Balabiev Kairat Rakhimovich KazGYuU competitor.
Administrative - legal relations in the
executive branch.
Every
branch of law regulates certain relationship, ie relations regulated by law. In
particular, the civil law peculiar to regulate civil matters (property and
associated moral rights), the criminal law - to regulate the relations
connected with crime and punishment. What relationship governed by
administrative law? First of all, we should
point out that the administrative law - is an independent branch of the legal
system of Kazakhstan. [1] branch of the law differ from each other on the
subject and method of legal regulation. That is the subject of
administrative law consists of those relationships, which will be discussed
further.
Administrative
and legal relations - is regulated by rules of administrative law, public
relations in the sphere of executive power.
Administrative
and legal relations represent a kind of legal relationships, diverse in nature,
legal content, according to the participants. They are typical of all the basic
features of any legal relationship, such as: the primacy of law, so that
relationship is the result of the regulatory impact on this public attitude of
the legal norms, thus giving a legal form, regulation of the legal norm of
action (behavior)
aspects of this relationship; correspondence mutual
obligations and the right of the parties relationship, defined by the norm,
etc.
However,
it should allocate some of the features of supplementing the general
characteristics and are able to serve as the basis for the delimitation of the
administrative-legal relations from other relations. These features include:
- Rights and obligations of parties to these
relations are connected with the activities of executive bodies of state and
other entities of the executive power;
- Always one of the parties in such relationships
stands the subject of administrative power (authority, official,
non-governmental organization endowed with state-of authority);
- Administrative relationship almost always occur
at the initiative of one of the parties;
- If the violation took place legal and
administrative rules, the offender is liable to the state;
- Settlement of disputes between the parties,
usually implemented administratively.
- The administrative relationship of power
relations are built on the basis of "authority-submission" where
there is no equality between the parties A test of command is a relationship of
dominance, because it is predetermined and overriding priorities of state-management
[2].
In summary, the above can give an appropriate
concept of administrative relationship, how to resolve the administrative law
managerial social relation in which the parties act as carriers of reciprocal
rights and duties established and guaranteed by the administrative law.
Administrative
and legal relations are directly related to the practical realization of tasks,
functions and powers of the executive power in the process of state-management
activities. This feature of a certain effect on the behavior of any members of
such legal relations, their responsibilities and rights necessarily involve the
practical implementation of executive power in the center of the field.Interests
of another kind, caring for the state and society, provided, if they have a
distinct specificity in the other legal. Therefore, a defining feature of the
administrative-legal relations is that they consist mainly in a special area of
public life - in public administration.
It is
worth noting also that the administrative relationship characterized by a
certain subject. Always one of the parties is the official or the authorized
agent of the executive power (in the broad sense of government).
In other
words, despite the fact that the administrative-legal relations practice may
involve various parties, they always have indispensable party, without which
this kind of relationship does not arise. Such a feature is observed in the
administrative relations as a direct effect of the nature of the power of
state-management.For example, a citizen can not act in a similar role, although
a potential participant in a variety of administrative and legal relations.
Administrative
relationship arise at the initiative of either party. However, consent or
desire of the second party is not in all cases, the necessary condition for
their occurrence. They can also occur against the wishes of the other party or
her consent. This characteristic most distinguishes them from civil law
relations.
As
mentioned above, the administrative and legal relations arising in the field of
public administration. However, not every social relationship in the field of
public administration is included in the range of relations which are the
subject of administrative law [3].
All legal
consist of certain elements: subject, object and content of the relationship.
The
content of the administrative relationship there are two sides: the material
(the behavior of subjects) and legal (subjective legal rights and
responsibilities).
The
immediate object of administrative relationships is a voluntary behavior of man
and his deeds.
Administrative
law accurately determined between what subjects should arise relationship, what
are the rights and obligations of the parties. Thus, the relations of citizens
associated with the call for military service, obtaining the rights to drive
vehicles, occur when pre-defined circumstances, with certain organs of
executive power, and the rights and obligations of the parties are well
established legal norms. At certain periods, the specific form certain
recipients, organizations, for example, must send statistics, reports,
inquiries.
Existing
administrative and legal relations rights and interests can be protected by the
courts, but such cases are not dominant. Basically the same rights of
participants in such relationships, disputes between them resolved in an
administrative procedure: the subject of management, which was (is) a party to
an administrative relationship, the parent or other executive authority. The
subjects of the executive, empowered - to solve, while others have a right
relationship appeal against such decisions.
Moreover,
the subjects of executive power in many cases, are entitled to apply a variety
of interventions to other subjects of legal relations.
In
particular, they may demand an explanation, give instructions to deny the
request, do not assign a rank to use the funds in administrative, disciplinary
enforcement.
It should
also be emphasized that for civil legal relations is characterized by the
responsibility of one party over another. Administrative law established a procedure for accountability of the
parties' legal and administrative relations in case of violation of the
requirements of administrative law. In this case, the responsibility of one side
to the other party is not legal, but directly to the state through its
appropriate body (official,It is the executive bodies (officials) empowered the
independent action on violators of requirements of the administrative law
(disciplinary, administrative responsibility). .Subject of the administrative relationship can be
considered on the basis of qualifications on the types of administrative
relationships. Depending on the characteristics of members of administrative relations
are allocated the most typical of their species:
а) between subjects executive at
different institutional level (for example, higher and lower organs);
b) between
the subjects of executive power, at a similar institutional level (eg, 2 of the
Ministry, the administration of 2 areas);
c) between the subjects of executive power and are
within their institutional subordination (reference) state associations
(corporations, corporations, etc.), enterprises and institutions;
d) between
the subjects of executive power and are not in their organizational subordination
of public associations, enterprises and institutions (on financial control,
administrative supervision, etc.);
d) between
the subjects of executive power and executive bodies of local self-government;
e) between
the subjects of the executive branch and not the state economic and
socio-cultural associations and enterprises and institutions (businesses,
etc.);
g) between
the subjects of executive power and public associations;
r) between the subjects of the executive branch and
citizens.
In all the above relations are always involved one or
other executive body.
. For any relationship is characterized by the
appearance of it due to certain legal facts, based on the fact that under the
legal facts are understood actions or events which occur as a result of the
emergence, modification or termination of legal relations.
Administrative
and legal relations arise if the conditions stipulated by administrative
regulations.
Actions
are the result of active expression of the subject. By the nature of different
lawful and unlawful actions.
Lawful
actions always correspond to the requirements of administrative law. As the
legal facts are the lawful actions of citizens and other entities of
administrative-legal relations, For example,
filing a citizen complaint gives rise to specific administrative relationship
between him and the executive body (official), to whom the complaint is
addressed.
A special
feature of the legal facts in administrative law is that the main type of
lawful acts are acts of the subjects of executive power, having an individual,
ie relating to a particular destination and the cause, nature. direct their
legal consequences - the emergence, change or termination of the
administrative-legal relations. For example, the order of appointment entails
the emergence of public-service relationship is a kind of administrative law. [4]
Under the
wrongful acts are those that do not meet the requirements of administrative
law, violate them. These include
administrative or disciplinary reasons, as the most characteristic areas of
public administration. They involve the jurisdictional relationship. These
are also omissions (for example, failure to service the Interior necessary
measures to ensure public order).
Under the
events are understood phenomenon, not dependent on the will of man (death,
disaster).
Administrative
and legal relations are classified according to various criteria.
Initially,
two distinct groups of administrative relations:
А)relationship, directly expressing the basic formula of the control
action (subject-object), which is clearly manifested overbearing nature of
state-management activities, they can be described as power relations,
sometimes referred to as the core;
b) relationship, folding outside the direct control
action on a particular object, but organically related to its implementation;
characterized as not fundamental relationship;
The first
of these express the essence of management, the latter associated with this
entity, but it is not directly express. The former include the relationship
between superiors and subordinates links in the executive branch, between
officials, managers and their subordinate employees in the service of
administrative and managerial staff, between the executive bodies (officials)
and citizen, with a ton of legal and administrative duties, etc. .
The second
group is characterized by the fact that such a relationship even though there
directly in the field of public administration, but do not seek to directly
control the impact of the subject to a managed object. For example, the
relationship between the two parties operating in the field of public
administration, but not related to one another hierarchy. Thus the two
ministries may enter into a relationship, the necessity of producing a joint
legal act or agreement of mutual governance issues, etc.
Sometimes distinguished
subordinate and coordinating administrative and legal relations. Subordinate
call those relationships that are built on authoritarianism (potency) of legal
expressions of the will of the subject of management. Coordination bonds are
called, in which authoritarianism is not named.
Coordination
is a list of the main manifestations of state-management, that is, in fact
coincides with its legally powerful manifestations. The most significant
interest is the classification of administrative-legal relations on the legal
nature of the interaction of their participants. Thus, stand vertical and horizontal relationship.
Vertical recognized relationship, which expresses the
essence of the administrative regulation and typical for the state and
management of subordinate relationship between subject and object management. They often
occur between sibling parties. Power advocates an
appropriate subject of executive power (the executive body, public authority).
Horizontal
administrative and legal relationship recognized by those in which the parties
actually and legally equal. In them there is no legally-power dictates the one
hand, binding the other. Such a relationship in public administration are
fairly rare, compared with the vertical. Variants of such relations can be of several bodies on the preparation
and publication of joint decisions, agreements (administrative contracts)
between them on organizational matters.
By
composition of members of a fall into in-group and out-group. In in-group respects
the relevant legal norms perpetuate a system of executive bodies, organization
of services in them, the authorities and employees, their relationships, forms
and methods in-group work in public bodies. Such managerial attitudes represent
the interests of the whole system of self-organization of executive power from
top to bottom, and each of its managers. Parties in their favor subordinate
executive bodies and their structural units, as well as officials. Or consider
the relationship of executive power with their subordinate organizations, as
well as the administration's attitude of organizations whose activities are
governed by administrative law (military units, universities, etc.) with their
employees, students, etc, In the second
case are the relations connected with the direct action on objects which are
not included in the system (mechanism) executive power (for example, of
citizens, public associations, commercial entities, including private). In principle, this
relationship and the management of public enterprises and institutions, as they
are not subject to the executive. The other side of this relationship actually
serves as a "third person".
In summary you can get a generalized description of
the subject of administrative law, ie the social relations that are
regulated by rules of administrative law. These are management relations as:
a) administrative relations, in which immediately
realized the objectives, functions and powers of the executive;
b) the
nature of intra-managerial relations arising in the course of the subjects of
legislative (representative) and the judiciary and prosecutors;
a)
management relations arising from the participation of local government
entities;
d)
Separate management of institutional relationships that arise in the
"inner" life of public associations and other non-state groups, as
well as in connection with the implementation of public associations
externally-governmental functions and powers.
Control exists in all spheres of public life, this
activity is high volume and diverse in content. In many cases, management
activity is so specific, so closely associated with a particular type of
controlled activities that its rules do not govern the administrative and other
branches of law. Thus, management activities of the management of enterprises,
institutions in respect of their employees governs labor law, inquiries and
preliminary investigation - criminal procedure law, administrative relations associated
with the financial - financial law. It is therefore necessary to define the
subject of administrative law to clarify that: it handles all administrative
relations, except those that are regulated by other branches of law of the
Republic of Kazakhstan.
References
1. The
Constitution of the Republic of Kazakhstan .
2. Administrative Law of the Russian Federation. Acad.
AP Alekhin, AA Karmolitsky, M. Kozlov.. Moscow, "Parable of TEIS,
1996., page 640.
3.
Administrative Law. Tutorial. Bakhrakh DN, ed. BEK, Moscow, 1996., P. 355. 355.
4. The
general theory of law. Т1, Alekseev, SS, Moscow, 1981 P.245.
References:
1. The Constitution of the Russian Federation, Moscow, Izd. Novaya Volna, 1996, page 62.
2. Administrative Law of the Russian Federation. Acad.
AP Alekhin, AA Karmolitsky, M. Kozlov, Moscow, "Parable of TEIS,
1996., p.640.
3.
Administrative Law. Tutorial. Bakhrakh DN, ed. BEK, Moscow, 1996., P. 355.
4. The
general theory of law. T1, Alekseev, SS,
Moscow, 1981, p.245.