правової охорони

Розглянуто актуальні питання правових відносини у сфері ліцензування як об'єкта адміністративно-правової охорони. Вказано, що дослідження ліцензування через призму функцій державного управління дає можливість сформулювати поняття ліцензування як форми реалізації виконавчої влади щодо здійснення правового попереднього та поточного контролю за дотриманням ліцензійних вимог і умов, обліку ліцензованих об'єктів шляхом винесення органом, що ліцензує, адміністративно-правових актів у межах нормативно врегульованої процедури. Комплексно досліджено проблеми адміністративно-правових відносин, що виникають у галузі ліцензування. На основі аналізу наукової літератури визначено поняття адміністративно-правових відносин у галузі ліцензування, під якими слід розуміти врегульовані адміністративно-правовими нормами суспільні відносини, сторони яких є носіями взаємних прав і обов'язків, встановлених і гарантованих в адміністративно-правових нормах законодавства про ліцензування. Також описано характерні особливості адміністративно-правових відносин у галузі ліцензування. Наголошено, що до структури адміністративно-правових відносин у галузі ліцензування входять суб'єкти, об'єкти правовідносин і їх нормативний зміст. Розглянуто питання класифікації суб'єктів адміністративних правовідносин щодо ліцензування. Наведено три групи суб'єктів адміністративних правовідносин: наділені публічно-владними повноваженнями; не наділені публічно-владними повноваженнями; експерти. Акцентується увага на важливості формування системи суб'єктів адміністративного процесу у галузі ліцензування. Досвід правозастосовчої діяльності свідчить про те, що взаємодія суб'єктів ліцензійних правовідносин не забезпечує ефективного вирішення завдань за умов соціально орієнтованої економіки.

Административные правоотношения, возникающие при осуществлении профилактической деятельности участковых уполномоченных полиции

This article is aimed at the consideration of administrative legal relations that arise during the implementation of preventive activities of district police commissioners. The author pays attention to the peculiarities of these legal relations.

Methods and Principles of Activity of Subjects of Administrative-Legal Relations in the Field of Urban Planning

Methods and Principles of Activity of Subjects of Administrative-Legal Relations in the Field of Urban Planning

Administrative Contract as a Legal Form of Public Administration: Updating Doctrinal Approaches

The analysis of the features of administrative contracts, formed by the theory of administrative law, has been made for the purpose of their compliance with the current legislation. The perspectives of improving both the doctrinal understanding and the normative construction of the concept of administrative contracts have been clarified. It has been stated that administrative contracts are only one of the possible contractual forms of regulating the relations of public administration. Contractual regulators can be both formalized in the form of administrative contracts or unformalized, when the agreement between the authorities is fixed at the level of legal acts or when laws provide the possibility of reaching a consensus in vertical and horizontal administrative legal relations. The author has established the correlation between administrative contracts and other types of legal forms, including with administrative acts, the common legal acts. The perspectives for improving the list of types of administrative contracts have been stated. In particular, the author has substantiated that the list of cases of concluding administrative contracts, under the Code of Administrative Judiciary of Ukraine, focuses solely on the determination of the substantive jurisdiction of administrative courts and is only a basis for forming the scope of the concept of “administrative contracts”, which is much more wider than the legal definition.
 It has been pointed out that some of the statements made in the most recent writings on administrative contracts are falsified, including that administrative contracts and administrative acts are comparable incompatible concepts, and the initiative in concluding administrative contracts can come from an authorized subject, as well as from legal entities and individuals.
 The author has concluded about the significant influence of the normative construction of the concept of administrative contracts on its doctrinal understanding and the need to update the established ideas about its function as a legal form of public administration, which directs the study of those types of economic contracts, which in their essence are administrative contracts.

The mechanism of administrative and legal regulation of state control over the circulation of narcotic drugs, psychotropic substances and precursors: scientific and theoretical aspects

The article based on the analysis of scientists' points of view formulated the author’s definition of the legal construction “administrative and legal regulation of state control over the circulation of narcotic drugs, psychotropic substances and precursors”, reveals its signs.It is proposed to interpret it as a set of administrative-legal forms, methods and tools by which a set of control measures is determined, using which the state influences the activities of subjects and objects in the sphere of legal trafficking of narcotic drugs, psychotropic substances and precursors in order to reduce their non-medical consumption, their illicit trafficking, as well as related offenses. In the implementation of the administrative and legal regulation of such state control, its mechanism is of particular importance. The concept of “the mechanism of administrative and legal regulation of state control over the circulation of narcotic drugs, psychotropic substances and precursors” is established, its elements are analyzed. It was found that the elements of such a mechanism should include administrative-legal norms of law, administrative-legal relations, acts of interpretation and the implementation of legal norms, legal consciousness and legal culture.

CIVIL SERVICE RELATIONS AS A SUBJECT OF PUBLIC-LEGAL DISPUTE

The article is devoted to the definition of the state-service relations as the subject of a public-legal dispute, and on this basis develop separate proposals for the improvement of the current legislation and the practice of its application. The article determines that the subject of a public-legal dispute is administrative-legal relations, the object of which is: adoption, passing, dismissal from the civil service. The above applies to: state political positions and positions in state collegial bodies; positions of judge and prosecutor; places of work within the military, alternative non-military service, regardless of the power of the rights and obligations provided by the corresponding place of work; places of work within another civil service. Additional criteria for determining the administrative jurisdiction of a public-legal dispute are: direct practical fulfillment of tasks and functions of the state; the existence of labor relations between the civil servant and the body, the institution in which it operates. The jurisdiction of administrative courts includes public-law disputes arising from the relations of acceptance, employment, dismissal from work in public institutions, subject to compliance with the criteria specified in paragraph Such criteria as the existence of a power of attorney within the scope of the labor obligation or the basis for the establishment of the relevant labor relations (contract or oath of a public servant) should not be decisive for the attribution of the public law disputes under consideration to the jurisdiction of administrative courts. It is expedient to publish the Plenary Session of the Supreme Court clarifications regarding the allocation and necessity of applying the above-mentioned provisions and criteria. The expediency of inclusion of relations in connection with activity of persons on political positions to a circle of state-service relations as a subject of jurisdiction of administrative courts, with the exceptions provided by the law, is substantiated. Similar types of relations that arise in connection with the occupation of positions in local self-government bodies are inappropriately attributed to the range of these relations as an object of administrative legal proceedings, since they constitute another type of public service relationship.

Methods and Principles of the Activity of the Subjects of Administrative and Legal Relations in the Urban Planning Area

It has been stated that state policy in the field of construction should have a complete toolkit – a system of means for transferring decisions, tracking their implementation, adjusting plans and measures, attracting the necessary material and human resources, evaluating the implementation of the policy.
 There has been stated two views on the formation of methods: both methods of a separate branch of law (town planning or construction law) and methods in the field of urban planning with reference to the existing branch of law (administrative, economic, civil).
 It has been concluded that among the most studied methods of legal regulation inherent for different branches of law, one distinguishes imperative and dispositive methods. The imperative method is aimed at the emergence, alteration or termination of legal relations in the field of urban planning and is implemented by the system of public authorities through the enforcement which results in the issuance of a law enforcement act. Due to its provisions the subjects of these legal relations acquire specific legal rights and obligations. At the same time, the dispositive method is widely used by the subjects of administrative and legal relations in the field of urban planning. Besides, the author has focused attention on the widespread use in practice of: imperative, empowering, encouraging and recommending methods.
 It has been noted that there is no unambiguous position among scholars on the principles in the construction industry, in general, and the principles specific to the activities of the subjects of administrative legal relations in the field of urban planning, in particular.
 The author has defined the system of principles of the activity of the subjects of administrative and legal relations in the field of urban planning: a) general principles that determine the general provisions of the activity of public authorities and are based on the legal and organizational provisions of the Laws of Ukraine “On Central Executive Agencies”, “On Local Self-Government”, “On Local State Administrations”, “On Public Service”; b) special principles to be specified in building legislation.

Механизм административно-правового регулирования государственной службы в правоохранительной сфере и его содержание

The article analyzes the main theoretical approaches to understanding the nature and content of the main elements of the mechanism of administrative and legal regulation of civil service in law enforcement. The author justifies the position that with a wide understanding this mechanism form the administrative legal norms, administrative legal relations and the implementation of administrative legal norms as well as legal consciousness, legal culture, legal ideology, acts of behavior, etc. In a more narrow sense the content of the administrative-legal mechanism of the civil service in the law enforcement sphere is reduced to a set of administrative legal means (administrative law, law enforcement acts, administrative contracts, legal facts, subjective rights and obligations of participants in administrative legal relations, methods and techniques of public administrative influence), with the help of which a special legal administrative and legal regulation of the state civil relations in the field of law enforcement.

ADMINISTRATIVE LAW PROTECTIVE FUNCTION THEORETICAL-LEGAL ANALYSIS

Purpose: in the article theoretical and legal aspects of a protective function of Administrative Law have been analyzed; attention has been focused on its concept and attributes. Methods: dialectical, as well as logical methods: analysis, comparison, generalization. Results: the concept and types of a protective function of Administrative Law have been clarified, its attributes have been considered. Discussion: the concept and preventive, discontinuing, restorative, ensuring the bringing to administrative liability and imposition of administrative penalty nature of the protective function of Administrative Law. A protective function of Administrative Law, in our opinion, is the direction of this field of law influence, which has its preventive, interrupting, restorative, ensuring the bringing to administrative liability and the imposition of administrative penalties nature. Attributes of this function of Administrative Law are: 1) the permanence of preventive influence on social relations, which constitute the subject of legal regulation of this field of law;2) the situational nature of the use of coercive, restorative and suppressive influence on subjects of social relations, which constitute the subject of legal regulation of the field of law;3) the specific nature of ensuring the bringing to administrative liability;4) the possibility of variation in the application of measures of influence and administrative penalties, depending on the age criterion of a subject of an administrative offence. Types of a protective function of Administrative Law can be preventive and security, which in turn can be divided into punitive and restorative.We think that in the context of understanding the function exercised by Administrative Law to ensure the proper implementation of its subjects’ rights, freedoms and obligations in conditions of their lawful and unlawful behaviour, the meaning of protective and security functions is identical. We keep in mind that considering the first one only as protection in sense of preventive or the second one in the sense of bringing to legal liability is too narrow of its understanding. In our opinion, the protection of rights, freedoms, that is, the performing of the protective function by law is carried out not passively as a preventive mechanism of non-interference control of social institutions that under their lawful implementation, which is more likely to reveal the preventive function of law, but not the protective. We believe that the protective function of Administrative Law acts both in the lawful and unlawful “environment” for the implementation of rights, freedoms, prohibitions and obligations of the subjects of administrative-legal relations. In the first case, its nature is preventive, since the very existence of the rules of Administrative Law on those or other prohibitions for their observance, a procedure for the use of rights and fulfillment of duties, as well as measures of administrative warning, measures of administrative discontinuing, administrative penalties, as well as measures to ensure the proceedings on administrative offences and administrative restoration measures already has a protective influence on the subjects of administrative-legal relations. In the second case, it is a reaction to non-compliance with prohibitions, violations of the order to use rights or fulfilment or, in general, non-fulfilment of duties.

The issues of the nature and law-enforcement value of administrative practices

The present study elucidates approaches developed in the juridical science and defining legal practice as a socially significant legal activity of the participants. The authors propose their own social-philosophical and legal justification of legal (administrative) practice as a means of transforming reality. To this end, legal practice is acting as a necessary social, organizational and legal means of improving human activity in the implementation of state and municipal administration. The authors propose a social and philosophical understanding of administrative (state-administrative) practice as the result of state-administrative activities arising in the development of administrative relations and entailing the achievement of socially useful goals of state (municipal) administration in the form of an administrative legal act or repeated organizational act of the body and (or) public administration official (usages of administrative practices). In the course of the research the authors give their own understanding of forms of objectification of administrative practice when state and municipal administration is being carried out. Such forms include empirical non-normative legal act and the usage of administrative practice. The result of the study of the nature and forms of objectification of administrative practice involves the definition of its importance for law enforcement practice, which is mandatory practice for the participants of State and municipal administration when they implement internal State and municipal administration. A mandatory nature of empirical administrative legal acts for administered entities within the framework of external state and municipal administration is mediated insofar as they become participants of administrative legal relations within the framework of which the provisions of these acts are implemented. In other cases, these acts are not mandatory for the administered entities. In addition, an administered entity is not deprived of the right to act in compliance with the provisions of the law or a bylaw rather than in compliance with the provisions of a nonnormative administrative legal act that formally is not a normative legal act, but in fact it of regulatory nature. The study defines the meaning of the usages of administrative activities as one of the forms of objectification of administrative practices.

Судова правотворчість та адміністративні правовідносини: пошук взаємозв’язку

Судова правотворчість та адміністративні правовідносини: пошук взаємозв’язку

Administrative Legal Relations

Administrative Legal Relations

Non-Profit Organizations as Subjects of Administrative Law

The article considers the role of non-profit organizations in the system of public administration and focuses on the peculiarities of their administrative and legal status. The author highlights an increasing role of nonprofit organizations in the system of public administration, as it is connected with the evolution of the mechanism of public administration, its decentralization and attempts to use the mechanisms of self-organization. Due to the possibility of delegation of a number of public powers by the state to non-profit organizations, it is concluded that the composition of the participants with powers in the system of public administration has changed. By involving non-profit organizations in the system of public administration, the State pursues the goal of reducing the “visible” role of the State in various spheres of economy and a political sphere. Due to the transfer of certain public powers of the State to non-profit organizations, such organizations will combine different aspects of the legal nature of the organizations, in particular the intertwined civil law status and the administrative law status, since the same normative legal acts are used without taking into account the peculiarities of legal relations in which the relevant types of non-profit organizations participate. The difference between the legal status, the legal status of a non-profit organization as a participant of administrative legal relations and a non-profit organization as a participant of civil law relations is that in civil law a non-profit organization is considered as an organizational and legal form of a legal entity — a participant of transactions and relations regulated by civil law; under administrative law and in administrative-procedural relations it is treated as a form of implementation of public rights of citizens in the sphere of public administration, certain public powers of the State in the sphere of public administration. Attention is drawn to the duality of the legal status of non-profit organizations, that is associated, among other things, with different moments of their legal personality. The moment of emergence of capacity under administrative law and legal capacity differs from the similar moment of emergence capacity under civil law and legal capacity.

РОЗВИТОК АДМІНІСТРАТИВНОГО ПРАВА, АДМІНІСТРАТИВНОЇ ТА ПРАВОВОЇ ДОКТРИНИ В РЕСПУБЛІЦІ БІЛОРУСЬ ПІСЛЯ ЗДОБУТТЯ НЕЗАЛЕЖНОСТІ

In Belarus, the national doctrine of administrative law has been oriented to a large extent towards the Soviet and modern Russian legal traditions, albeit with some distinct contextual features. In this work, we review the positions of some of the most authoritative scholars, and make a number of summative judgements and conclusions. The primary aim of administrative law is to provide and create a regulatory framework for the exercise by the government authorities of their mandate and powers. The objective of administrative law is to govern and regulate the interactions between the executive power and other legal subjects in the performance of its functions. In the Belarusian doctrine, the predominant position of most scholars is that the scope of administrative law should include the administrative legal relations arising in the course of the exercise by the public administration bodies of their administrative functions, including of regulatory mandates towards external bodies, and in relation to the enjoyment by the citizens of their rights and liberties. In Belarus, the system of administrative law is customarily understood as an ordered framework composed of institutions, norms and domains, which may be divided into four sections. The first section encompasses the institutions that determine the legal status in the area of public administration of the citizen, of state bodies, of non-governmental organizations and of civil servants, it also incorporate the institutions that exercise control over the subjects of administrative law. The second section encompasses the regulations that govern liability under administrative law. The third section incorporates the norms of administrative procedure. The fourth section includes provisions that constitute the administrative legal framework for the management of the economy, socio-cultural and other spheres. Each section is comprised of the relevant legal institutions and sectors. The greatest challenge for administrative law of in Belarus seems to be the definition of the administrative procedure, which has not changed since the Soviet period. The alternative propositions presented in this work are of a purely theoretical character and should eventually be superseded by a legal definition, which views it as a distinct type of legal procedure governed by the norms of administrative procedure law grounded mainly in the Code of Execution Procedure for administrative torts. The legal term “administrative procedure” in Republic of Belarus is still identical to the concepts “administrative tort procedure” or “procedure for the hearing of administrative tort cases”. The main method of this study is that of integrated comparative analysis, with elements of the historical and formal-logical method. As a part of a comprehensive study in administrative law in the former Soviet Union, this work is intended to make a contribution to academic debate, by deepening and broadening its scope.

Administrative Legal Entities of Private Legal Entities as a Status Component of the Legal Regulation Mechanism: Characteristics of Elem

The article is devoted to administrative legal personality, which is part of the structure of the administrative-legal personality of private legal entities. At the same time, it is argued that, on their own, the rules of law cannot influence the behavior of their addressees, therefore the only instrument by which legal regulation is used to help ensure such influence is the mechanism of legal regulation within which the functions of law are implemented, and specific life situations are addressed. It is noted that, like any state mechanism, the mechanism of legal regulation consists of the relevant elements, namely: norms of law, legal relations, and acts of realization of rights and obligations. Thus, we can conclude that the disclosure of the features of the mechanism of legal regulation is possible only if a thorough study of its elements. Thus, each state that there is no language and there can be no legal regulation, which in its nature and nature is different from other types of regulation. It should also be remembered that, at its core, legal regulation is not material but is done through the consciousness and will of the people. It is perfect. However, any ideal process cannot occur without the participation of matter. Based on all the above, it can be stated that one of the constituent parts of the mechanism of legal regulation is legal relations. It should be remembered that public relations also have an internal structure to which the subject, object, and content relate. However, the absence of at least one of the elements of the relationship automatically complicates, or even precludes their very existence. The same rule applies to the mechanism of legal regulation. Thus, the study of each of the components of the mechanism of legal regulation has the same scientific significance and importance as the study of the mechanism itself. Therefore, if we conduct a study of administrative-legal personality, then it must take into account its place and the impact on legal regulation as a whole. Legal personality nowadays also exists in administrative law, although the very concept of “legal personality”, as a certain characteristic of a legal entity, originally originated in civil law. However, it should be remembered that the method of administrative law is significantly different from civil law, and therefore the use of civil law expertise in the field of legal personality should be used with extreme caution. In his desire to ensure state control and the possibility of applying state coercion, the legislator adapted the rules of public law to the construction of a legal entity of private law. On this basis, it should be noted that different types of legal entities under private law would have different levels of administrative capacity. That is why the legal capacity of legal persons under private law can be recognized as administrative law, both social and legal capacity, and the need to be the subject of administrative-legal relations. Keywords: administrative-legal personality, legal entity, private law, mechanism of legal regulation.

Загальна характеристика адміністративно-правових відносин у сфері малої приватизації

Загальна характеристика адміністративно-правових відносин у сфері малої приватизації