Subjects Of Public Law Research Articles

Main trends in the development of financial law as a public law branch

The article analyzes the tendency to expand the subject of financial and legal regulation in modern conditions, which is due to objective reasons, which, in particular, include the increase and complication of relationships between subjects, informatization of the financial sector, all areas of financial activity, the emergence of new types of social relations, which objectively need to be regulated by financial law and which include the formation of decentralized non-state monetary funds, but intended to ensure public interests. The emergence of new groups of relations in areas not previously regulated by financial law, in particular in the financial market, which in modern conditions are also becoming the subject of public law, including financial, regulation. The changes taking place are also associated with new characteristics of the method of financial law. Emerging new financial relations are objectively included in the functioning of the financial system of society, which in turn influences the construction of the system of financial law, its complication, characterized by the emergence of not only new institutions, but also sub-sectors of financial law.

The State as a Subject of Public Law: A Theoretical and Legal Aspect

The State as a Subject of Public Law: A Theoretical and Legal Aspect

Subjects of public law: interpretational aspects of normative provisions of international legal instruments and legislation of Ukraine

The article examines the normative provisions of international legal instruments and national legislation that contain defining aspects of subjects of public law. It is established that the concept of «subject of public law» is closely related to the concepts of «public service,» «public interest,» and others. The analysis of the content of these concepts demonstrates that subjects of public law are endowed with rights and legal obligations aimed at safeguarding, regulating, and ensuring the public interest. The key aspects of the latter are identified in international legal instruments. In particular, the normative provisions of the Universal Declaration of Human Rights indicate that public interest is the aspiration to achieve the common welfare in society. The Charter of the United Nations contains provisions that perceive public interest as the absence of threats to peaceful coexistence of all nations.Based on this basis, public interest is defined as a priority task for states, public authorities, officials, etc., that have societal, state, or international significance and are driven by the necessity to achieve the common welfare of society.It is argued that subjects of public law should include the state as a whole and all state bodies (including those without legal personality) that are integral parts of the state mechanism. They have their own structure defined by law, clearly delineated powers in the exercise of state authority, and also encompass any private law entity that performs the functions of a state body. Public authorities without legal personality include territorial bodies of the central executive authority responsible for implementing state customs policy and central executive authorities responsible for implementing state tax policy. Legal entities of public law are also considered subjects of public law, despite not being part of the executive authority system. The constitutional and legal status of local self-government allows it to be characterized as an independent form of public authority alongside state authority within a territorial community. In addition to the mentioned subjects, other subjects of public law are identified, such as state registrars and subjects of state registration, who are authorized by law to provide administrative services.It is noted that the study of normative legal provisions containing defining aspects of subjects of public law enhances the cognitive possibilities for a systemic understanding of the subjective-substantial component of the national legal system. It contributes to the improvement of the functioning and interaction of public authorities, which is an important factor in building the rule of law and ensuring the rights and freedoms of individuals and citizens.The most significant features of subjects of public law are identified, namely: they are formed in accordance with the norms of public law, their purpose of creation and activity is to ensure the realization of public interest, their establishment and functioning are not dependent on private will and private interests of individuals, they facilitate the implementation of state governance and/or the performance of tasks and functions of the state as envisaged by the Constitution and laws of Ukraine. They are empowered to exercise state authority within the scope of their powers, based on and in the manner prescribed by legislation.Subjects of public law are proposed to be understood as participants in public legal relations that are established in a defined manner by imperative legal norms in order to ensure the realization of public interest.These subjects are endowed with state authority and empowered to engage in socially significant activities to achieve this goal.

SELF-REGULATORY ORGANISATIONS: CONTROL OVER THE ACTIVITIES OF ITS MEMBERS AS A NEW MECHANISM OF NON-STATE INCENTIVES OF HONEST BEHAVIOUR OF BUSINESS SUBJECTS

The article examines the problems associated with determining the legal status of self-regulatory organisations. In particular, based on the analysis of existing opinions, the authors come to the conclusion that self-regulatory organisations are of a mixed nature, acting under certain conditions both as subjects of public law and as subjects of private law. The functions of self-regulatory organisations to carry out control measures in relation to their members are not alien to private law. On the basis of this conclusion and taking into account the latest changes in the current legislation on state control, the authors consider the new authority of the regulatory authorities to recognise the control exercised by self-regulatory organisations over the activities of their members as a mechanism for non-state stimulation of conscientious behaviour of business entities. The authors conclude that for the effective practical implementation of the mechanism under consideration, it is necessary to provide additional legal tools, the essence of which is revealed in the article.

Platni sistem državnih službenika u Sloveniji

The right to salary is the basic right of civil servants. The peculiarity of the salary system in the Republic of Slovenia is reflected in the fact that the salary system in the public sector refers to the entire public sector, which consists of budget users (state bodies and self-governing local communities, public funds, public agencies, public institutes and other subjects of public law that are indirect beneficiaries of the state budget or local community budget). The wage system in the public sector is based on the Law on the wage system in the public sector and the regulations and collective agreements adopted on its basis. The law on the wage system in the public sector establishes fundamental and unique rules for the functioning of the wage system and a unique methodology for the calculation and payment of wages for all public sector activities. In addition to the basic salary, under the conditions established by the normative framework, civil servants have the right to bonuses and part of the salary based on work performance. Part of the salary for work performance was also known in the previous salary system, but the regulations differed slightly in certain industries. The new system standardized the schedule and introduced three types of work performance. One of the basic principles of the current salary system in the public sector is precisely the principle of salary incentives. In the paper, the author points out the positive effects of the introduction of the new payment system in the Republic of Slovenia, but also its shortcomings.

ВЛАСТЬ ГОСУДАРСТВА КАК ЦИВИЛИЗАЦИОННАЯ ДОМИНАНТА В РОССИИ: К РЕСУРСАМ МЕТОДОЛОГИЧЕСКОГО ПЛЮРАЛИЗМА

The article is devoted to the study of the power of the state - the dominant actor in the institutional complex of the Russian local civilization. In a conceptual way, the research program is substantiated, constructed on the basis of the principle of methodological pluralism, synthesis of achievements of general legal theory and other areas of socio-humanitarian knowledge. Taking into account the achievements of the civilizational approach to the typology of state and law, the author actualizes the socio-psychological assessments of state power as the dominant subject of public law in Russia.

Protection of the constitutional right of a person to property (property) in the security obligations of pledge and surety

The current stage of development of the national legal system of Ukraine is characterized by the development of various forms and ways of protection of the constitutional right to property, creating conditions for the exercise of constitutional rights and legitimate interests of individuals in property relations and realization of difference property rights.The key principle of the constitutional regulation of private law relations is the equality of all participants, which is a significant achievement of the modern legal system. The most pronounced detection of the principle of equality is embodied in the field of civil law, where the main method of regulation is the legal equality of participants. It allows protecting the rights and interests of individuals along with the interests of the state and other subjects of public law, which in the field of civil law have no privileges in connection with their status, have no authority over other subjects of civil law and are legally equal to individuals.The issue of property is, in general, key in the constitutional regulation of economic relations, which is directly related not only to property but also contract law, because, first, entering into appropriate legal relations, their sub-jects satisfy their own property and other interests, and such actions should not harm the interests of others. And secondly, most of the ways to protect violated property rights (property) are implemented within the framework of a binding legal relationship.A special institution is the provision of obligations, as it is designed to protect the right of a person to property, which is used as a guarantee of protection of such rights in a contractual relationship. This institution is a set of legal norms that regulate the relationship related to the creditor’s rights to the debtor’s property or claims to third parties, establish additional mechanisms and means of state legal protection to ensure the actual and proper performance of obligations ultimately guarantees the protection and defense of the right of a person (creditor) to his property.In this article defines that the specific types of security for the obligation are pledge (mortgage) and surety, which allow to involve in guaranteeing the protection of a person’s right to property in contractual relations of third parties, in particular in the case of pledge with a guarantor. Pledge and surety are different types of pledge in their means, so the rules governing the surety do not apply to the creditor’s legal relationship with the property guarantor, as he is liable to the pledgee for the debtor’s performance of the principal obligation only within the value of the pledge.Pledge and surety may give rise to a new accessory (additional) obligation between the creditor and the guaran-tor or property guarantor. In order to ensure equality as a key principle of constitutional law and the method of civil law regulation, it seems appropriate to supplement the legislation of Ukraine with the provisions on the conclusion of a surety agreement, only with the consent of the debtor; also substantiated the opinion on the need to give the consent of the guarantor (property guarantor) to assign the right of claim to him under the surety agreement (prop-erty surety).

Վրաց Ուղղափառ եկեղեցու և հայ Առաքելական եկեղեցու Վիրահայոց թեմի իրավական կարգավիճակի օրենսդրական կարգավորումը հետխորհրդային Վրաստանում

Since independence, Georgia has not adopted a law regulating the field of religious organizations and defining their rights and obligations (“Law on Freedom of Conscience and Religious Organizations”). The relations between the latter and the state are regulated by a constitutional agreement approved by the Parliament as of October 22, 2002. Unlike other churches operating in Georgia, GOC is the most closed institution in the country with exceptional privileges, great economic and financial potential, the activity of which no state body can control, inspect or demand reports. Instead of passing the law on “Freedom of Conscience and Religious Organizations”, amendments to the Georgian Civil Code in 2011 allowed religious unions in the country, including the Armenian Apostolic Church, to register as a subject of public law. The mentioned changes, however, did not solve any general problem; the law did not enable the AAC Georgian Diocese to return the heritage taken away during the Soviet and post-Soviet years. The law did not regulate the mechanisms of the AAC Georgian Diocese acting as a religious organization in the field of public law; the Diocese continues to face multifarious administrative and legal problems while carrying out cultural, educational, social, charitable, office as well as activities of other nature and content.

The Subject of Acceptance of an Offer, Promise or Receipt of Illegal Benefit in the Criminal Law of Ukraine

The paper is devoted to issues on criminal and law characteristic of subjects of composition of a criminal offense that is provide by Article 368 of Criminal Code of Ukraine (acceptance of an offer, promise or receipt of illegal benefit by an official), and to analysis of current legislation in this field. Particular aspects of forming of legal regulation of criminal liability of officials for committing a criminal offense related to accepting an offer, promise or receiving an illegal benefit are researched. The issue of expanding the range of subjects of a criminal offense under Article 368 of the Criminal Code of Ukraine is analyzed. Experience of Criminal and Law Regulation of liability of certain categories of officials according to legislations of Austria, Norway, and Holland, Canada is analyzed. There is stressed that the analysis of the subjects of the crime under Article 368 of the Criminal Code of Ukraine and given in Note 1 to this Article allows to propose the text of the list included in Note 1 of Article 368 of the Criminal Code of Ukraine in the following wording, adding to the list of officials «Commissioner of the President of Ukraine for the Rights of the Child, Commissioner of the President of Ukraine for the Rights of Persons with Disabilities, Business Ombudsman, Chairman of the Accounting Chamber»; «Officials, in Articles 368, 3685, 369 and 382 of this Code are: 1) the President of Ukraine, … People’s Deputies of Ukraine, the Commissioner for Human Rights of the Verkhovna Rada of Ukraine, the Presidential Commissioner for Children’s Rights, the Presidential Commissioner for the Rights of Persons with Disabilities, the CMU Business Ombudsman, Chairman of the Accounting Chamber, Advisers and Assistants to the President of Ukraine, Chairman of the Verkhovna Rada of Ukraine, Prime Minister of Ukraine». There is outlined that current legislation enshrines the «duality» of the legal status of a Civil Servant. It is expressed in existence of Public Servants as a subject of Public Law, and as a private person — a subject of Private Law relations outside the performance of statutory obligations and rights. Obviously, that this legal «duality» influences on the character of Public Relations which is a subject of basic research in public administration, legal deontology, administrative and criminal law.

Legal entities of public law as participants in civil relations

The article examines the issues of the legal status of legal entities of public law. At the basis of the division of legal entities into legal entities of private and legal entities of public law, the criterion of the method of creating a legal entity is applied. At the same time, one criterion is not enough to distinguish between these types of legal entities, we propose to supplement this criterion with criteria for the purpose of activity and the degree of dependence of a legal entity of public law on a subject of public law. The article considers the characteristics of a legal entity of public law, which can be classified into general and special. The general ones include: organizational unity, the presence of separate property, acting in circulation on its own behalf, civil liability; special features include: creation in an administrative order; satisfaction of the state interest; do not own a property. The article analyzes the issues of responsibility and legal regime of property of legal entities of public law. Today, the search continues for an effective model of property law regarding the legal regime of legal entities of public law. As a replacement for limited property rights, such as the right of economic management and the right of operational management, a property management agreement is proposed. The issues of correlation of the concepts "subject of public law" and "legal entity of public law" are investigated. These concepts should not be identified, since the concept of a legal entity of public law is broader in scope than the concept of public law formation

Правовая природа российских институтов развития

In the article, development institution is considered from its legal form and nature, in which it can and should carry out its activities, namely, as a subject of public law. The relevance of this article is expressed by the introduction in the Russian law of a public law company concept, which is a new alternative to state-owned corporations. On July 3, 2016, Federal Law No. 236- FZ “On Public Law Companies in the Russian Federation and on Amending Certain Legislative Acts of the Russian Federation” (with amendments and additions) was adopted. After its adoption, a new wave of discussions began to take place on the active use of such concepts as a legal entity of public law in Russian legislation. At the legislative level, it became necessary to implement general principles regarding legal entities of the same type in the framework of the legal matrix, into which it is possible to attribute all known subjects of law. The special legal nature of development institutions requires a particular legal form that would meet the goals and objectives set for them. The use of almost all the provisions of the legal entity of public law theory, in modern practice, can be the correct decision to create the necessary legal form for development institutions. This will allow taking into account the features of the property base of their activities, peculiarities of management of the development institution, setting goals when making decisions, the ability to use specific tools of state regulation of economy in the implementation of public functions assigned to the development institutions.

Subjects of public law of the financial market: concept and types

Subjects of public law of the financial market: concept and types

Legal provision of financing the health care sphere in Ukraine

The author of the article has studied the main disadvantages of legal provision of health care financing in Ukraine and the ways of their elimination.
 The legal principles of medical reform and the basic principle about the autonomy of medical institutions – “a patient-money” have been analyzed. It has been stressed that the subjects of public law in the person of state and municipal health care institutions according to the Constitution of Ukraine are obliged to provide free medical care, however, with the adoption of the Law of Ukraine “On State Financial Guarantees of Medical Care of the Population”, a partial payment for medical services has been established.
 The author has offered to provide additional guarantees for disadvantaged population by developing and financing social programs for the availability of medical care.
 The cases of the access to information about a patient without his consent have been considered. New theoretical conclusions, generalizations and suggestions have been formulated, in particular, the author has offered the definition of the concept of “direct threat to life” in the context of regulatory acts regulating financing of health care in Ukraine. It has been stressed that a direct threat to life is the emergence of conditions under which there is a risk of death of a patient without the provision of medical care.
 It has been clarified that the main disadvantages of legal provision of health care financing in Ukraine include: non-compliance of certain provisions of the mentioned Law with the provisions of the Constitution of Ukraine; the risk of arrangements between family doctors and doctors in different areas in regard of sending patients for further treatment; the lack of security guarantees of personal data of patients in the electronic health care system; the risk of reducing the number of medical institutions in Ukraine.
 It has been concluded that the reform of the health care system necessitates amendments to the Art. 49 of the Constitution of Ukraine and adoption of the Concept of Financing and Development of the Health Care System, which would involve the introduction of a mixed model of financing health care field.
 The perspective direction of further research the author believes that scientific development of propositions on improving liability for offenses in the sphere of health care financing in Ukraine.

Interaction and activity coordination of territorial customs bodies of the State fiscal service of Ukraine with local state administrations and local self-government bodies

This article is devoted to problematic aspects of the interaction and activity coordination of territorial customs bodies of the State Fiscal Service (SFS) of Ukraine, with local state administrations and local self-government bodies.The article provides the author's definition of «interaction», which is «a pre-determined and agreed procedure of departmental, interdepartmental and supra-departmental relationships between the subjects of public law, which is carried out in certain areas of their activities and within their competence as regards the implementation of the tasks assigned to them in accordance with the legislation of Ukraine».In addition, the author draws legal parallels between the concepts of «interaction», «assistance» and «coordination» in the field of state customs affairs. In this connection it is proved that the interaction in the sphere of state customs business is the principle of Ukrainian SFS customs houses activities and their means of contact with other state bodies and those of local self-government for the purpose of the Ukrainian SFS customs interaction with other state authorities and local self-governments in the sphere of state customs business and the implementation of certain concerted actions aimed at a particular result. At the same time, coordination as measures of administrative-legal nature determining the ways to regulating the resolution of the issue of interoperability between the public law bodies in the field of state customs affairs is the function of the Ukrainian SFS customs, other state bodies and those of local self-government, which aims at creation of such a model of relations between the actors, which enables implementing the agreed objectives with the least expenditure of time and money.Based on the analysis of the current legislation of Ukraine on state customs affairs, the author discloses the main aspects of the Ukrainian SFS territorial customs bodies’ activities promotion, and coordination and interaction of the Ukrainian SFS territorial customs bodies with local state administrations and local self-government authorities.It is also established herein that the interaction acts as an integrating factor, through which abilities of the Ukrainian SFS territorial customs bodies, other bodies of state power and those of local self-government are conditionally joined in some coherent system based on a common objective, and therefore it is necessary to clearly define the concept of «interaction» in the sphere of state customs affairs securing it in the provisions of the Customs Code of Ukraine and clearly outlining the forms of such cooperation.The author focuses on the fact that despite the importance of interaction between the Ukrainian SFS customs houses and local state administrations and local self-government bodies in the sphere of state customs business, which activates the solution of a whole range of issues, namely arranging for the frontier, interregional and international cooperation, ensuring the rule of law and public order, fighting against corruption and organized crime, etc., an adequate legal regulating mechanism for such interaction has not yet been established. Besides, the issue of forms of the Ukrainian SFS customs interaction as the territorial bodies of SFS of Ukraine with other executive power bodies and the ones of local self-government is addressed.Based on the results of the study the author notes that the interaction of the Ukrainian SFS customs offices and local state administrations with local self-government bodies is an inherent quality, link and component of the Ukrainian SFS Customs offices functioning organization, which aims to improve the state customs service implementation standards by the Ukrainian SFS customs houses and to ensure the said implementation efficiency. However, in the course of interaction of the Ukrainian SFS customs with local state administrations and local self-government bodies each of the mentioned organizations specializes in solving their specific tasks in accordance with their subject expertise, and forms a clear organizational system. The complementarity of such kind helps to improve the state customs affairs conductance quality and is realized through the coordination of performance of the Ukrainian SFS customs offices, local state administrations and local self-government bodies as the interaction subjects through normative, informational and analytical provision for the interaction and concretization of the activities of each subject within the planned activities.

Legal Nature and Legal Personality of the Self-regulatory Organizations (SRO)

There is uncertainty whether self-regulatory organizations refer to the entities of public law or private entities. Russian legislator, on the one hand, has defined SRO as non-profit, based on the membership of subjects of professional and business activity (i.e. not created on the state initiative) organizations. On the other hand, they are organizations with authority to adopt regulations of professional business activities and control over their observance. Vesting of these powers on SRO has led to the fact that among scholars involved in research of questions of creation and activity of Russian self-regulatory organizations, the different points of view of their legal nature have been put forward: some of them have classified the SRO as subjects of public law, and the others consider them as private law entities. In scientific literature one can find opinions that SRO is a new legal form of legal entities that they belong to a special group of entities – "self-regulating". The authors consider different points of view of scientists, about the legal nature of self-regulatory organizations and make a conclusion about the presence of self-regulating organizations of the characteristics peculiar to both the private entity and the entity of public law, that allows us to talk about their mixed legal nature. DOI: 10.5901/mjss.2015.v6n6s5p91